[Cite as Price v. Kaiser Aluminum Fabricated Prods., L.L.C., 2013-Ohio-2420.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



DENNIS PRICE                                               JUDGES:
                                                           Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                                Hon. John W. Wise, J.
                                                           Hon. Patricia A. Delaney, J.
-vs-
                                                           Case No. 12 CA 72
KAISER ALUMINUM FABRICATED
PRODUCTS, LLC

        Defendant-Appellee                                 OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Case No. 11 CV 1208


JUDGMENT:                                             Affirmed



DATE OF JUDGMENT ENTRY:                               June 5, 2013



APPEARANCES:

For Plaintiff-Appellant                               For Defendant-Appellee

JAMES R. COOPER                                       TODD L. SARVER
MORROW, GORDON & BYRD                                 STEPTOE & JOHNSON
33 West Main Street, P. O. Box 4190                   41 South High Street, Suite 200
Newark, Ohio 43058-4190                               Columbus, Ohio 43215
Licking County, Case No. 12 CA 72                                                         2

Wise, J.

          {¶1}   Plaintiff-Appellant Dennis Price appeals the decision of the Court of

    Common Pleas, Licking County, which granted summary judgment in favor of

    Defendant-Appellee Kaiser Aluminum Fabricated Products, LLC, on appellant’s civil

    complaint for wrongful discharge and age discrimination.1 The relevant facts leading to

    this appeal are as follows.

          {¶2}   Appellant was formerly employed with appellee, a producer of fabricated

    aluminum products, as a steelworker and, later, a supervisor in the company’s remelt

    department. Appellant started with the company in 1973, but resigned in 1994. He

    worked a couple of different jobs for a few years, but then came back as an employee

    of appellee in 1998.

          {¶3}   In March 2011, appellee terminated appellant, then age sixty, following an

    outside audit of the company’s computers and e-mail records. Appellee’s stated basis

    for the termination was appellant’s violation of appellee’s computer use policy, as

    further analyzed infra.

          {¶4}   On September 6, 2011, appellant filed a civil complaint against appellee in

    the Licking County Court of Common Pleas, alleging wrongful discharge and age

    discrimination under federal and Ohio law, as well as breach of contract and

    promissory estoppel claims.

          {¶5}   On April 30, 2012, appellee filed a motion seeking summary judgment on

    all counts in the complaint. On June 8, 2012, appellant filed a memorandum in

    opposition to the summary judgment motion. However, appellant therein effectively

1
  Defendant-Appellee was named in the underlying lawsuit as “Kaiser Aluminum &
Chemical Corporation.”
Licking County, Case No. 12 CA 72                                                     3


dropped his federal age discrimination claim on the basis of non-fulfillment of the

procedural requirements necessary to maintain such an action. On June 26, 2012,

appellee filed a reply in support of its motion.

      {¶6}   On August 28, 2012, the trial court issued a judgment entry granting

appellee’s summary judgment motion on all counts. The court concluded that appellant

had failed to present evidence of direct age discrimination, and that although appellant

had showed a prima facie case of age discrimination, he could not overcome

appellee’s legitimate, non-discriminatory reason for terminating him (i.e., using a

company computer to circulate sexually explicit material). The court also determined

that appellant failed to demonstrate a claim for promissory estoppel and that appellant

could not show the existence of a contract addressing the duration of his employment.

See Judgment Entry at 2-5.

      {¶7}   On September 26, 2012, appellant filed a notice of appeal. He herein

raises the following two Assignments of Error:

      {¶8}   “I. THE TRIAL COURT COMMITTED ERROR IN ITS DECISION AND

JUDGMENT THAT THERE WERE NOT GENUINE ISSUES OF MATERIAL FACT

CONCERNING         WHETHER        APPELLANT        WAS   THE    SUBJECT      OF    AGE

DISCRIMINATION IN VIOLATION OF SECTIONS 4112.02, 4112.04, AND 4112.99 OF

THE OHIO REVISED CODE AND OHIO LAW IN CONNECTION WITH THE

TERMINATION OF APPELLANT'S EMPLOYMENT BY APPELLEE.

      {¶9}   “II. THE TRIAL COURT COMMITTED ERROR IN ITS DECISION AND

JUDGMENT THAT THERE WERE NOT GENIUNE ISSUES OF MATERIAL FACT

CONCERNING WHETHER APPELLEE BREACHED AN EMPLOYMENT CONTRACT
Licking County, Case No. 12 CA 72                                                        4


WITH APPELLANT AND WHETHER APPELLANT WAS ENTITLED TO RELIEF

UNDER THE LEGAL DOCTRINE OF PROMISSORY ESTOPPEL.”

                                                 I.

      {¶10} In his First Assignment of Error, appellant (former employee) contends the

trial court erred in granting summary judgment in favor of appellee (former employer)

on appellant’s age discrimination claims under Ohio law. We disagree.

      {¶11} Civ.R. 56(C) provides, in pertinent part: “ *** Summary judgment shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,

timely filed in the action, show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law. * * * A summary

judgment shall not be rendered unless it appears from the evidence or stipulation, and

only from the evidence or stipulation, that reasonable minds can come to but one

conclusion and that conclusion is adverse to the party against whom the motion for

summary judgment is made, that party being entitled to have the evidence or

stipulation construed most strongly in the party's favor. * * *.”

      {¶12} As an appellate court reviewing summary judgment issues, we must stand

in the shoes of the trial court and conduct our review on the same standard and

evidence as the trial court. Porter v. Ward, Richland App. No. 07 CA 33, 2007-Ohio-

5301, 2007 WL 2874308, ¶ 34, citing Smiddy v. Wedding Party, Inc. (1987), 30 Ohio

St.3d 35, 30 OBR 78, 506 N.E.2d 212. The party moving for summary judgment bears

the initial burden of informing the trial court of the basis for its motion and identifying

those portions of the record that demonstrate the absence of a genuine issue of
Licking County, Case No. 12 CA 72                                                      5


material fact. The moving party may not make a conclusory assertion that the

nonmoving party has no evidence to prove its case. The moving party must specifically

point to some evidence that demonstrates that the nonmoving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving

party to set forth specific facts demonstrating that there is a genuine issue of material

fact for trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing

Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. A fact is material when it

affects the outcome of the suit under the applicable substantive law. See Russell v.

Interim Personnel, Inc. (1999), 135 Ohio App.3d 301, 304, 733 N.E.2d 1186.

                               Direct Age Discrimination Case

      {¶13} Under Ohio law, a prima facie case of age discrimination may be proved

either directly or indirectly. See, e.g., Peters v. Rock-Tenn Co., 180 Ohio App.3d 10,

903 N.E.2d 1256, 2008-Ohio-6444, ¶ 10. In order to establish a direct prima facie case

of age discrimination, an employee “ *** present[s] evidence, of any nature, to show

that an employer more likely than not was motivated by discriminatory intent.” See Hoyt

v. Nationwide Mut. Ins. Co., Franklin App. No. 04AP–941, 2005-Ohio-6367, 2005 WL

3220192, ¶ 58; Mauzy v. Kelly Servs., Inc. (1996), 75 Ohio St.3d 578, 664 N.E.2d

1272, paragraph one of the syllabus. If, however, the employee is unable to establish a

causal link or nexus between the employer's discriminatory statements or conduct and

the act that allegedly violated the employee's rights under the statute, then the

employee has not proved age discrimination by the direct method of proof.

Hershberger v. Altercare, Inc., Stark App.No. 2006CA00167, 2007-Ohio-1452, ¶ 62,
Licking County, Case No. 12 CA 72                                                       6

citing Byrnes v. LCI Communication Holdings Co. (1996), 77 Ohio St.3d 125, 672

N.E.2d 145.

      {¶14} Appellant first directs us to comments made by his supervisor, Dan Lilly,

on Lilly’s first day in that position in 2008. These comments were, in essence, simple

questions by Lilly as to how long appellant had been with the company and when he

planned to retire. See Price Depo. at 72. However, “[t]o establish direct evidence of

discrimination through a supervisor's comments made in the workplace, the remarks

must be clear, pertinent, and directly related to decision-making personnel or

processes.” Egli v. Congress Lake Club, Stark App.No. 2009CA00216, 2010-Ohio-

2444, ¶ 32, quoting Klaus v. Kilb, Rogal & Hamilton Co. of Ohio (S.D.Ohio 2006), 437

F.Supp.2d 706, 725-726 (internal quotations and additional citations omitted). Upon

review, we find reasonable minds could only conclude that Lilly’s brief and innocuous

inquiries in this regard did not establish direct evidence of age discrimination, as urged

by appellant.

      {¶15} Appellant also contends that the record would show that other employees

impacted by the computer audit were given progressive discipline rather than

termination, as further detailed infra. However, "[d]irect evidence is evidence that

proves the existence of a fact without requiring any inferences." Rowan v. Lockheed

Martin Energy Sys., Inc. (6th Cir. 2004), 360 F.3d 544, 548. We agree with appellee’s

response herein that such actions by the company would potentially fall under the

category of indirect evidence of discrimination, rather than direct.
Licking County, Case No. 12 CA 72                                                     7

                              Indirect Age Discrimination Case

      {¶16} Without direct proof of discrimination, an employee may establish a prima

facie claim of age discrimination indirectly by demonstrating he or she (1) was a

member of the statutorily protected class, (2) was discharged, (3) was qualified for the

position, and (4) was replaced by, or the discharge permitted the retention of, a person

of substantially younger age. Coryell v. Bank One Trust Co., N.A., 101 Ohio St.3d 175,

803 N.E.2d 781, 2004-Ohio-723, ¶ 20.

      {¶17} In the case sub judice, appellant’s age puts him in a statutorily protected

class for his present claim (see R.C. 4112.14), and the fact of his discharge is

undisputed. He was a management employee without prior disciplinary action and was

generally performing the duties of his position. He was replaced by a person of

substantially younger age. Appellee herein does not dispute the existence of a prima

facie case. See Appellee’s Brief at 12.

      {¶18} Upon review of the record, and in light of the aforesaid facts, we conclude

appellant has demonstrated a genuine issue of material fact as to a prima facie case of

age discrimination.

      {¶19} We thus move on to the next step in the analysis. If a plaintiff establishes

a prima facie case of age discrimination, the burden shifts to the employer to provide

some legitimate, nondiscriminatory reason for the action taken. Hoyt v. Nationwide,

supra, at ¶ 59, citing Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 503, 575

N.E.2d 439. If the employer establishes a nondiscriminatory reason for termination, the

employee then bears the burden of showing that the employer's proffered reason was

a pretext for impermissible discrimination. Owens v. Boulevard Motel Corp. (Nov. 5,
Licking County, Case No. 12 CA 72                                                     8

1998), Franklin App. No. 97APE12–1728, 1998 WL 886502; Cruz v. S. Dayton

Urological Assoc., Inc. (1997), 121 Ohio App.3d 655, 659, 700 N.E.2d 675. The

employee must demonstrate that the employer's nondiscriminatory reason was false

and that discrimination was the real reason for the action taken. Wagner v. Allied Steel

& Tractor Co. (1995), 105 Ohio App.3d 611, 617, 664 N.E.2d 987. Mere conjecture that

the employer's proffered reasons are pretextual is insufficient to withstand a summary-

judgment motion. See Surry v. Cuyahoga Community College, 149 Ohio App.3d 528,

2002-Ohio-5356, 778 N.E.2d 91, ¶ 24.

      {¶20} Appellant admitted in his deposition that he had transmitted at least some

sexually explicit materials via his work computer during working hours. See Price

Depo. at 32-55. Many of them were sent by persons outside of the company, but

appellant forwarded them to some of his fellow employees. The audit revealed images

including nude women, male/female oral sex, female/female oral sex, and a link to a

website entitled “Boob Test,” which entailed multiple pictures of female breasts. On

February 23, 2011, appellant received another image of females engaging in oral sex,

in response to which he sent the following e-mail: “Friends, please don't send anything

like this to me anymore. The cocksuckers I work for are cracking down, fired 1 guy last

week for emails. It's been a good run.”

      {¶21} Appellant has maintained that he did not forward emails to persons who

would be offended, nor did he send them to any female employees. However,

appellee’s reason for termination was based on its computer use policy, which

expressly prohibited "inappropriate use" and stated that the computer system "must not

be used to transmit any communications that contain *** [s]exually explicit material."
Licking County, Case No. 12 CA 72                                                    9


The policy also states in pertinent part: "Penalties for computer users who violate any

Kaiser I/T Policy may include immediate discharge or other disciplinary action as set

forth in Kaiser’s Code of Business Conduct ***.” (Emphasis added). Appellant and a

41-year-old co-worker were ultimately terminated; three co-workers ranging from age

35 to 61 were given written warnings; and four co-workers ranging from age 48 to 53

were given verbal warnings. Appellant does not herein assert that these three levels of

discipline were somehow unrelated to the level of sexually explicit e-mails or images

sent or received.

      {¶22} Upon review, although a prima facie case of age discrimination was

initially established by appellant under Ohio law, we find reasonable jurors could

conclude only that appellee’s basis for termination of appellant was nondiscriminatory

and nonpretextual; thus, reasonable jurors would not find that appellant was subjected

to age discrimination via his termination. Therefore, we hold summary judgment was

properly granted in favor of appellee in that regard.

      {¶23} Appellant's First Assignment of Error is overruled.

                                               II.

      {¶24} In his Second Assignment of Error, appellant argues that summary

judgment in favor of appellee was improper as to his claims based on breach of

contract and promissory estoppel. We disagree.

                                 Employment Contract Claim

      {¶25} Appellant first claims that summary judgment in favor of appellee was not

warranted based on his claim that appellee breached certain alleged contracts of

employment.
Licking County, Case No. 12 CA 72                                                        10


         {¶26} Generally, under Ohio law, at-will employment relationships may be

    terminated by either party at any time for any reason not contrary to law. Escott v.

    Timken Co., 153 Ohio App.3d 529, 795 N.E.2d 64, 2003-Ohio-3370, ¶ 12, citing

    Bucher v. Sibcy Cline, Inc. (2000), 137 Ohio App.3d 230, 235, 738 N.E.2d 435. There

    is a strong presumption of at-will employment under Ohio law. See Mers v. Dispatch

    Printing Co. (1985), 19 Ohio St.3d 100, 102-103. However, there is a well-established

    exception to the at-will doctrine based on contract theory; in other words, an employee

    may be able to establish that there exists “either an express or an implied contract to

    overcome the presumption of an at-will relationship.” See Reasoner v. Bill Woeste

    Chevrolet, Inc.(1985), 134 Ohio App.3d 196, 200, 730 N.E.2d 992.

         {¶27} Appellant herein relies on two assertions of a contract for employment.

    The first is language from his written employment agreements for non-bargaining

    personnel, both of which deal largely with the protection of proprietary information and

    intellectual property. The agreements, one in 1986 (when he became a supervisor) and

    one in 1999 (after he resumed employment in 1998), both state in pertinent part:

    “[Appellee Kaiser Aluminum] employs and shall continue to employ [Appellant] Price at

    such compensation and for such a length of time as shall be mutually agreeable to

    [Appellee] and [Appellant]." Upon review, we find this agreement language to be so

    indefinite regarding such fundamental terms as salary, duration, and mutual

    expectations that it cannot overcome the presumption of at-will employment.2



2
   Although our research has uncovered no Ohio case law addressing the “as shall be
mutually agreeable” language, we note a California appellate court has interpreted
similar language as merely creating a contract of employment terminable at will. See
Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986), 187 Cal.App.3d 299, 316, 231
Cal.Rptr. 820.
Licking County, Case No. 12 CA 72                                                    11


      {¶28} Appellant secondly relies on statements made by his plant manager, Eric

Engermeir, which appellant claims increased his expectations of               continued

employment until his time of planned retirement. Appellant testified that when he told

Engermeir that he intended to retire at age 62, Engermeir responded that appellant

“wasn’t getting out before [Engermeir] did” and told appellant “you can’t leave me here,

I need you.” Price Depo. at 69. However, “ *** subjective interpretation of praise given

for [one's] work, leading to a personal but objectively unfounded sense of job security,

cannot alter in law the at-will nature of [one's] job status.” Reasoner, supra, quoting

Weiper v. W.A. Hill & Assoc. (1995), 104 Ohio App.3d 250, 258, 661 N.E.2d 796, 801.

Moreover, appellant fails to explain how the Statute of Frauds (R.C. 1335.05), which in

Ohio covers an employment agreement for a period of more than one year (see, e.g.,

Soteriades v. Wendy’s of Fort Wayne, Inc. (1986), 34 Ohio App.2d 222, 224), would be

satisfied by the above isolated verbal statements of Engermeir.

      {¶29} We therefore find no genuine issue of material fact in regard to appellant’s

contract-based claim.

                                 Promissory Estoppel Claim

      {¶30} Another exception to the at-will doctrine is based on the application of

promissory estoppel. Promissory estoppel is an equitable doctrine for preventing the

harm resulting from reasonable reliance upon false representations. GGJ, Inc. v.

Tuscarawas Cty. Bd. of Commrs., Tuscarawas App.No. 2005AP070047, 2006-Ohio-

2527, ¶ 11, citing Karnes v. Doctors Hosp. (1990), 51 Ohio St.3d 139, 142, 555 N.E.2d

280. The party asserting promissory estoppel bears the burden of proving, by clear and

convincing evidence, all of the elements of the claim. In re Estate of Popov, Lawrence
Licking County, Case No. 12 CA 72                                                    12


App. No. 02CA26, 2003-Ohio-4556, ¶ 30. The elements necessary to establish a claim

for promissory estoppel are: (1) a promise clear and unambiguous in its terms; (2)

reliance by the party to whom the promise is made; (3) the reliance must be

reasonable and foreseeable; and (4) the party claiming estoppel must be injured by the

reliance. Schepflin v. Sprint-United Telephone of Ohio (April 29, 1997), Richland

App.No. 96-CA-62-2, 1997 WL 1102026, citing Stull v. Combustion Engineering, Inc.

(1991), 72 Ohio App.3d 553, 557, 595 N.E.2d 504.

      {¶31} Appellant again directs us to the statements made by his plant manager,

Eric Engermeir, which appellant claims he relied upon as a promise of job security until

his retirement. However, even comments by an employer to the effect that an

employee has a secure future or position with the company have been found to be

insufficient to establish a clear promise for purposes of a promissory estoppel claim.

See Anders v. Specialty Chemical Resources, Inc. (1997), 121 Ohio App.3d 348, 351-

52; Clipson v. Schlessman (1993), 89 Ohio App. 3d 230, 233-34. Furthermore,

appellant conceded that he did not have any other job offers and did not attempt to find

another job during his second tenure of employment with appellee from 1998 to 2011.

See Price Depo. at 71. As such, we find he cannot show reasonable, detrimental

reliance upon any purported promise. Furthermore, we find no merit in appellant’s

contention that the “[p]enalties *** may include immediate discharge or other

disciplinary action” language in the computer use policy created a reasonable

expectation that appellee would apply progressive discipline to a long-serving

employee.
Licking County, Case No. 12 CA 72                                                    13


      {¶32} We therefore find no genuine issue of material fact in regard to appellant’s

promissory estoppel-based claim.

                                         Conclusion

      {¶33} The trial court did not err in granting summary judgment to appellee on

appellant's claim of breach of employment contract and claim for relief under the

doctrine of promissory estoppel.

      {¶34} Appellant's Second Assignment of Error is overruled.

      {¶35} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Licking County, Ohio, is hereby affirmed.



By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.


                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
JWW/d 0520
Licking County, Case No. 12 CA 72                                             14


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




DENNIS PRICE                               :
                                           :
       Plaintiff-Appellant                 :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
KAISER ALUMINUM FABRICATED                 :
PRODUCTS, LLC                              :
                                           :
       Defendant-Appellee                  :         Case No. 12 CA 72




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.

       Costs assessed to appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
