Curry v. BlanchesterCurry v. Blanchester
Schroeder, Maundrell, Barbiere & Powers, Robert S. Hiller, Lawrence E. Barbiere, 5300 Socialville-Foster Road, Suite 200, Mason, Ohio 45040, for defendants-appellants/cross-appellees, Blanchester & Thomas E. White
Sharon Kornman, P.O. Box 1041, Wilmington, Ohio 45177, for defendants, Cindy Sutton and John T. Smith
O P I N I O N
YOUNG, P.J.
{¶1} Defendant-appellant/cross-appellee, Thomas White, appeals the decision of the Clinton County Court of Common Pleas partially granting and partially denying his motion for summary judgment in an action filed by plaintiff-
{¶2} Curry was hired by the Village in May 1990 to serve as clerk of courts for the Mayor‘s Court and secretary to the mayor. Over the years, Curry was given additional duties including providing clerical work for the police department, zoning office, and clerk-treasurer‘s officе. Curry also provided cleaning services for the municipal building pursuant to a written contract with the Village executed in May 2003.
{¶3} Plaintiff, Barbara Tindle, was hired by the Village in early 2002 to serve as deputy clerk for the Mayor‘s Court. Tindle assisted Curry and also performed clerical and secretarial work for other departments.
{¶4} Appellant, Thomas White, was elected in November 2003 to serve as mayor of the Village for a term beginning on January 1, 2004. Prior to the beginning of his term, White posted written notices around town holding himself out as mayor and notifying the public that the Mayor‘s Court would be closed effective January 1, 2004. On January 7, 2004, after taking office, White delivered written notices to Curry and Tindle stating that they were terminated. White also verbally instructed them to leave the premises. When they refused, White called the Clinton County Sheriff‘s Department for assistance. The deputy sheriffs advised Curry and Tindle they would be arrested for trespass if they refused to leave. After consulting with their attorney over the рhone, Curry and Tindle informed the deputies that an arrest would violate their civil rights. After consulting with the prosecutor‘s office, the
{¶5} In January 2004, the Village council adopted a resolution terminating Curry‘s and Tindle‘s positions with the Village.
{¶6} Pertinent to this case is a “Comprehensive Personnel Policies and Employee Handbook” adopted by resolution by council on September 26, 1996. This handbook contains provisions covering procedures for abolishing positions and for layoffs and employee recall. Curry asserts the procedures were not followed when her employment with the Village (and that of Tindle‘s) was terminated or when a new clerical position created by the Village was staffed after they were terminated. White avers that Curry and Tindle were employees “at will” who could be terminated by the Village at any time. White further avers that based upon the handboоk‘s disclaimer language, Curry and Tindle did not have a property interest in their positions; thus, the procedures contained in the handbook needed not be observed.
{¶7} Additionally pertinent to this case are Curry‘s allegations that White made three derogatory comments about her to other people. First, Curry alleges that while her raise was being discussed during an executive session of council, White stated that her “titties were hanging out and she was wearing short shorts.” Second, Curry alleges that White declared, in the presence of several people at a local pub, that Curry was “all tits and no brain.” Finally, Curry alleges that White told one of the Blanchester police officers that Curry was having an affair with the police chief.
{¶9} On September 29, 2006, White, joined by the Village, the vice mayor, and the three council members (“the defendants“) moved for summary judgment. In July 2007, the trial court ordered Curry and Tindle to file a supplemental brief delineating which of their original claims they intended to pursue against which specific defendants and which claims they intended to dismiss.
{¶10} In compliance with the trial court‘s order, Curry and Tindle subsequently filed a document in which they stated their intent to pursue the following nine claims against White and the defendants: (1) unlawful and/or wrongful discharge; (2) violation of procedural and substantive due process; (3) breach of contract and/or promissory estoppel; (4) invasion of privacy; (5) defamation; (6) intentional infliction of emotional distress; (7) sеx/gender discrimination; (8) tortious interference with business or professional relations; and (9) deprivation of civil rights under
{¶12} On April 6, 2009, upon finding that the trial court‘s 2008 decision was not a final appealable order because it did not dispose of all sovereign immunity issues, we dismissed the appeal. We also dismissed the cross-appeal due to pending claims and the lack of a
{¶13} Curry and Tindle subsequently dismissed council member Dave Wallace, Lieutenant Brett Pickett, the Clinton County Sheriff‘s Department, and the Clinton County Commissioners as defendants, and dismissed their tortious interference claim.
{¶14} On July 17, 2009, the trial court issued its decision granting in part and denying in part the motion for summary judgment. Relevant to this appeal, the trial court granted summary judgment to White and the defendants with regard to the unlawful/wrongful termination claim. The trial court also found that Curry was not deprived of her civil rights by White and the defendants, and that even if she was, White and the defendants were entitled to qualified immunity. With regard to the
{¶15} White appeals, raising one assignment of error2:
{¶16} “THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT TO WHITE FOR DEFAMATION, INVASION OF PRIVACY AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.”
{¶17} On appeal, a trial court‘s decision granting summary judgment is reviewed de novo.3 Burgess v. Tackas (1998), 125 Ohio App.3d 294, 296. Summary judgment is proper when there is no genuine issue of material fact remaining for trial, the moving party is entitled to judgment as a matter of law, and reasonable minds can only come to a conclusion adverse to the nonmoving party, construing the evidence most strongly in that party‘s favor. See
{¶18} The trial court summarily denied White‘s summary judgment motion “on [ ] Curry‘s claims of invasion of privacy, defamation, and intentional infliction of emotional distress, based upon the
{¶19} On appeal, White argues the trial court erred in denying his summary judgment motion with regard to Curry‘s intentional tort claims. Specifically, White argues (1) he is entitled to immunity under
{¶21} Before we address White‘s immunity arguments, we must determine the appropriate
{¶22} Upon reviewing the complaint filed by Curry, we find that Curry asserted her intentional tort claims against White in his individual capacity as an employee of a political subdivision, rather than in his official capacity as an officeholder of the political subdivision. To be sure, the complaint states White “is being sued in his official capacity as Mayor of the Village of Blanchester for all acts complained of[.]” However, the complaint states White is also being sued “individually for acts outside the scope of [his] position or employment with the Village of Blanchester.” More importantly, the allegations in the complaint with regard to the intentional tort claims pertain to actions taken and statements made by White personally, and not to the policies and practices of the mayor‘s office. See Lambert at ¶15-16. It follows we must determine whether White is immune from liability under
IMMUNITY
{¶23} We first address the two comments made by White as an elected official, to wit, the “titties” comment made during an exeсutive session of the council when White was a council member, and the affair comment made in 2004 when White was mayor of the Village.
A. Whether the “titties” comment was protected by absolute immunity
{¶25} Absolute immunity (also called absolute privilege) provides complete protection from liability for defamation. See Costanzo v. Gaul (1980), 62 Ohio St.2d 106; Floyd v. Thomas (June 26, 2000), Preble App. No. CA99-07-016. However, the application of an absolute immunity is found only in very limited areas of activity and has generally been limited to legislative and judicial proceedings and other acts of state. Costanzo at 109. Statements made outside council meetings do not fall within the protection of absolute immunity. Floyd at 13.
{¶26} The Ohio Supreme Court determined that the rule of absolutе immunity “may reasonably be applied to utterances made during the course of official proceedings by members of local governing bodies, at least where the statements relate to a matter under consideration, discussion or debate.” Id. at 110. However, absolute immunity “should not be extended to members of city council, where there is no pending legislation relating to the subject matter of the alleged defamation and where the publication is beyond the legislative forum.” Id.
{¶27} We find that White‘s “titties” comment is not protected by absolute immunity because it was not made in conjunction with legislative action. “[L]ocal legislators are entitled to absolute immunity as long as they are acting in a legislative capacity. * * * the scope of immunity depends on the nature of the activity involved.
{¶28} The record before us indicates White‘s comment was made while council, of which White was a member, was discussing Curry‘s pay raise. The conduct dealt with personnel matters regarding a single and specific individual rather than with general policy, and was therefore administrative and not legislative. See Poppy v. Willoughby Hills City Council, Lake App. No. 2004-L-015, 2005-Ohio-2071 (city council not entitled to absolute immunity from city employee‘s action for gender discrimination as council‘s failure to pass an ordinance increasing employee‘s pay rate was administrative rather than legislative action). It follows the trial court did not err by finding White was not protected by absolute immunity. At this juncture, we note that absolute immunity also does not apply to White‘s affair comment as that comment was made beyond the scoрe of council meetings. See Floyd, Preble App. No. CA99-07-016, at 13.
B. Whether White is immune from liability under R.C. 2744.03(A)(6) regarding the “titties” comment and the affair comment
{¶29} Ohio law provides immunity for employees of political subdivisions under
{¶30}
{¶31} Applying the foregoing definitions, we find that White‘s “titties” comment was made within the scope of his employment; the affair comment, however, was not. As noted earlier, White made the “titties” comment as a council member during
{¶32} By contrast, White‘s affair comment was not made within the scope of his employment. The record indicates White made the comment in 2004 to Tim Rector when White was mayor of the Village. Specifically, based upon Rector‘s deposition, White made the comment to Rector, who was then acting as officer in charge, either in or after July 2004. At the time, Curry was no longer working for the Village. Further, Rector‘s deposition states that when White made the comment to him, they “did not discuss any legitimate performance issues regarding [Curry] * * * regarding [her] employment with the Village.” Based on the foregoing, we find that White‘s affair comment was manifestly outside the scope of his employment. Therefore, White is not immune under
{¶33} Although we found the “titties” comment was made within the scope of White‘s employment, we need to determine whether the exception to immunity found in
{¶34} “Malice” refers to “the willful and intentional design to do injury, or the intention or desire to harm another, usually seriously, through conduct which is unlawful or unjustified.” Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App.3d 448, 453-454. “Bad faith * * * embraces more than bad judgment or
{¶35} “Wanton misconduct” is the failure to exercise any care whatsoever. McDonald, 144 Ohio App.3d at 309. “[M]ere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.” Roszman v. Sammett (1971), 26 Ohio St.2d 94, 97. Likewise, “in the context of
{¶36} Showing wanton misconduct or recklessness is subject to a high standard when attempting to abolish employee immunity under
{¶37} Applying the foregoing definitions and in light of the high standard enunciated by the supreme court, we cannot say that the “titties” comment, while derogatory and crude, constitutes malice, bad faith, or wanton or reckless misconduct
{¶38} In light of all of the foregoing, we find the trial court properly held White was not immune under
INTENTIONAL TORTS AND SUMMARY JUDGMENT
{¶39} We next address whether the trial court properly denied summary judgment to White on Curry‘s claims of invasion of privacy, defamation, and intentional infliction of emotional distress with regard to the “tits and no brain” comment and the affair comment.
A. Defamation
{¶40} Defamation is the publication of a false statement of fact “made with somе degree of fault, reflecting injuriously on a person‘s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.” Woods v. Capital Univ., Franklin App. No. 09AP-166, 2009-Ohio-5672, ¶27, quoting Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, ¶9.
{¶41} To survive a motion for summary judgment in a defamation action, the plaintiff must make a sufficient showing of the existence of every element essential to his or her case. Daubenmire v. Sommers, 156 Ohio App.3d 322, 2004-Ohio-914, ¶79. Generally, the essential elements of a defamation action are that the defendant made a false statement, the false statement was defamatory, the false defamatory
{¶42} There are four classifications into which a plaintiff alleging defamation may fall: (1) a private person; (2) a public official; (3) a public figure; and (4) a limited-purpose public figure. Id. at ¶87. Classification determines the plaintiff‘s burden of proof. Id. The determination оf whether a party is a private or public figure is a matter of law. Id. at ¶88.
{¶43} In the case at bar, the trial court summarily denied summary judgment to White with regard to Curry‘s defamation claim without determining Curry‘s classification. There is no evidence Curry was anything other than a private-figure plaintiff. Curry was clearly not a public official. Nor was she a public figure, or someone “who has achieved ‘general fame or notoriety in the community’ and ‘pervasive involvement in the affairs of society.‘” Woods, 2009-Ohio-5672 at ¶36, quoting Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 352, 94 S.Ct. 2997. We also find Curry was not a limited-purpose public figure.
{¶44} A limited-purpose public figure is a person who becomes a public figure for a specific range of issues by being drawn into or voluntarily injecting himself into a specific public controversy, Daubenmire, 2004-Ohio-914 at ¶89, and/or by “thrust[ing] themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” E. Canton Edn. Assn. v. McIntosh, 85 Ohio St.3d 465, 482, 1999-Ohio-282. A plaintiff does not become a limited-purpose public figure because the allegedly defamatory statеments create a controversy; the controversy must have existed prior to the statements. Fuchs v. Scripps Howard Broadcasting
{¶45} When the plaintiff is a private figure, the required degree of fault is ordinary negligence. Lansdowne v. Beacon Journal Pub. Co. (1987), 32 Ohio St.3d 176, 180; Great Lakes Capital Partners Ltd. v. Plain Dealer Publishing Co., Cuyahoga App. No. 91215, 2008-Ohio-6495, ¶18. Specifically, the plaintiff must prove by clear and convincing evidence that the defendant “failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication.” Lansdowne at 180.
{¶46} White argues the trial court erred in denying summary judgment with regard to Curry‘s defamation claim. White asserts that the “tits and no brain” comment is a statement of opinion and is therefore not actionable. White makes the same assertion regarding the “titties” comment; however, White has immunity from liability under
{¶47} To be defamatory, a statement must be a statement of fact and not of opinion. Fuchs, 2006-Ohio-5349 at ¶39. Whether the alleged defamatory statement is fact or opinion is a question of law. Id. To determine whether a statement is fact or opinion, a court applies a totality-of-the-circumstances test, considering the
{¶48} We find the “tits and no brain” comment was protected opinion. The statement was made by White as a private citizen while in a local bar. A reasonable listener would interpret the words used by White to be language conveying an opinion or mere hyperbole rather than factual informatiоn. Further, we cannot say the comment was verifiable. “Does the author imply that he has firsthand knowledge that substantiates the opinions he asserts?” Worldnet Software Co. v. Gannett Satellite Information Network, Inc. (1997), 122 Ohio App.3d 499, 505. White‘s statement does not imply “first-hand knowledge.” Based upon the totality of the circumstances, White‘s “tits and no brain” comment was a statement of opinion and is therefore protected speech. See Jorg v. Cincinnati Black United Front, 153 Ohio App.3d 258, 2003-Ohio-3668.
{¶49} With regard to the affair comment, we find that Curry has failed to show there is a genuine issue of material fact. As stated earlier, to survive a motion for summary judgment in a defamation action, a plaintiff must make a sufficient showing of the existence of every element essential to his or her case. Daubenmire, 2004-Ohio-914 at ¶79. One of the elements of a defamation action is that the plaintiff was injured by the false defamatory statement. The record indicates White made the statement to Tim Rector either in or after July 2004, thus several months after Curry‘s employment with the Village was terminаted. Curry failed to provide any evidence that she was injured by the affair comment or how she was thereby injured.
{¶50} Finally, Curry asserts White defamed her when he falsely accused her
{¶51} In light of all of the foregoing, we find that the trial cоurt improperly denied summary judgment to White with regard to Curry‘s defamation claim.
B. Intentional infliction of emotional distress
{¶52} To establish a claim for intentional infliction of emotional distress, a plaintiff must show that (1) the actor either intended to cause emotional distress or knew or should have known the actions taken would result in serious emotional distress to the plaintiff; (2) the actor‘s conduct was so extreme and outrageous as to go “beyond all possible bounds of decency” and was such that it can be considered as “utterly intolerable in a civilized community;” (3) the actor‘s actions were the proximate cause of plaintiff‘s psychic injury; and (4) the mental anguish suffered by the plaintiff is so serious and of a nature that “no reasonable man could be expected to endure it.” Garrison v. Bobbitt (1999), 134 Ohio App.3d 373, 378-379. “[M]ajor
{¶53} “Liability has been found only where the conduct has been so outrageous in charаcter, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. * * * the liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. * * * [P]laintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone‘s feelings are hurt.” Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374-375.
{¶54} White argues the trial court erred in denying summary judgment with regard to Curry‘s intentional infliction of emotional distress claim. White asserts that the “tits and no brain” comment, while arguably in poor state, is neither outrageous, extreme, or utterly intolerable and is therefore not actionable. White makes the same assertion regarding the “titties” comment; however, White is immune from liability under
{¶56} The trial court, therefore, erred in denying summary judgment to White with regard to Curry‘s intentional infliction of emotional distress claim.
C. Invasion of privacy
{¶57} Until 2007, an actionable invasion of privacy was “the unwarranted appropriation or exploitation of one‘s personality, the publicizing of one‘s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one‘s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” Housh v. Peth (1956), 165 Ohio St. 35, paragraph two of the syllabus. In 2007, the Ohio Supreme Court recognized a fourth theory, the “false light” invasion of privacy theory. Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451, syllabus.
{¶58} In the case at bar, Curry‘s invasion of privacy claim does nоt fit under the first or third theory: there was no appropriation of Curry‘s name by White for his advantage; “[t]he ‘intrusion’ tort” is not dependent upon publicity of private matters but is akin to trespass in that it involves intrusion or prying into the plaintiff‘s private affairs. Examples would be wiretapping [and] watching or photographing a person through windows of his residence[.]” Killilea v. Sears, Roebuck & Co. (1985), 27 Ohio App.3d 163, 166. Curry‘s claim, then, would fit, if at all, under either the second theory (also called the “publicity” tort) or the false light theory.
{¶59} To establish a claim of invasion of privacy under the publicity theory, a plaintiff must prove that (1) there was publicity; the disclosure must be of a public nature, not private; (2) the facts disclosed concerned an individual‘s private life, not his public life; (3) the matter publicized would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) the publication was made intentionally, not negligently; and (5) the matter publicized was not of legitimate concern to the public. Killilea at 166-167; Oakley v. Nolan, Athens App. No. 06CA22, 2007-Ohio-2794. “‘Publicity’ means cоmmunicating the matter to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge as opposed to ‘publication’ as that term of art is used in connection with liability for defamation as meaning any communication by the defendant to a third person.” Killilea at 166.
{¶60} Under a false light invasion of privacy theory, “[o]ne who gives publicity to a matter concerning another that places the other before the public in a false light
{¶61} White argues the trial court erred by denying summary judgment with regard to Curry‘s invasion of privacy claim. Specifically, White argues that Curry cannot state a claim for invasion of privacy as the comment about Curry‘s alleged affair with the police chief was not publicized to the public at large.5 We agree.
{¶62} There is no evidence that White publicized Curry‘s alleged affair to the public at large. According to Rector‘s deposition, White told him one day that he thought Curry was having or had an affair with the police chief. However, there is no evidence White made the comment to anyone other than Rector, or that the comment was made to Rector in the presence of other persons. We note there is evidence in the record that rumors were spread that Curry was allegedly having an affair with the police chief (as well as with other officers and the previous mayor of the Village).
{¶63} The trial court, therefore, erred in denying summary judgment to White with regard to Curry‘s invasion of privacy claim under either the publicity theory or the false light theory. See Henson v. Henson, Summit App. No. 22772, 2005-Ohio-6321.
{¶64} We therefore find the trial court erred in denying summary judgment to White with regard to Curry‘s intentional tort claims. White‘s assignment of error is well-taken and sustained.
{¶65} Curry cross-appealed, raising two cross-assignments of error.
{¶66} Cross-assignment of Error No. 1:
{¶67} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING DEFENDANTS SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS FOR WRONGFUL TERMINATION AND VIOLATIONS OF DUE PROCESS RIGHTS.”
{¶68} Cross-assignment of Error No. 2:
{¶69} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING DEFENDANTS SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY.”
{¶70} In both cross-assignments of error, Curry argues the trial court erred by granting summary judgment to White and the defendants with regard to her unlawful/wrongful termination claims. The trial court granted summary judgment on the ground Curry was an employee at will. The trial court further found: “[Curry and
{¶71} On appeal, Curry first argues the trial court erred by finding she was an employee at will. Curry asserts she had a property interest in her continued employment with the Village based on the personnel policies in the Village employee handbook. Thus, White and the defendants were required to apply the handbook provisions governing village employee layoffs before terminating her employment. Curry further asserts that in light of her property interest, the trial court erred by granting summary judgment to White and the defendants with regard to her civil rights deprivation claim. Curry also argues she was wrongfully terminated in violation of public policy.
{¶72} The general rule in Ohio is that an employment relationship, absent an agreement to the contrary, is regarded as an employment at will which can be terminated at any time by the employer (or the employee) for any reason not contrary to law. See Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, paragraph one of the syllabus. “Generally, where the employee furnishes no consideration other than his or her services incident to the employment, the relationship amounts to an indefinite general hiring terminable at the will of either party unless the terms of the contract or other circumstances clearly manifest the parties’ intent to bind each other.” Sagonowsky v. The Andersons, Inc., Lucas App. No. L-03-1168, 2005-Ohio-326, ¶14, quoting Pyle v. Ledex, Inc. (1988), 49 Ohio App.3d 139, 141.
{¶73} The provisions of an employee handbook will alter the terms of an at will employment relationship only if the employer and the employee have agreed to create a contract from the writing. McIntosh v. Roadway Express, Inc. (1994), 94 Ohio App.3d 195, 210. In the absence of mutual assent, a handbook is simply a unilateral statement of rules and policies that create no obligations or rights. Id.
{¶74} Article I, Section 8 of the handbook provides that “Infоrmation included in these personnel policies and procedures, classification plan, compensation plan, and performance evaluation system are not to be considered a contract and may be changed with notice by the Mayor with approval of Council.” The trial court held that the foregoing “language clearly establishes that [Curry and Tindle] were ‘at will’ employees of the Village rather than contractual employees or classified employees.” We agree with the trial court. The employment relationship between Curry and the Village was an at will employment.
{¶75} Curry nevertheless asserts that pursuant to the Ohio Supreme Court decision in State ex rel. Trimble v. State Board of Cosmetology (1977), 50 Ohio St.2d 283, she had a property interest in her continued employment with the Village and was therefore entitled to the protection of the handbook.
{¶76} “The requirements of procedural due process * * * apply only to the deprivation of interests encompassed by the
{¶77} Curry asserts that the personnel policies of the handbook, аnd specifically Article VII dealing with layoffs and recalls, are “the type of ‘rules or mutually explicit understandings’ envisioned by the supreme court in [Trimble].” We disagree.
{¶78} Curry has not cited, and we have not found, any cases supporting her argument that personnel policies in an employee handbook, even when enacted by a village council, are akin to the “rules or mutually explicit understandings” envisioned by the supreme court in Trimble. We find Curry has not produced such “rules or mutually explicit understandings.” Article VII of the handbook does not support her claim she is entitled to continued employment. Article VII sets out the framework for layoffs and recalls but does not constitute a guarantee of continued employment or recall. It does not evidence an understanding she was guaranteed continued employment. Rather, Article VII and the rest of the handbook simply constitute a unilateral statement of rules and policies that create no obligations or rights. Thus, Curry does not have a рroperty interest in continued employment protected by the
{¶79} It follows that the trial court did not err by granting summary judgment to White and the defendants with regard to Curry‘s civil rights deprivation claim.
{¶80} The trial court therefore properly granted summary judgment to White and the defendants with regard to Curry‘s civil rights deprivation claim6. Curry‘s first cross-assignment of error is overruled.
{¶81} Curry also argues she was wrongfully terminated in violation of public policy. As stated earlier, employees at will, like Curry, may be terminatеd at any time for any reason or no reason at all as long as the termination is not contrary to law. Mers, 19 Ohio St.3d 100, paragraph one of the syllabus. In 1990, the Ohio Supreme
{¶82} To prevail on a claim for wrongful discharge, a plaintiff must prove that (1) a clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element); (2) dismissing employees under circumstances like those involved in the plaintiff‘s dismissal would jeopardize the public policy (the jeopardy element); (3) the plaintiff‘s dismissal was motivated by conduct related to the public policy (the causation element); and (4) the employer lacked overriding legitimate business justification for the dismissal (the overriding justification element). Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 151, 1997-Ohio-219.
{¶83} Courts determine the clarity and jeopardy elements as a matter of law while the causation and overriding justification elements are questions of fact determined by the trier of fact. Id.; Popp at ¶9. “[A]n exception to the traditional doctrine of employment-at-will should be recognized only where the public policy alleged to have been violated is of equally serious import as the violation of a statute.” Graley at 384.
{¶85} In her complaint, Curry alleged she was wrongfully discharged in violation of a clear public policy and set forth several federal and Ohio statutes as a source of such public policy. However, in her response to the summary judgment motion filed by White and the defendants, Curry simply asserted that “assuming arguendo, that the forgoing [sic] is not enough [that is, the fact she was entitled to the protection of the handbook because she had a property interest in her employment], there is the public policy exception to the employment at will doctrine.” Curry did not identify which public policy was allegedly violated by her discharge. Nor did she cite or present the trial court with any legal authority in support of her argument that her discharge violated public policy. Rather, Curry merely asserted that her discharge violated public policy. Likewise, on appeal, Curry fails to identify the clear public policy allegedly violated by her discharge. She thus failed to meet her burden. See Poland; Schwenke v. Wayne-Dalton Corp., Holmes App. No. 07-CA-003, 2008-Ohio-1412.
{¶86} Second, notwithstanding Curry‘s assertion, the clarity element is not “satisfied by the specific policies regarding layoff/recall enacted by [council]” in the handbook. Curry asserts that because the handbook and its personnel policies were
{¶87} Curry has not cited, and we have not found, any cases supporting her argument that an employee handbook enacted by a city or village council satisfies the clarity element. In Poland, the Seventh Appellate District addressed whether an employee handbook (in that case, the township‘s personnel policy and procedure manual) was a proper source to determine a clear public policy. In finding it was not, the appellate court held that:
{¶88} “Public policy, in substance, is the community‘s common sense and common conscience, extended and applied throughоut the state to matters of public morals, health, safety, and welfare. * * * while public policy is not expressed solely in places such as constitutions, administrative rules and regulations, statutes and the common law, an employee handbook is not a proper source to determine a clear public policy. Regardless of whether the employer is a government entity, corporation, or sole proprietor, the employee handbook issued from the employer is not a statement of public policy. This is so because an employee handbook has no statewide application and is simply a statement of rules and policies that creates no obligations or rights. If we were to hold that the public policy of this state may be determined by looking to employee handbooks, there would be thousands of ‘public policies’ with conflicting provisions and limited only by the ingenuity of man. Therefore, it is with sound reasoning that it has been held that public policy is to be determined by the [state] legislature, not the court or an employer.” Poland, 2003-Ohio-6726, ¶21-22. (Internal citations omitted.)
{¶90} Judgment affirmed in part, reversed in part, and remanded for further proceedings in compliance with the law and consistent with this opinion.
BRESSLER and RINGLAND, JJ., concur.