[Cite as Gradisher v. Barberton Citizens Hosp., 2011-Ohio-6243.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
FRANCIS GRADISHER C.A. No. 25809
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE BARBERTON CITIZENS HOSPITAL COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2007 10 7117
DECISION AND JOURNAL ENTRY
Dated: December 7, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Barberton Citizens Hospital fired Francis Gradisher after he violated several
disciplinary rules. Mr. Gradisher sued the hospital for breach of implied contract, intentional
infliction of emotional distress, promissory estoppel, and age discrimination. The trial court
granted summary judgment to the hospital. Mr. Gradisher has appealed, assigning as error that
the trial court incorrectly granted summary judgment to the hospital. We affirm because the trial
court correctly granted summary judgment to the hospital on Mr. Gradisher’s claims.
AGE DISCRIMINATION
{¶2} Mr. Gradisher has argued that the trial court incorrectly granted summary
judgment to the hospital on his age discrimination claim. Under Section 4112.02(A) of the Ohio 2
Revised Code, it is illegal “[f]or any employer, because of the . . . age . . . of any person, to
discharge [the person] without just cause[.]” Under Section 4112.14(A), “[n]o employer shall . .
. discharge without just cause any employee aged forty or older who is physically able to
perform the duties and otherwise meets the established requirements of the job and laws
pertaining to the relationship between employer and employee.”
{¶3} “In the absence of direct evidence of discrimination, a plaintiff alleging age
discrimination must establish a prima facie case using indirect evidence, by demonstrating (1)
that he is a member of a protected class; (2) that he was qualified for the position in question; (3)
that he suffered an adverse employment action despite his qualifications; and (4) that he ‘was
replaced by, or the discharge permitted the retention of, a person of substantially younger age.’”
Craddock v. Flood Co., 9th Dist. No. 23882, 2008-Ohio-112, at ¶12 (quoting Coryell v. Bank
One Trust Co. N.A., 101 Ohio St. 3d 175, 2004-Ohio-723, at paragraph one of the syllabus). “If
the plaintiff successfully establishes a prima facie case of age discrimination, the employer must
articulate a legitimate, nondiscriminatory justification for the employment action. The plaintiff
may then prove by a preponderance of the evidence that the justification articulated by the
employer is a pretext for discrimination. At all times, however, ‘the ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the plaintiff’
remains with the plaintiff.” Id. at ¶13 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981) (citations omitted)).
{¶4} The trial court granted summary judgment to the hospital because it determined
that there was no direct evidence of age discrimination and Mr. Gradisher failed to establish a
prima facie case of age discrimination using indirect evidence. Regarding Mr. Gradisher’s
failure to establish a prima facie case, it noted that he had not submitted any evidence that the 3
hospital replaced him with a person of a substantially younger age or that his discharge allowed
the hospital to retain a person of a substantially younger age.
{¶5} In his brief, Mr. Gradisher has argued that the hospital replaced him with or
retained a person of a substantially younger age, but he has not directed this Court to any
evidence in the record that supports his argument. The only evidence presented by either party
was Mr. Gradisher’s deposition. We have reviewed that deposition and have been unable to
locate any testimony regarding whether Mr. Gradisher was replaced by a substantially younger
person or whether the hospital was able to retain a substantially younger person because of his
discharge. We, therefore, conclude that the trial court correctly determined that Mr. Gradisher
failed to establish a prima facie case of age discrimination.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
{¶6} Mr. Gradisher has next argued that the trial court incorrectly granted summary
judgment to the hospital on his intentional infliction of emotional distress claim. “In a case for
intentional infliction of emotional distress, a plaintiff must prove (1) that the defendant intended
to cause the plaintiff serious emotional distress, (2) that the defendant’s conduct was extreme and
outrageous, and (3) that the defendant’s conduct was the proximate cause of plaintiff’s serious
emotional distress.” Phung v. Waste Mgmt., Inc., 71 Ohio St. 3d 408, 410 (1994). “Termination
of employment, without more, does not constitute the outrageous conduct required to establish a
claim of intentional infliction of emotional distress, even when the employer knew that the
decision was likely to upset the employee.” Craddock v. Flood Co., 9th Dist. No. 23882, 2008–
Ohio–112, at ¶20.
{¶7} According to Mr. Gradisher, the hospital’s decision to discharge him without
warning constituted severe and outrageous conduct. He has relied exclusively on that argument 4
even though we have repeatedly rejected it in previous cases. See Cozzuli v. Sandridge Food
Corp., 9th Dist. No. 10CA0109-M, 2011-Ohio-4878, at ¶17; Copley v. Westfield Group, 9th
Dist. No. 10CA0054-M, 2011-Ohio-4708, at ¶16; Shetterly v. WHR Health Sys., 9th Dist. No.
08CA0026-M, 2009-Ohio-673, at ¶17-18; Craddock v. Flood Co., 9th Dist. No. 23882, 2008–
Ohio–112, at ¶20. Moreover, despite our clear rejection of Mr. Gradisher’s theory of liability,
his brief proposes no new authority that would merit our reconsideration of this Court’s existing
law on this subject. We therefore take this opportunity to emphasize again that “termination
alone does not establish intentional infliction of emotional distress.” Cozzuli, 2011-Ohio-4878,
at ¶18. The trial court correctly granted summary judgment to the hospital on Mr. Gradisher’s
intentional infliction of emotional distress claim.
IMPLIED CONTRACT AND PROMISSORY ESTOPPEL
{¶8} Mr. Gradisher has next argued that the trial court incorrectly granted the hospital
summary judgment on his breach of implied contract and promissory estoppel claims. The
doctrines of implied contract and promissory estoppel are two exceptions to the general rule that
“employment situations of no fixed duration are presumed to be at-will” and terminable at any
time for any lawful reason. Shetterly v. WHR Health Sys., 9th Dist. No. 08CA0026–M, 2009–
Ohio–673, at ¶6–12. An employee seeking to prove the existence of an implied contract “bears
the heavy burden of demonstrating (1) assurances on the part of the employer that satisfactory
work performance was connected to job security; (2) a subjective belief on the part of the
employee that he could expect continued employment; and (3) indications that the employer
shared the expectation of continued employment.” Craddock v. Flood Co., 9th Dist. No. 23882,
2008–Ohio–112, at ¶7. Regarding promissory estoppel, we have held that “[t]he test . . . is
whether the employer should have reasonably expected its representation to be relied upon by its 5
employee and, if so, whether the expected action or forbearance actually resulted and was
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[Cite as Gradisher v. Barberton Citizens Hosp., 2011-Ohio-6243.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
FRANCIS GRADISHER C.A. No. 25809
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE BARBERTON CITIZENS HOSPITAL COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2007 10 7117
DECISION AND JOURNAL ENTRY
Dated: December 7, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Barberton Citizens Hospital fired Francis Gradisher after he violated several
disciplinary rules. Mr. Gradisher sued the hospital for breach of implied contract, intentional
infliction of emotional distress, promissory estoppel, and age discrimination. The trial court
granted summary judgment to the hospital. Mr. Gradisher has appealed, assigning as error that
the trial court incorrectly granted summary judgment to the hospital. We affirm because the trial
court correctly granted summary judgment to the hospital on Mr. Gradisher’s claims.
AGE DISCRIMINATION
{¶2} Mr. Gradisher has argued that the trial court incorrectly granted summary
judgment to the hospital on his age discrimination claim. Under Section 4112.02(A) of the Ohio 2
Revised Code, it is illegal “[f]or any employer, because of the . . . age . . . of any person, to
discharge [the person] without just cause[.]” Under Section 4112.14(A), “[n]o employer shall . .
. discharge without just cause any employee aged forty or older who is physically able to
perform the duties and otherwise meets the established requirements of the job and laws
pertaining to the relationship between employer and employee.”
{¶3} “In the absence of direct evidence of discrimination, a plaintiff alleging age
discrimination must establish a prima facie case using indirect evidence, by demonstrating (1)
that he is a member of a protected class; (2) that he was qualified for the position in question; (3)
that he suffered an adverse employment action despite his qualifications; and (4) that he ‘was
replaced by, or the discharge permitted the retention of, a person of substantially younger age.’”
Craddock v. Flood Co., 9th Dist. No. 23882, 2008-Ohio-112, at ¶12 (quoting Coryell v. Bank
One Trust Co. N.A., 101 Ohio St. 3d 175, 2004-Ohio-723, at paragraph one of the syllabus). “If
the plaintiff successfully establishes a prima facie case of age discrimination, the employer must
articulate a legitimate, nondiscriminatory justification for the employment action. The plaintiff
may then prove by a preponderance of the evidence that the justification articulated by the
employer is a pretext for discrimination. At all times, however, ‘the ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the plaintiff’
remains with the plaintiff.” Id. at ¶13 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981) (citations omitted)).
{¶4} The trial court granted summary judgment to the hospital because it determined
that there was no direct evidence of age discrimination and Mr. Gradisher failed to establish a
prima facie case of age discrimination using indirect evidence. Regarding Mr. Gradisher’s
failure to establish a prima facie case, it noted that he had not submitted any evidence that the 3
hospital replaced him with a person of a substantially younger age or that his discharge allowed
the hospital to retain a person of a substantially younger age.
{¶5} In his brief, Mr. Gradisher has argued that the hospital replaced him with or
retained a person of a substantially younger age, but he has not directed this Court to any
evidence in the record that supports his argument. The only evidence presented by either party
was Mr. Gradisher’s deposition. We have reviewed that deposition and have been unable to
locate any testimony regarding whether Mr. Gradisher was replaced by a substantially younger
person or whether the hospital was able to retain a substantially younger person because of his
discharge. We, therefore, conclude that the trial court correctly determined that Mr. Gradisher
failed to establish a prima facie case of age discrimination.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
{¶6} Mr. Gradisher has next argued that the trial court incorrectly granted summary
judgment to the hospital on his intentional infliction of emotional distress claim. “In a case for
intentional infliction of emotional distress, a plaintiff must prove (1) that the defendant intended
to cause the plaintiff serious emotional distress, (2) that the defendant’s conduct was extreme and
outrageous, and (3) that the defendant’s conduct was the proximate cause of plaintiff’s serious
emotional distress.” Phung v. Waste Mgmt., Inc., 71 Ohio St. 3d 408, 410 (1994). “Termination
of employment, without more, does not constitute the outrageous conduct required to establish a
claim of intentional infliction of emotional distress, even when the employer knew that the
decision was likely to upset the employee.” Craddock v. Flood Co., 9th Dist. No. 23882, 2008–
Ohio–112, at ¶20.
{¶7} According to Mr. Gradisher, the hospital’s decision to discharge him without
warning constituted severe and outrageous conduct. He has relied exclusively on that argument 4
even though we have repeatedly rejected it in previous cases. See Cozzuli v. Sandridge Food
Corp., 9th Dist. No. 10CA0109-M, 2011-Ohio-4878, at ¶17; Copley v. Westfield Group, 9th
Dist. No. 10CA0054-M, 2011-Ohio-4708, at ¶16; Shetterly v. WHR Health Sys., 9th Dist. No.
08CA0026-M, 2009-Ohio-673, at ¶17-18; Craddock v. Flood Co., 9th Dist. No. 23882, 2008–
Ohio–112, at ¶20. Moreover, despite our clear rejection of Mr. Gradisher’s theory of liability,
his brief proposes no new authority that would merit our reconsideration of this Court’s existing
law on this subject. We therefore take this opportunity to emphasize again that “termination
alone does not establish intentional infliction of emotional distress.” Cozzuli, 2011-Ohio-4878,
at ¶18. The trial court correctly granted summary judgment to the hospital on Mr. Gradisher’s
intentional infliction of emotional distress claim.
IMPLIED CONTRACT AND PROMISSORY ESTOPPEL
{¶8} Mr. Gradisher has next argued that the trial court incorrectly granted the hospital
summary judgment on his breach of implied contract and promissory estoppel claims. The
doctrines of implied contract and promissory estoppel are two exceptions to the general rule that
“employment situations of no fixed duration are presumed to be at-will” and terminable at any
time for any lawful reason. Shetterly v. WHR Health Sys., 9th Dist. No. 08CA0026–M, 2009–
Ohio–673, at ¶6–12. An employee seeking to prove the existence of an implied contract “bears
the heavy burden of demonstrating (1) assurances on the part of the employer that satisfactory
work performance was connected to job security; (2) a subjective belief on the part of the
employee that he could expect continued employment; and (3) indications that the employer
shared the expectation of continued employment.” Craddock v. Flood Co., 9th Dist. No. 23882,
2008–Ohio–112, at ¶7. Regarding promissory estoppel, we have held that “[t]he test . . . is
whether the employer should have reasonably expected its representation to be relied upon by its 5
employee and, if so, whether the expected action or forbearance actually resulted and was
detrimental to the employee.” Shetterly, 2009-Ohio-673, at ¶6 (quoting Kelly v. Georgia-Pacific
Corp., 46 Ohio St. 3d 134, 139 (1989)). “This exception requires ‘specific representations’
rather than [g]eneral expressions of optimism or good will. Standing alone, praise with respect
to job performance and discussion of future career development will not modify the
employment-at-will relationship.” Id. (quoting Craddock, 2008-Ohio-112, at ¶8) (citations
omitted)). “Whether a plaintiff proceeds under a theory of implied contract or promissory
estoppel, . . . specific representations leading to an expectation of continued employment are
essential.” Craddock, 2008-Ohio-112, at ¶8; see Wing v. Anchor Media Ltd. of Texas, 59 Ohio
St. 3d 108, paragraph two of the syllabus (1991).
{¶9} Mr. Gradisher has argued that he was a dedicated employee, that he performed his
duties with skill and proficiency, and that he was led to believe that his employment was long-
term. He has also argued that he received positive performance reviews and pay increases from
the hospital.
{¶10} At his deposition, Mr. Gradisher admitted receiving, reading, and signing an
employee handbook acknowledgement card that provided that “all employees are employed for
an indefinite term and employment may be terminated without cause at any time, at the will of
the . . . facility. This status can only be altered by a written contract of employment which is
specific as to all material terms and is signed by both the employee and the Chief Executive
Officer of [the hospital].” Mr. Gradisher did not submit a written contract of employment signed
by himself and the hospital’s chief executive officer. He also failed to identify any specific
representations by his supervisors that suggested that his employment was not at-will. We,
therefore, conclude that the trial court correctly granted summary judgment to the hospital on 6
Mr. Gradisher’s breach of implied contract and promissory estoppel claims. Mr. Gradisher’s
assignment of error is overruled.
CONCLUSION
{¶11} The trial court correctly granted summary judgment to the hospital on Mr.
Gradisher’s age discrimination, intentional infliction of emotional distress, breach of implied
contract, and promissory estoppel claims. The judgment of the Summit County Common Pleas
Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON FOR THE COURT 7
BELFANCE, P.J. WHITMORE, J. CONCUR APPEARANCES:
ERIC D. HALL, Attorney at Law, for Appellant.
FRANK G. MAZGAJ and JEFFREY E. SCHOBERT, Attorneys at Law, for Appellee.