Squire v. Carlisle Twp. , 2019 Ohio 3984 ( 2019 )

[Cite as Squire v. Carlisle Twp., 2019-Ohio-3984.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
MARTIN SQUIRE, et al. C.A. No. 18CA011435
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CARLISLE TOWNSHIP COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 17CV193439
DECISION AND JOURNAL ENTRY
Dated: September 30, 2019
SCHAFER, Judge.
{¶1} Plaintiff-Appellants, Martin Squire and Arlene Squire appeal the judgment of the
Lorain County Court of Common Pleas granting summary judgment to Defendant-Appellee,
Carlisle Township.
I.
{¶2} Mr. Squire was a longtime employee of Carlisle Township’s road department.
Mr. Squire began his employment as a road worker class I. He was subsequently promoted to
road worker II and then road worker III. In early 2016, upon recommendation of the retiring
road superintendent, the Carlisle Township trustees promoted Mr. Squire to acting road
superintendent. After working as the acting road superintendent for just over a year, Mr. Squire
requested that the trustees return him to his prior road worker class III position. At that time
there were no open positions in the road department. Consequently, the trustees voted about a
month later to terminate Mr. Squire’s employment.
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{¶3} The Squires subsequently filed a complaint against Carlisle Township asserting
causes of action for age discrimination, promissory estoppel/breach of implied contract,
retaliation, wrongful termination in violation of public policy, and loss of consortium. Carlisle
Township answered the complaint and that matter proceeded through the pretrial process
{¶4} Carlisle Township ultimately filed a motion for summary judgment alleging it
was entitled to judgment on all of the Squires’ claims. The Squires responded arguing that there
were genuine issues of material fact remaining as to all of their claims. The trial court thereafter
granted Carlisle Township’s motion for summary judgment, determining that (1) Mr. Squire
failed to establish a prima facie claim of age discrimination; (2) a claim for promissory estoppel
cannot be asserted against a political subdivision, and that Mr. Squire had failed to submit any
evidence of promises made to him that would suggest he could return to his former position with
the road department; (3) Mr. Squire failed to set forth any evidence demonstrating that he was
discharged in violation of public policy or in retaliation; and (4) as Mrs. Squire’s loss of
consortium claim was dependent on Mr. Squire’s claims, and since the court found that Carlisle
Township was entitled to summary judgment on all of Mr. Squire’s claims, it was also entitled to
summary judgment on Mrs. Squire’s claim.
{¶5} The Squires filed this timely appeal, raising one assignment of error for our
review.
II.
Assignment of Error
The trial court erred by granting Carlisle Township’s motion for summary
judgment.
{¶6} In their sole assignment of error, the Squires contend that the trial court erred
when it granted Carlisle Township’s motion for summary judgment as to their claims for
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promissory estoppel, breach of implied contract, wrongful termination, and loss of consortium.
Mr. Squire does not contend that the trial court erred when it granted Carlisle Township’s motion
for summary judgment as to his claim for age discrimination.
{¶7} Under Civ.R. 56(C), summary judgment is appropriate when:
(1)[no] genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from
the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). “Before making such a contrary
finding, however, a court must view the facts in the light most favorable to the non-moving party
and must resolve any doubt in favor of the non-moving party.” Stepp v. Medina City School
Dist. Bd. of Edn., 9th Dist. Medina Nos. 15CA0071-M, 15CA0073-M, 2016-Ohio-5875, ¶ 22.
“A trial court does not have the liberty to choose among reasonable inferences in the context of
summary judgment, and all competing inferences and questions of credibility must be resolved in
the nonmoving party’s favor.” Kelvon Properties, Ltd. v. Medina Automotive, L.L.C., 9th Dist.
Medina No. 18CA0062-M, 2019-Ohio-584, ¶ 4, citing Perez v. Scripps-Howard Broadcasting
Co., 35 Ohio St.3d 215, 218 (1988). The movant bears the initial burden of demonstrating the
absence of genuine issues of material fact concerning the essential elements of the nonmoving
party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the moving party satisfies this
burden, the non-moving party “must set forth specific facts showing that there is a genuine issue
for trial.” Id. at 293.
A. Promissory Estoppel
{¶8} The doctrine of promissory estoppel is equitable in nature and provides a remedy
through the enforcement of a gratuitous promise. Hortman v. Miamisburg, 110 Ohio St.3d 194,
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2006-Ohio-4251, ¶ 24. The Supreme Court of Ohio has expressly held that “[t]he doctrines of
equitable estoppel and promissory estoppel are inapplicable against a political subdivision when
the political subdivision is engaged in a governmental function.” Hortman, at syllabus.
{¶9} In its motion for summary judgment, Carlisle Township alleges Mr. Squire’s
promissory estoppel claim cannot be maintained against it because it was engaged in a
governmental function—the operation of a road department. In support of its argument that the
operation of a road department and the employment decisions made in exercise of that operation
are a governmental function, Carlisle Township points to R.C. 2744.01(C)(2)(e). That statute
defines the maintenance and repairs of roads, highways, streets, avenues, alleys, and bridges as a
governmental function for the purposes of Ohio’s political subdivision tort liability act. See R.C.
2744.01, et seq. In their response and on appeal, however, the Squires argue that this definition
is inapplicable to Mr. Squire’s claim because Ohio’s political subdivision tort liability statute
specifically excludes civil actions by an employee against his political subdivision relative to any
matter that arises out of the employment relationship, see R.C. 2744.09(B), and civil actions by
an employee of a political subdivision relative to wages, hours, conditions, or other terms of
employment, see R.C. 2744.09(C).
{¶10} While we agree that the political subdivision tort liability statute is only
applicable in the context of a tort claim asserted against a political subdivision, Ohio courts—
including this District—regularly look to the statute to determine what acts are “governmental
functions” in the context of a promissory estoppel claim. See e.g. Meeker v. Akron Health Dept.,
9th Dist. Summit No. 24539, 2009-Ohio-3560, ¶ 7 (citing R.C. 2744.01(C)(2)(l) and (G)(2)(d)
defining governmental and proprietary functions for sewer systems under the Political
Subdivision Tort Liability Act); Kenney v. City of Cleveland, 8th Dist. Cuyahoga No. 105664,
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2018-Ohio-1186, ¶ 13 (citing R.C. 2744.01(G)(2)(c) to demonstrate that the operation of a utility
is not a governmental function, but rather a proprietary function); Porter v. Probst, 7th Dist.
Belmont No. 13 BE 36, 2014-Ohio-3789, ¶ 31-32 (citing R.C. 2744.01(C)(2)(h) to demonstrate
that the operation of a jail constitutes a government function); Inwood Village, Ltd. v. Cincinnati,
1st Dist. Hamilton No. C-110117, 2011-Ohio-6632, ¶ 16-19 (citing R.C. 2744.01(C)(2)(q) to
demonstrate that an urban renewal project was a governmental function); Cosby v. Franklin Cty.
Dept. of Job and Family Servs., 10th Dist. Franklin No. 07AP-41, 2007-Ohio-6641, ¶ 30 (citing
R.C. 2744.01(C)(2)(m) to demonstrate that the operation of a job and family services department
is a governmental function). Accordingly, we conclude that although the political subdivision
tort liability statute is not relevant in determining whether Carlisle Township is immune from the
promissory estoppel claim, it is relevant in determining whether Carlisle Township was
performing a governmental function. See U.S. Bank National Association v. City of Cincinnati,
1st Dist. Hamilton Nos. C-170526, C-170536, C-180093, 2019-Ohio-1866, ¶ 11; Kenney at ¶ 11-
13.
{¶11} As stated above, R.C. 2744.01(C)(2)(e) expressly defines the maintenance and
repairs of roads, highways, streets, avenues, alleys, and bridges as governmental functions.
Moreover, the act of hiring, supervising, and retaining personnel to perform such maintenance
and repairs cannot be considered apart from that governmental function. See Burchard v.
Ashland County Board of Developmental Disabilities, 5th Dist. Ashland No. 17-COA-041, 2018-
Ohio-4408, ¶ 31 (compiling cases).
{¶12} Therefore, we conclude that the trial court did not err when it granted Carlisle
Township summary judgment as to Mr. Squire’s promissory estoppel claim.
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B. Discharge in violation of public policy & Retaliation
{¶13} In their merit brief, the Squires contend that the trial court erred when it
determined that Mr. Squire had failed to set forth any evidence demonstrating that he was
discharged in retaliation because Mr. Squire was not terminated until after he requested that he
return to his prior position. However, in developing their argument, the Squires rely entirely on
the their argument made in support of their claim that the trial court erred when it determined
Mr. Squire had failed to set forth any evidence demonstrating that he had been discharged in
violation of public policy because it failed to recognize the public policy demonstrated by
O.A.C. 123:1-23-03. Accordingly, we will consider these arguments together.
{¶14} It is undisputed that Mr. Squire was an at-will employee. Generally, the
termination of an at-will employee’s relationship with an employer does not give rise to an
action for damages. Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, ¶ 11.
“However, if an employee is discharged or disciplined in contravention of a clear public policy
articulated in the Ohio or United States Constitution, federal or state statutes, administrative rules
and regulations, or common law, a cause of action for wrongful discharge in violation of public
policy may exist as an exception to the general rule.” Id.{¶15} In order to maintain a claim for wrongful discharge in violation of public policy a
plaintiff must show:
1. That 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. That 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).
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4. The employer lacked overriding legitimate business justification for the
dismissal (the overriding justification element).
(Emphasis sic.) (Internal quotations marks and citations omitted.) Dohme at ¶ 12-16. To satisfy
the clarity element, “a terminated employee must articulate a clear public policy by citation of
specific provisions in the federal or state constitution, federal or state statutes, administrative
rules and regulations, or common law.” Id. at syllabus. Whether the clarity element has been
met is a question of law to be determined by the court. Collins v. Rizkana, 73 Ohio St.3d 65, 70
(1995).
{¶16} In his complaint, Mr. Squire alleged he was discharged in violation of the public
policy set forth in O.A.C. 123:1-23-03(D). That regulation states:
Intra-agency promotion. If an employee accepts an intra-agency promotion and is
found to be unsatisfactory in the advanced position, the employee shall be
demoted to the position from which the employee was promoted or to a similar
position. Upon such demotion, the employee’s salary shall be the same that the
employee was receiving prior to promotion, except for changes in pay range that
may have occurred or any step increase to which the employee would have been
entitled in the lower classification.
If an employee takes a civil service examination for a classification having a
higher base pay range than the employee holds at the time of the examination and
is appointed from the resulting eligible list to a position in the same agency, this
action shall be considered a promotion so far as the probationary period is
concerned, and the employee shall be demoted in accordance with this rule if the
employee’s services are found unsatisfactory.
{¶17} This regulation is contained within Administrative Code Section 123, which is
promulgated by the Director of Ohio’s Department of Administrative Services. In addition to
other powers enumerated by law, relevant to this matter, the power and duties of the director of
administrate services include oversight of the classified service of the state. See R.C. 124.04.
The “classified service” is “the competitive classified civil service of the state, the several
counties, cities, city health districts, general health districts, and city school districts of the state,
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and civil service townships.” R.C. 124.01(C). A township is not considered a “civil service
township” unless it has a population of 10,000 or more, has a police or fire department of ten or
more full-time paid employees, and a civil service commission established under R.C.
124.40(B).
{¶18} In its motion for summary judgment, Carlisle Township points out that this
regulation is not applicable to Carlisle Township or the employment positions previously held by
Mr. Squire since it is not a civil service township—a fact the Squires concede in their brief in
opposition to the motion for summary judgment. See R.C. 124.01(C); R.C. 124.11(B).
Accordingly, we conclude that Carlisle Township met its initial Dresher burden to demonstrate
the absence of a genuine issue of material fact concerning the clarity element of Mr. Squire’s
claim for wrongful termination in violation of a public policy. See Dresher, 75 Ohio St.3d at
292.
{¶19} Although the Squires acknowledge that O.A.C. 123:1-23-03(D) itself is not
applicable to Carlisle Township, they contend that it demonstrates a public policy with respect to
the promotion of all government employees. However, the Squires do not provide, and we are
unable to find, any legal authority to offer the slightest support for this contention. Moreover,
even assuming this regulation demonstrates a public policy with regard to the promotion of
employees within the classified civil service, to suggest such a policy should or does include all
government employees ignores that the law specifically distinguishes between classified and
unclassified civil service, see R.C. 124.11, and excludes certain government employee
relationships from civil service entirely, see R.C. 124.01(A); R.C. R.C. 124.40(B).
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{¶20} Therefore, we conclude that the Squires did not meet their reciprocal Dresher
burden to set forth specific facts showing a genuine issue with regard to the clarity element. See
Dresher, 75 Ohio St.3d at 293.
C. Implied Contract
{¶21} On appeal the Squires contend that the trial court erred when it found that they
had failed to present any evidence of promises made to Mr. Squire regarding his employment
and thereafter granted summary judgment to Carlisle Township on Mr. Squire’s implied contract
claim.
{¶22} An “exception to the employment at-will doctrine is an express or implied
contract altering the terms for discharge.” Shetterly v. WHR Health Sys., 9th Dist. Medina No.
08CA0026-M, 2009-Ohio-673, ¶ 12. To prove the existence of an implied contract, a plaintiff
“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.
Summit No. 23882, 2008-Ohio-112, ¶ 7. Thus, “specific representations leading to an
expectation of continued employment are essential.” Id. at ¶ 8, citing Wing v. Anchor Media, Ltd
of Texas, 59 Ohio St.3d 108 (1991), paragraph two of the syllabus; Moss v. Electroalloys Corp.,
9th Dist. Lorain No. 02CA008111, 2003-Ohio-831, ¶ 12. “General expressions of optimism or
good will are not enough.” Id. at ¶ 8.
{¶23} In its motion for summary judgment, Carlisle Township argued that Mr. Squire
could not maintain a claim for implied contract because no evidence was presented to suggest
any verbal agreement between the parties and “Mr. Squire admitted as much.” In support of
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their motion, Carlisle Township pointed to the following exchange on cross-examination during
Mr. Squire’s deposition testimony:
Q. Do you recall any verbal agreement when you were put into the position of
Acting Superintendent?
A. No.
{¶24} In their brief in opposition, the Squires did not point to any evidence of an
agreement, stating only that “[i]t was [Mr. Squire]’s understanding that, since he was the Acting
Road Superintendent and not hired as the Road Superintendent, along with the fact that this
position was communicated as a trial position, he could return to his prior position.” The nature
of the “trial position” and Mr. Squire’s “understanding,” however, are not the equivalent of a
specific representation by Carlisle Township of continued employment if Mr. Squire’s “trial
position” as acting road superintendent did not work out.
{¶25} Although the Squires did not point to any specific representations in their brief in
opposition to summary judgment, they argue in their merit brief on appeal that Mr. Squire’s
affidavit attached to his brief in opposition “provides direct evidence of a verbal agreement”
between Mr. Squire and Carlisle Township. Nonetheless, the Squires do not identify the alleged
“direct evidence” and a thorough review of that affidavit belies this contention. The only
references in Mr. Squire’s affidavit related to any representations made to him are in lines 23 and
24. In line 23, Mr. Squire avers “I was told by the Trustees that I was the Acting Road
Superintendent because I could try out the position.” Mr. Squire then avers in line 24: “I was not
told what would happen if I wanted to return to my prior position from Acting Road
Superintendent.” Thus, Mr. Squire does not point to any specific representations he received that
would suggest he could return to his prior position if he did not wish to continue in the road
superintendent position.
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{¶26} Therefore, we determine that there was no genuine issue of material fact that
specific representations were made to Mr. Squire by Carlisle Township. Accordingly, the trial
court did not err when it granted summary judgment to Carlisle Township on Mr. Squire’s
implied contract claim.
D. Loss of Consortium
{¶27} In this case, the trial court also granted summary judgment to Carlisle Township
on Mrs. Squire’s loss of consortium claim because it had concluded that Carlisle Township was
entitled to summary judgment on all of Mr. Squire’s claims. On appeal, the Squires argue that
the trial court erred in dismissing Mrs. Carlisle’s claim because Mr. Squire’s claims “should
proceed.” However, because we have determined that summary judgment in favor of Carlisle
Township was proper on all of Mr. Squire’s claims, we further conclude that the trial court
properly granted summary judgment in favor of Carlisle Township on Mrs. Squire’s derivative
loss of consortium claim. See Kronjak v. New Plaza Management, LLC, 9th Dist. Summit No.
28302, 2017-Ohio-1184, ¶ 17.
E. Conclusion
{¶28} Based on the foregoing, the Squires’ sole assignment of error is overruled.
III.
{¶29} The Squires’ assignment of error is overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, 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(C). 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 Appellants.
JULIE A. SCHAFER
FOR THE COURT
HENSAL, J.
CONCURS.
CARR, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶30} To the extent the majority concludes that the trial court did not err in granting
summary judgment to Carlisle Township on Mr. Squire’s promissory estoppel claim, I
respectfully dissent.
{¶31} It is true that the Ohio Supreme Court held in Hortman v. Miamisburg, 110 Ohio
St.3d 194, 2006-Ohio-4251, syllabus, that “[t]he doctrines of equitable estoppel and promissory
estoppel are inapplicable against a political subdivision when the political subdivision is engaged
in a governmental function.” However, Hortman was a straightforward case involving a simple
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application of the rule set forth above. It involved property owners who sued Miamisburg for
damages caused to their property during a road-improvement project. See id. at ¶ 2. Despite
this, other appellate courts, and now this Court, have extended the reach of Hortman to include
promissory estoppel claims involving the hiring, supervision, or termination of employees
working for a political subdivision for a department that performs a governmental function. See,
e.g., Porter v. Probst, 7th Dist. Belmont No. 13 BE 36, 2014-Ohio-3789, ¶ 32. The reasoning
appears to be that, because the department performs a governmental function, the act of hiring,
supervising, or terminating the employees in that department must also be a governmental
function. See id. As there is nothing within the text of Hortman that suggests it should be
extended to include the foregoing circumstances, I respectfully dissent.
APPEARANCES:
JOHN J. GILL, Attorney at Law, for Appellants.
FRANK H. SCIALDONE, Attorney at Law, for Appellee.