Wingerter v. RBS Citizens National Association

Filing 10

Memorandum Opinion and Order For the reasons stated herein, Defendant's 6 Motion for Judgment on the Pleadings is denied with respect to Count One and granted with respect to Count Two. Judge Benita Y. Pearson on 6/19/2013. Related document(s) 6 . (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CYNTHIA A. WINGERTER,
Plaintiff,
v.
RBS CITIZENS NATIONAL
ASSOCIATION,
Defendant.

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CASE NO. 5:13CV0756

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 6]

Pending is Defendant RBS Citizens National Association’s Motion for Judgment on the
Pleadings. ECF No. 6. Defendant moves pursuant to Federal Rule of Civil Procedure 12(c),
asking the Court to dismiss Plaintiff Cynthia A. Wingerter’s Complaint in its entirety. The Court
has reviewed the motion, responsive briefs and the applicable law. For the reasons provided
below, Defendant’s motion is denied in part and granted in part.
I. Procedural and Factual Background
This action was filed in the Stark County, Ohio Court of Common Pleas on March 8,
2013, based on claims of promissory estoppel and forced defamation. ECF No. 1-1. Defendant
removed the case to this Court on April 5, 2013, on the basis of diversity of citizenship
jurisdiction. ECF No. 1. The allegations, which the Court takes as true for the purposes of this
motion, are set forth below.
Plaintiff was employed as a branch manager at one of Defendant’s Charter One Bank
locations. ECF No. 1-1 at ¶ 4. Plaintiff was an “at-will” employee. ECF No. 4-1 at PageID #:

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33. In the first quarter of 2012, Plaintiff discovered that her branch was receiving questionable
credits for business accounts that were opened by a business banking officer. ECF No. 1-1 at ¶ 7.
The calculation of her bonus was partly determined by these credits.1 Id. at ¶ 39. When Plaintiff
learned of these credits, she immediately notified her direct supervisor, Danielle Burrrows Mire.
Id. at ¶¶ 11, 40. The supervisor told Plaintiff that she was entitled to the credits and that proper
procedure had been followed. Id. at ¶ 41. Plaintiff, again, questioned her supervisor about the
credits when they appeared on the monthly reports for the second quarter of 2012 and was, again,
assured by Mire that the credits were appropriately attributed to her. Id. at ¶¶ 14-16. After the
second quarter of 2012, the branch no longer received these credits. Id. at ¶ 20.
In the Summer of 2012, Mire left the employment of Defendant. Id. at ¶ 22. In
November, 2012, the replacement supervisor, Robert Lieb, asked Plaintiff why she was having
less success after doing so well opening accounts in early 2012. Id. at ¶ 23. Plaintiff informed
Lieb that the early 2012 accounts had been opened by a business banker and that Mire had
assured her that proper procedure had been followed. Id. at ¶¶ 24-25. On December 11, 2012,
Defendant terminated Plaintiff because she violated company policy and code of ethics when she
knowingly accepted an improper bonus. Id. at ¶¶ 6, 29, 50.
As a result of her termination, Plaintiff filed the underlying action. In Count One,
Plaintiff asserts a claim of promissory estoppel, alleging that her supervisor’s assurances that the
credits were proper amounted to a promise that the credits were proper, and that promise was

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Under the company’s incentive program, Plaintiff received a bonus based on
credits that her branch received. Id. at ¶ 10.
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breached when Defendant terminated Plaintiff for receiving the bonus resulting from the credits.
Id. at ¶¶ 41-46. Plaintiff’s second claim is based on the doctrine of “forced defamation.” Id. at
¶¶ 49-58. Plaintiff alleges that, if the termination remains in effect, she will be forced to inform
prospective employers that she was discharged by her prior employer for receiving improper
bonuses and violating the company code of ethics. Id. at ¶¶ 52-23.
On April 11, 2013, Defendant moved for judgment on the pleadings with respect to
Counts One and Two. ECF No. 6. Defendant argues that: (1) the promissory estoppel claim
should fail because Plaintiff has not alleged, as an exception to her “at-will” employment,” that
she was promised continued employment; and (2) the defamation claim should fail because
“forced defamation” is not recognized under Ohio law and Plaintiff has not alleged that any
publication has occurred. ECF Nos. 6-1 and 9.
II. Standard of Review
A motion for judgment on the pleadings under Rule 12(c) is reviewed under the same
standard applicable to a motion to dismiss under Rule 12(b)(6). Tucker v. Middleburg-Legacy
Place, 539 F.3d 545, 549 (6th Cir. 2008). The Court must construe the complaint in the light
most favorable to the non-moving party, accept all factual allegations as true, and make
reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v.
Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008); In re Sofamor Danek
Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997). The complaint must “give the defendant fair
notice of what the claim is and the grounds upon which it rests.” Nader v. Blackwell, 545 F.3d
459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). A motion

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brought pursuant to Rule 12(c) is appropriately granted “when no material issue of fact exists and
the party making the motion is entitled to judgment as a matter of law.” JPMorgan Chase Bank,
N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007) (quoting Paskvan v. City of Cleveland Civil
Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir. 1991)).
III. Discussion
A. Count One - Promissory Estoppel Claim
In Count One, Plaintiff alleges that Defendant breached the promises made by Mire,
Plaintiff’s supervisor when the credits accrued, when it terminated Plaintiff as a result of the
questionable credits. ECF No. 1-1 at ¶ 46. Plaintiff alleges that she was assured by Mire that she
was entitled to the credits and that proper procedure had been followed. Id. at ¶ 41. Plaintiff also
alleges that, relying on Mire’s assurances, she took no further action in determinating the
legitimacy of the credits. Id. at ¶ 44. Defendant argues that because Plaintiff failed to allege that
she had been promised continued employment she remained an “at-will” employee whom can be
terminated at any time and for any reason. ECF Nos. 6-1 at PageID #: 42 and 9 at PageID #: 101.
Ohio law recognizes “a promissory estoppel exception to an employer's unfettered right to
discharge an at-will employee.” Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St. 3d 108, 110,
570 N.E.2d 1095, 1097 (1991). Promissory estoppel has been defined as “[a] promise which the
promisor should reasonably expect to induce action or forbearance on the part of the promisee or
a third person and which does induce such action or forbearance is binding if injustice can be
avoided only by enforcement of the promise.” Hortman v. Miamisburg, 110 Ohio St. 3d 194,
199, 852 N.E.2d 716, 720 (2006) (quoting Restatement (Second) of Contracts, § 90). “In order

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to prevail on a claim of promissory estoppel, [plaintiff] must show a clear and unambiguous
promise and reliance by the party to whom the promise is made. The reliance must be reasonable
and foreseeable, and the party relying on the promise must have been injured by the reliance.”
HAD Ents. v. Galloway, 192 Ohio App. 3d 133, 144, 948 N.E.2d 473, 481 (4th Dist. 2011).
When viewed in the light most favorable to Plaintiff, drawing all reasonable inferences in
her favor, Plaintiff has sufficiently established a promissory estoppel claim. Plaintiff was told by
her then supervisor–Mire–that she was entitled to the credits and that proper procedure had been
followed. ECF No. 1-1 at ¶¶ 12, 16, 41. These assurances may be reasonably construed as a
promise that Plaintiff would not be terminated for accepting a bonus resulting from the credits.
The court in Nott v. Woodstock Care Ctr., Inc., No. C-3-99-133, 2001 WL 1135057 (S.D.
Ohio Mar. 21, 2001) reached a similar conclusion. In Nott, the employee was terminated because
of her weak arm after having been assured by a regional administrator, “[w]e know about your
arm. We’ve known about your arm. . . . It’s not an issue now nor will it ever be.” Id. at *13.
On a motion for summary judgment, the court found that the employee had sufficiently
established a claim of promissory estoppel because the employer’s “statement reasonably may be
construed as a promise that [the employer] would not terminate [the employee] due to her arm
weakness.” Id. Here, a rational jury could find the supervisor’s assurance that the credits were
proper and that Plaintiff was entitled to the credits as a clear and unambiguous promise that
Plaintiff would not be terminated for receiving the bonus resulting from the credits.

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B. Count Two - Forced Defamation Claim
In Count Two, Plaintiff raises a claim of “forced defamation,” alleging that, because her
job prospects lie in positions of trust and authority, she will be forced to disclose to prospective
employers the reason for her termination by Defendant. ECF No. 1-1 at ¶¶ 52-54. This claim
fails for two reasons. First, under Ohio law, “possible publication to a potential future employer
[does] not constitute publication to a third party in the context of a defamation claim.” Shock v.
St. Rita's Med. Ctr., No. 3:12-CV-1240, 2012 WL 5354571, at *7 (N.D. Ohio Oct. 29, 2012)
(emphasis added) (citing Potter v. RETS Tech Ctr. Co., Inc., Nos. 22012, 22014, 2008 WL
615423, at *6 (Ohio App. 2d Dist. Mar. 7, 2008)); see also Miller v. City of Columbus, 52 F.
App’x 672, 674 (6th Cir. 2002) (affirming the District Court’s dismissal of plaintiff’s defamation
claim because “[a]lthough the complaint appears to attempt to allege claims of defamation, it
contains no allegations which identify any specific defamatory utterance or publication, or the
speaker, author, or recipients thereof.”); Parry v. Mohawk Motors, 236 F.3d 299, 313 (6th Cir.
2000) (“Plaintiff cannot point to any facts demonstrating that any prospective employer stated
that Plaintiff tested positive for drugs or otherwise made or were told false statements regarding
Plaintiff’s test. . . . Therefore, Plaintiff cannot sustain a defamation claim.”). Plaintiff has failed
to allege actual publication of any defamatory statement to a third party.
Second, “[t]he doctrine of ‘forced republication’ has not been recognized under Ohio
law.” Schacht v. Ameritrust Co. N.A., No. 64782, 1994 WL 86229, at *3 n.3 (Ohio App. 8th
Dist. Mar. 17, 1994); see Shock, 2012 WL 5354571, at *8 (“No Ohio court . . . has yet embraced
the idea that an alleged victim of defamation can satisfy the publication element of the tort by

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publishing it himself, i.e. to prospective employers.”) (citing Guy v. McCartney, No. 00JE7, 2002
WL 1376235, at *6 (Ohio App. 7th Dist. June 3, 2002)). Notably, in 2002, the Supreme Court of
Ohio declined to answer the certified question of whether “forced defamation” satisfies the
publication element under Ohio law. Golem v. Put-In-Bay, 94 Ohio St. 3d 1426, 761 N.E.2d 43
(2002). This Court declines the opportunity to define a State law offense when the highest court
of the State has refused to do so.
IV. Conclusion
Accordingly, Defendant’s Motion for Judgment on the Pleadings (ECF No. 6) is denied
with respect to Count One and granted with respect to Count Two.

IT IS SO ORDERED.

June 19, 2013
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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