Wright v. Honda of America Manufacturing, Inc.

Francis E. Sweeney, Sr., J.

In this appeal, we must decide whether this was an appropriate case for summary judgment. To answer this question, we need to determine whether appellant is an employee-at-will, as the lower courts found, or whether there exists a genuine issue of material fact to support appellant’s position that there was an implied contract of employment which limited appellee’s right to terminate her.4 For the following reasons, we find that summary judgment was inappropriate, as sufficient evidence was presented to rebut the employment-at-will presumption and to raise a genuine issue of material fact as to whether an implied employment agreement exists. Consequently, we reverse the judgment of the court of appeals and remand this cause to the trial court.

In general, under the employment-at-will doctrine, the employment relationship between employer and employee is terminable at the will of either; thus, an employee is subject to discharge by an employer at any time, even without cause. See Henkel v. Educational Research Council of Am. (1976), 45 Ohio St.2d 249, 255, 74 O.O.2d 415, 418, 344 N.E.2d 118, 121-122. However, in Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104-105, 19 OBR 261, 264-265, 483 N.E.2d 150, 154-155, we first recognized the harshness of this rule and carved out two exceptions to the employment-at-will doctrine: (1) the existence of implied or express contractual provisions which alter the terms of discharge; and (2) the existence of promissory estoppel where representations or promises have been made to an employee.

In Mers, we recognized that in order to ascertain the explicit and implicit terms concerning discharge in an oral employment agreement, it is important for the trier of fact to review the history of relations between the employer and employee and the “facts and circumstances” surrounding the employment-at-will relationship. These “facts and circumstances” include “the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate the question •* * *.” Id. at 104, 19 OBR at 264, 483 N.E.2d at 154.

Today we take the opportunity to decide what other facts and circumstances can be considered by the trial court. Thus, in order to overcome a summary judgment motion and to raise a factual issue as to whether an employment-at-will agreement has been altered by an implied agreement, the trier of fact can *575consider, in addition to the facts and circumstances set forth in Mers v. Dispatch Printing Co., supra, such evidence, which includes, but is not limited to, that information contained in employee handbooks, oral representations made by supervisory personnel that employees have been promised job security in exchange for good performance, and written assurances reflecting company policy.

In this case, in response to appellee’s summary judgment motion, appellant submitted an array of evidence to raise a factual issue that an implied employment agreement existed in which appellant could not be terminated unless she failed to perform her job adequately. Beginning at orientation, Honda stressed to its employees the importance of attendance and performing quality work. The expectation of continued employment based upon these principles was further reinforced by language contained in Honda’s Associate Handbook. For instance, Part V of the handbook provides that “[t]he job security of each of you depends on you doing your very best on your job with the spirit of cooperation.” Although employee handbooks are not in and of themselves a contract of employment, they are nevertheless evidence of the employment contract. Kelly v. Georgia-Pacific Corp. (1989), 46 Ohio St.3d 134, 139, 545 N.E.2d 1244, 1249.

Progress reports and promotion letters also stressed appellant’s “continued growth” with the company and future opportunity “to help [Honda] achieve the goal of becoming the best place to work in the motor vehicle industry.” In further evidence, appellant’s supervisor commented in a progress report that appellant was destined “to go as far as she wants to if she has the ability to maintain her good work ethic and determination.” Thus, based upon Honda’s oral and written assurances that good attendance and quality work were linked to job security, Wright believed that if she attained these goals and performed her job well, she could expect continued employment with the company.

There is also evidence that management believed that this was Honda policy. Susan Boggs, the person who was ultimately responsible for terminating appellant, testified by deposition that if an employee performs his or her job in an acceptable manner and does not violate any practices of the company, the employee can expect to have continued employment with Honda. Boggs later “clarified” this response, upon review of her transcribed deposition, by stating that Honda does not promise continuous employment to any associate. The fact that Boggs changed her response does not mean that her original testimony should be ignored. Instead, when a deponent reviews his or her deposition testimony under Civ.R. 30(E)5 and makes changes in the form and substance of *576such deposition testimony, both the original testimony as well as the changes remain in the record and are to be considered by the trier of fact. See Lugtig v. Thomas (N.D.Ill.1981), 89 F.R.D. 639.6

Furthermore, Honda’s course of dealing with appellant regarding her alleged violation of its anti-nepotism policy reinforced appellant’s belief that she could expect job security. According to appellant, when she was interviewed, she was neither asked about direct relatives nor told that Honda has an anti-nepotism policy. Once she became aware of such a policy, she was told by two individuals in management that she had no reason to be concerned and that there were other employees who retained their positions under similar circumstances. Based upon these assurances and upon her reliance on the Associate Handbook, which called for the transfer, not termination of, direct relatives, appellant felt secure and continued to work diligently for Honda.

Honda claims that its anti-nepotism policy clearly calls for the termination of an employee once it is discovered that the employee was asked and answered the question of whether he or she has any direct relatives employed by the company. Relying on the interview check sheet as proof that appellant was asked this question, Honda states that it terminated her. Honda concedes that it did allow some “direct relatives” to slip through the cracks as the time of its original mass hiring, but says this was not the case when appellant was hired. Thus, according to Honda, the transfer provision in the'employee handbook applies only to this small number of employees who were hired at the time of the mass hiring.

Certainly, this dispute in facts surrounding appellant’s termination can be resolved only by the trier of fact. Nevertheless, we find that the manner in which Honda terminated appellant cannot be condoned. Particularly egregious is that Honda chose to bring appellant back to work the day after she was ordered home, permitted her to work for a month, and then terminated her. Whether this is routine procedure as Honda suggests belies the point if, in construing the evidence in appellant’s favor, we accept as true that appellant was told that Honda had made a mistake in sending her home and that the matter was closed.

Honda’s president, in his message to employees, states in the Associate Handbook the following: “The management policy of Honda of America has at its core the belief that the human being is the most important asset in a manufactur*577ing operation. Under this policy, each of you is to be treated fairly, equally, and with respect.” Unfortunately, Honda has failed to practice what it preaches. Instead, Honda has made a mockery of this well-meaning message by terminating appellant, a loyal, hard-working employee who intended to make Honda her career employer, in the manner described.

We are persuaded that appellant has presented sufficient evidence to create a fact question as to whether Honda, through its policies, past practices, and representations altered the at-will nature of the employment agreement by creating an expectation of continued employment. Consequently, under Civ.R. 56(C), since the facts are subject to reasonable dispute, the matter should not have been disposed of by a motion for summary judgment. Instead, the merits of appellant’s claims should be decided at trial. Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 360, 12 O.O.3d 321, 323, 390 N.E.2d 810, 813.

We find that the court of appeals erred in affirming the grant of summary judgment for Honda. Accordingly, the judgment of the court of appeals is reversed, and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

Douglas and Resnick, JJ., concur. Moyer, C.J., Wright and Pfeifer, JJ., concur in the syllabus and judgment. Cook, J., dissents.

. Although appellant also claims that promissory estoppel is applicable, we believe that the implied contract exception to the employment-at-will doctrine is pertinent to this case.

. Civ.R. 30(E) provides: “When testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness *576desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. * * * ”

. We note that other Honda deponents, in reviewing their deposition answers, made substantive changes on key points, apparently to bolster Honda’s position that appellant is nothing more than an employee-at-will. These substantive changes in deposition testimony bring the credibility of these deponents into play, which is another reason why summary judgment is inappropriate. See Turner v. Turner (1993), 67 Ohio St.3d 337, 617 N.E.2d 1123, paragraph one of the syllabus.