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

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DENNIS PRICE 

 Plaintiff-Appellant 

-vsKAISER ALUMINUM FABRICATED 

PRODUCTS, LLC 

 Defendant-Appellee 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. John W. Wise, J. 

Hon. Patricia A. Delaney, J. 

Case No. 12 CA 72 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 11 CV 1208 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: June 5, 2013 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

JAMES R. COOPER TODD L. SARVER 

MORROW, GORDON & BYRD STEPTOE & JOHNSON 

33 West Main Street, P. O. Box 4190 41 South High Street, Suite 200 

Newark, Ohio 43058-4190 Columbus, Ohio 43215 
Licking County, Case No. 12 CA 72 2

Wise, J. 

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

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

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

complaint for wrongful discharge and age discrimination.1

 The relevant facts leading to 

this appeal are as follows. 

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

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

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

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

of appellee in 1998. 

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

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

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

further analyzed infra. 

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

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

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

promissory estoppel claims. 

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

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

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

 

1

 Defendant-Appellee was named in the underlying lawsuit as “Kaiser Aluminum & 

Chemical Corporation.” 
Licking County, Case No. 12 CA 72 3

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

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

appellee filed a reply in support of its motion. 

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

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

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

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

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

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

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

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

See Judgment Entry at 2-5. 

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

raises the following two Assignments of Error: 

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

JUDGMENT THAT THERE WERE NOT GENUINE ISSUES OF MATERIAL FACT 

CONCERNING WHETHER APPELLANT WAS THE SUBJECT OF AGE 

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

THE OHIO REVISED CODE AND OHIO LAW IN CONNECTION WITH THE 

TERMINATION OF APPELLANT'S EMPLOYMENT BY APPELLEE. 

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

JUDGMENT THAT THERE WERE NOT GENIUNE ISSUES OF MATERIAL FACT 

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

WITH APPELLANT AND WHETHER APPELLANT WAS ENTITLED TO RELIEF 

UNDER THE LEGAL DOCTRINE OF PROMISSORY ESTOPPEL.” 

I. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

evidence as the trial court. Porter v. Ward, Richland App. No. 07 CA 33, 2007-Ohio5301, 2007 WL 2874308, ¶ 34, citing Smiddy v. Wedding Party, Inc. (1987), 30 Ohio 

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

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

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

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

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

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

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

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

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

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

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

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

Direct Age Discrimination Case

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

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

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

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

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

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

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

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

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

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

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

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

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

N.E.2d 145. 

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

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

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

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

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

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

processes.” Egli v. Congress Lake Club, Stark App.No. 2009CA00216, 2010-Ohio2444, ¶ 32, quoting Klaus v. Kilb, Rogal & Hamilton Co. of Ohio (S.D.Ohio 2006), 437 

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

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

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

by appellant. 

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

impacted by the computer audit were given progressive discipline rather than 

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

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

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

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

category of indirect evidence of discrimination, rather than direct. 

 
Licking County, Case No. 12 CA 72 7

Indirect Age Discrimination Case

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

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

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

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

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

803 N.E.2d 781, 2004-Ohio-723, ¶ 20. 

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

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

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

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

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

facie case. See Appellee’s Brief at 12. 

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

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

age discrimination. 

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

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

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

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

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

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

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

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

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

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

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

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

the employer's proffered reasons are pretextual is insufficient to withstand a summaryjudgment motion. See Surry v. Cuyahoga Community College, 149 Ohio App.3d 528, 

2002-Ohio-5356, 778 N.E.2d 91, ¶ 24. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

sent or received. 

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

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

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

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

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

properly granted in favor of appellee in that regard. 

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

II. 

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

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

contract and promissory estoppel. We disagree. 

Employment Contract Claim

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

2

 Although our research has uncovered no Ohio case law addressing the “as shall be 

mutually agreeable” language, we note a California appellate court has interpreted 

similar language as merely creating a contract of employment terminable at will. See

Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986), 187 Cal.App.3d 299, 316, 231 

Cal.Rptr. 820. 
Licking County, Case No. 12 CA 72 11

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

Engermeir, which appellant claims increased his expectations of continued 

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

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

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

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

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

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

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

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

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

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

satisfied by the above isolated verbal statements of Engermeir. 

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

contract-based claim. 

Promissory Estoppel Claim

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

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

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

Tuscarawas Cty. Bd. of Commrs., Tuscarawas App.No. 2005AP070047, 2006-Ohio2527, ¶ 11, citing Karnes v. Doctors Hosp. (1990), 51 Ohio St.3d 139, 142, 555 N.E.2d 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

promissory estoppel-based claim. 

Conclusion

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

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

doctrine of promissory estoppel. 

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

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

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

By: Wise, J. 

Hoffman, P. J., and 

Delaney, J., concur. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES 

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

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DENNIS PRICE : 

 : 

 Plaintiff-Appellant : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

KAISER ALUMINUM FABRICATED : 

PRODUCTS, LLC : 

 : 

 Defendant-Appellee : Case No. 12 CA 72 

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

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

 Costs assessed to appellant. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES