Anthony J. CASALE, M.D., Plaintiff-Appellant, v. NATIONWIDE CHILDREN’S HOSPITAL, Defendant-Appellee.
No. 16-3906
United States Court of Appeals, Sixth Circuit.
Filed March 07, 2017
359
William G. Porter, II, Daniel J. Clark, Vorys, Sater, Seymour & Pease, Columbus, OH, for Defendant-Appellee
BEFORE: SILER, MOORE, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiff Anthony Casale appeals the district court’s order of summary judgment in favor of defendant Nationwide Children’s Hospital (NCH) on his Ohio law contract and tort claims. Casale, a successful physician, alleges NCH persuaded him to leave a stable career in Kentucky for the promise of a prominent hospital leadership position, but “pulled the rug out from under him” and withdrew its offer before he started. Like the district court, however, we must acknowledge “the law does not provide redress for every act of unfairness.” Finding no error requiring reversal, we affirm.
I.
In early 2010, with its Chief of Urology set to retire, NCH reached out to Dr. Anthony Casale to gauge his interest in running its urology program. Initially, Casale was a reluctant candidate. He already had “a pretty good job” as a tenured professor and acting Chair of the Department of Urology at the University of Louisville’s School of Medicine, and he “intended to stay at the University of Louisville.” Still, knowing his position as acting Chair remained “quite unsettled,” plaintiff decided to pursue the offer. After two days of interviews, NCH’s Chief Operating Officer, Dr. Rick Miller, informed Casale that NCH planned to make him an offer.
Defendant sent Casale a draft offer letter in late July. Miller emphasized the letter was just “the first offer.” “[I]f it’s something that’s not adequate,” he added, “I want you to come back and ask for it, and we’ll probably meet it.” Over the next few days, he and Casale discussed salary and bonuses. NCH proposed that Casale’s annual bonus be tied to his productivity, including the number of patients he treated. Casale recognized it would take him time to build his practice as a doctor new to the Columbus area, and instead asked that NCH guarantee his bonus for the first two years of employment. NCH agreed. It
In its final form, the offer letter included no express durational term, or limit on defendant’s ability to terminate Casale’s employment—a topic plaintiff acknowledged he did not discuss with Miller. Casale was also free to terminate his employment under the agreement, provided he repay his signing bonus and relocation expenses “if for some reason [he] decided to leave NCH prior to eighteen months of service.” Plaintiff signed the offer letter and faxed it to NCH on August 4, 2010.
Shortly after Casale’s acceptance, NCH sent him an information packet regarding its medical staff credentialing procedure and instructions for obtaining an Ohio medical license. Casale’s offer letter specified his employment was “contingent upon verifying [his] Ohio medical license and obtaining and maintaining medical staff privileges at NCH.” The packet warned that securing a license and staff credentialing was a “lengthy” process which could take 10 to 12 weeks to complete. Given his January 1, 2011, start date, Casale understood he had limited time to submit his application materials.
Yet by early December, plaintiff was neither licensed to practice in Ohio, nor credentialed as an NCH medical staff member. The parties “vigorously dispute[d]” the cause of the delay before the district court, and dispute it further on appeal. Defendant faults Casale for failing to submit complete application materials in a timely manner. Plaintiff maintains he did “everything within his power” to provide the necessary information, and instead pins the blame on Pam Edson—an NCH employee whose assistance with the process was “so inadequate” and “erroneous[ ],” it resulted in “[m]onths of licensing delay.” Whatever the cause, defendant told Casale it could not “employ [him] until [his] licensure and credentialing is complete,” and delayed his start date until February 1, 2011.
Meanwhile, plaintiff’s former colleague Dr. Stephen Wright sent NCH a peer review reference to be considered as part of the credentialing process. Karen Allen, a member of NCH’s medical staff services team, flagged the review as “very poor” and forwarded it to Drs. Brilli (NCH’s Chief Medical Officer), Teich (NCH’s Staff President), and Rothermel (Chair of NCH’s credentials committee). Plaintiff contends the disclosure of this information outside the credentialing process violated Ohio’s peer review confidentiality restrictions. See
Casale also attended two meetings at NCH in late 2010—one to assist with his licensing and credentialing applications, and another to meet with future NCH colleagues. At the first, plaintiff met with NCH employees Kelly Wheatley and Julie Zaremski. Both employees described the meeting as uncomfortable and unproductive; plaintiff appeared “visibly frustrated” and did not answer their questions concerning certain “holes” and “discrepanc[ies]” in his work history. Plaintiff agreed the meeting was “a negative experience for everyone,” but attributed this to Wheatley and Zaremski, who “had no experience” with NCH’s credentialing process. At the second meeting, plaintiff spoke with some of NCH’s surgeons, including those “who might refer [patients] to him.” Upon leaving, Casale purportedly told an-
After the meetings, Miller had second thoughts about plaintiff. Casale had been “somewhat ambivalent” about joining NCH from the beginning. Plaintiff seemed more “focus[ed] on his issues in Louisville” than on his license and credential paperwork, which he took roughly three months to complete, resulting in a delayed start. Then, when he arrived for meetings at NCH, Casale had difficulty connecting with defendant’s staff. One employee assigned to help with his credentials described their interaction “as the most difficult meeting she has ever had with a physician.” “Any one of these [issues] we’d probably ignore,” Miller observed, “but in aggregate, they are perhaps very concerning.”
Ultimately, NCH asked plaintiff to withdraw his acceptance. Casale refused. Having “given up everything in Louisville in order to keep [his] commitment to NCH,” he requested an in-person meeting with Miller to resolve NCH’s concerns. NCH declined his request and formally withdrew its offer of employment. Thereafter, the University of Louisville accepted Casale back onto its faculty as acting Chair of Urology, but with a lower salary and no tenure.
II.
Casale filed suit against NCH in 2011, alleging its actions cost him significant damages and impaired his future employment prospects. After the district court granted its motion to dismiss two of plaintiff’s claims, NCH moved for summary judgment on the remaining five: breach of express contract, breach of implied contract, anticipatory repudiation, promissory estoppel, and defamation. While it acknowledged defendant had treated plaintiff “quite shabbily,” the district court granted the motion.
Casale timely appeals.1 He also moves to supplement the record on appeal, while NCH moves to strike “certain portions” of plaintiff’s brief.
III.
We review the district court’s grant of summary judgment de novo. Keith v. Cty. of Oakland, 703 F.3d 918, 923 (6th Cir. 2013). “Summary judgment is proper ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting
A.
Ohio recognizes the doctrine of at-will employment, meaning the “relationship between employer and employee is
For an individual hired under contract, “there is a strong presumption of at-will employment, unless the terms of the agreement clearly indicate otherwise.” Padula v. Wagner, 37 N.E.3d 799, 808 (Ohio App. 2015). On its face, the offer letter does not rebut that presumption. It includes no express durational term and no limit on either party’s ability to terminate the relationship.2 And “[w]here a contract of employment does not state the duration of employment, employment is considered to be at will.” Clark, 736 N.E.2d at 973.
Still, Casale insists several of the letter’s provisions demonstrate an express agreement for an initial term of three years’ employment, renewable at his option thereafter. For instance, the letter lists
“In the absence of facts and circumstances which indicate that the agreement is for a specific term, an employment contract which provides for an annual rate of compensation, but makes no provision as to the duration of the employment, is not a contract for one year, but is terminable at will by either party.” Henkel v. Educ. Research Council of Am., 45 Ohio St. 2d 249, 344 N.E.2d 118, 118 (1976). Plaintiff agrees “[t]he simple statement of an annual rate, without more [i]s not enough . . . to constitute an express term of duration” under Henkel. “However,” he continues, “it was enough” under the Ohio Supreme Court’s decision in Kelly, “where the letter agreement also provided for a monthly amount, a settling up at year-end, and a guaranteed gross sum every year.” Appellant’s Br., at 33 (citing Kelly v. Carthage Wheel Co., 62 Ohio St. 598, 57 N.E. 984 (1900)). Casale argues the additional terms here—the guaranteed bonuses, potential future raises, and academic support—go further than the “settling up” in Kelly to prove NCH’s
Neither the statement of an annual rate of pay, Henkel, 344 N.E.2d at 118, nor the promise of “career advancement opportunities,” Daup v. Tower Cellular, Inc., 136 Ohio App. 3d 555, 737 N.E.2d 128, 133 (2000) (citation omitted), such as bonuses and academic funding, modify the presumed at-will relationship. See id. at 133-34 (promises to develop “many other ventures together” insufficient to alter at-will employment); Clark, 736 N.E.2d at 972-73 (employment contract specifying annual salary and bonus with no mention of duration is an at-will contract); Shaw v. J. Pollock & Co., 82 Ohio App. 3d 656, 612 N.E.2d 1295, 1298 (1992) (“The potential of future profitsharing is not a fact or circumstance which transforms a contract terminable at will into a contract for a term of years.”). This is so because, as the district court explained, provisions concerning bonuses, raises, and research funding per year ultimately suffer from the same defect as provisions concerning annual compensation: they “refer to how much NCH will support per year; they say nothing to guarantee employment for a specific duration.”
“The general rule in Ohio is that unless otherwise agreed to by the parties, an employment agreement purporting to be permanent or for life, or for no fixed time period is considered to be employment terminable at the will of either party.” Humphreys v. Bellaire Corp., 966 F.2d 1037, 1040 (6th Cir. 1992) (citing Henkel, 344 N.E.2d at 118). Because the offer letter does not “clearly indicate” a specific term of employment, plaintiff has failed to rebut the “strong presumption” in favor of an at-will relationship. Padula, 37 N.E.3d at 808. NCH’s withdrawal of the employment offer was therefore not a breach of an express contract.
B.
While failure to specify duration in the offer letter may be fatal to a claim for breach of express contract, the same cannot be said of a claim for breach of implied contract. See, e.g., Wright, 653 N.E.2d at 384. Contractual limits on an employer’s right to discharge an employee need not be in writing; they can also be implied from “the ‘facts and circumstances’ surrounding the employment-at-will relationship.” Id. (quoting Mers, 483 N.E.2d at 154). “These facts and circumstances include the character of the employment, custom, the course of dealing between the parties, company policy,” oral representations, and “any other fact which may illuminate the question.” Id. (internal quotation marks omitted).
Plaintiff argues that even if NCH did not expressly promise him a specific term of employment, the facts and circumstances here nevertheless support the finding of an implied contract for a specific term of employment. In this regard, Casale compares his case to Miller v. Lindsay-Green, Inc., No. 04AP-848, 2005 WL 3220215 (Ohio Ct. App. Dec. 1, 2005), and Wright, 653 N.E.2d 381. Neither comparison is apt.
Miller involved an employee who claimed his employer made an oral promise to employ him for a ten-year period. Miller, 2005 WL 3220215 at *1, *4. Plaintiff cites Miller for the proposition that
But a claimant proceeding on a theory of an implied-in-fact contract cannot. Id. “On the contrary, the existence of . . . [an] implied-in-fact contract[ ] . . . hinge[s] upon proof of all the elements of a contract.” Id. at 1228 (citation omitted). “To establish a contract implied in fact, a plaintiff must demonstrate that the circumstances surrounding the parties’ transaction make it reasonably certain that an agreement was intended.” Id. at 1228-29 (citation omitted).
The employee in Wright, who was hired without a written agreement, made that showing. Honda terminated Wright for violating its anti-nepotism policy, but she presented evidence demonstrating “that an implied employment agreement existed [under] which [she] could not be terminated unless she failed to perform her job adequately.” 653 N.E.2d at 384. Honda’s employee handbook, progress reports, and promotional letters emphasized the plaintiff’s “continued growth” with the company, and her supervisor testified “that if an employee performs his . . . job in an acceptable manner,” he can “expect to have continued employment with Honda.” Id. “Once [Wright] became aware of [the anti-nepotism] policy,” management at first informed her “that she had no reason to be concerned and that there were other employees who retained their positions under similar circumstances.” Id. at 385. Despite these assurances, Wright’s supervisor sent her home from work to “investigate” the policy violation, then invited Wright back “as if nothing had happened,” only to terminate her a month later. Id. at 383, 385.
These “[p]articularly egregious” circumstances did not befall Casale. Id. at 385. Plaintiff acknowledged he and Miller had no discussions “regarding the circumstances under which [his] employment with [NCH] could be terminated.” Unlike in Wright, plaintiff points to no handbook, progress reports, or statements by management suggesting “that if an employee performs his . . . job in an acceptable manner,” he can “expect to have continued employment” at NCH. See id. at 384. Further, the circumstances plaintiff does identify are unrelated to duration.4 For in-
Finally, plaintiff argues that to accept NCH’s offer, he left a secure, lucrative position at the University of Louisville, one he would not have abandoned if he understood defendant was offering only at-will employment. Here again, Casale confuses facts that may support the finding of an equitable remedy, such as promissory estoppel, with facts necessary to demonstrate an implied-in-fact contract. See Dunn, 874 N.E.2d at 1228-29; see also Clark, 736 N.E.2d at 973 (no anticipatory repudiation where the at-will plaintiff “made [the] necessary arrangements to leave his former employer, move to the new employer’s city, and pursue his job duties,” and the defendant withdrew its employment offer before he started). As the district court put it, plaintiff’s “citation to his own testimony that he would not have accepted an at-will offer or that another chief was given a contract with a term of five years does nothing to assist a trier of fact in determining whether both parties to this agreement mutually assent-
Because plaintiff has failed to demonstrate an express or implied contract for a specific term of employment, the district court did not err in granting defendant summary judgment on his claims for breach of contract and anticipatory repudiation.
C.
Invoking equitable remedies more directly, plaintiff also alleged a claim of promissory estoppel. To prevail on this claim, Casale must show: (1) a clear and unambiguous promise on the part of NCH; (2) his reliance on the promise; (3) that the reliance was reasonable and foreseeable; and (4) that he was injured as a result of his reliance. Dunn, 874 N.E.2d at 1227. Although plaintiff’s willingness to “giv[e] up his . . . secure employment in reliance upon [NCH’s] representations” may well establish the second element, see Patrick v. Painesville Commercial Props., Inc., 99 Ohio App. 3d 360, 650 N.E.2d 927, 931 (1994), the district court found Casale failed at the first, having cited no evidence “of any promise of employment for a specific term.” Casale argues this decision was in error, because Ohio does not require that a promise for continued employment be “for a specific term.”
Plaintiff misinterprets the district court’s holding. As explained in its order denying plaintiff’s motion to alter or amend the judgment, the court used the
This was the reason the district court granted defendant summary judgment on Casale’s promissory estoppel claim—because plaintiff failed to identify the “clear and unambiguous promise” upon which he relied. Shaw, 612 N.E.2d at 1298. And the court was right to require that the promise be specific. “[V]ague, indefinite promises of future employment or mere representations of future conduct without more specificity do not form a valid basis for the application of the doctrine of promissory estoppel.” Daup, 737 N.E.2d at 134 (internal quotation marks omitted). Likewise, “[i]n the absence of a specific promise of continued employment, a promise of future benefits or opportunities does not support a promissory estoppel exception to the employment-at-will doctrine.” Clark, 736 N.E.2d at 974 (internal quotation marks omitted).
Plaintiff now argues he demonstrated a specific promise of employment for “a minimum three-year term, renewable by him, through age 70,” based on the offer letter, and a discussion he had with Miller about working to age 70 before signing it. However, Casale did not press either point below, and “the failure to present an issue to the district court forfeits the right to have that argument addressed on appeal.” 600 Marshall Entm’t Concepts, LLC v. City of Memphis, 705 F.3d 576, 585 (6th Cir. 2013) (citation omitted). “Our function is to review the case presented to the district court,” not “a better case fashioned
D.
Plaintiff next argues the district court erred in rejecting his claim for wrongful discharge in violation of public policy. We disagree.
Ohio recognizes a tort action for wrongful discharge in violation of public policy as another exception to the at-will rule. McGowan v. Medpace, Inc., 42 N.E.3d 256, 260-61 (Ohio App. 2015). To succeed on this claim, an employee must show, among other elements, “that a clear public policy existed,” and that his termination “jeopardized th[at] public policy.” Id.
According to plaintiff, the “clear public policy” at issue here is expressed in
However, we need not determine whether this ruling is correct because plaintiff’s wrongful termination claim fails for another reason: he never pleaded it. Plaintiff asserted this cause of action for the first time in his brief opposing summary judgment. A nonmovant may not advance new claims in response to a motion for summary judgment or on appeal. Bridgeport Music, Inc. v. WB Music Corp., 508 F.3d 394, 400 (6th Cir. 2007). “To permit a plaintiff to do otherwise would subject defendants to unfair surprise.” Tucker v. Union of Needletrades, Indus. & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005). Regardless of the merits, the district court did not err in rejecting plaintiff’s wrongful discharge claim.
E.
Finally, plaintiff challenges the district court’s grant of summary judgment on his defamation claim. “Defamation is a false statement published by a defendant with some degree of fault, reflecting injuriously on a person’s reputation . . . or affecting a person adversely in his or her trade, business or profession.” Gilson v. Am. Inst. of Alt. Med., 62 N.E.3d 754, 769-70 (Ohio App. 2016) (internal quotation marks omitted). To establish defamation, a plaintiff must show: (1) the defendant made a false and defamatory statement concerning the plaintiff; (2) which was published; (3) injuring the plaintiff; and (4) that the defendant acted with the requisite degree of fault. Id.
Casale argues defendant withdrew its employment offer due in part to false statements by its employees, including Karen Allen’s email concerning Dr. Wright’s “very poor” peer review reference, her “opinion” that “there is no way we should hire this man,” Dr. Miller’s re-
Proffer of a “vague, one-sentence” argument before the district court does not preserve an issue for appeal. Berera v. Mesa Med. Group, PLLC, 779 F.3d 352, 361 (6th Cir. 2015) (brackets and citation omitted). Moreover, the “better case” Casale has “fashioned after [the] district court’s unfavorable order” does not advance his claim. 600 Marshall, 705 F.3d at 585 (citation omitted). Allen’s statements are protected opinions. See Byrne v. Univ. Hosps., No. 95971, 2011 WL 3630483, *4 (Ohio Ct. App. Aug. 18, 2011) (“A recommendation not to rehire is just that, a recommendation based on . . . subjective opinion.”). And Miller’s statements are substantially true—Casale acknowledged that he referred to an NCH meeting as a “waste of . . . time,” and a staff member did indeed report him as “the most difficult of all of the physicians [she] had dealt with.” See Sweitzer v. Outlet Commc’ns, Inc., 133 Ohio App. 3d 102, 726 N.E.2d 1084, 1090 (1999) (Defamation is defeated where “the gist, or imputation, of the statement is substantially true”). Neither NCH employee defamed plaintiff.
Casale also argues the district court erred in rejecting his theory of forced republication. “The forced republication doctrine provides for proof of publication where a defamed person is forced to republish defamatory statements to a third party, such as a person who is required to
IV.
For the foregoing reasons, we affirm the district court’s judgment, and deny the pending motions to strike and to supplement the record as moot.