Dunlap v. Edison Credit Union, Inc.

Donovan, Presiding Judge. ¶ 1 Plaintiff-appellant, Alyce F. Dunlap, appeals a judgment of the Clark County Municipal Court, in which the court held in favor of defendant-appellee, Edison Credit Union, Inc., on Dunlap’s claim for accrued but unpaid vacation leave in the amount of $6,937.38, including prejudgment and postjudgment interest. I ¶ 2 Dunlap was employed by Edison in a managerial position from January 1999 to April 2008. It is undisputed by either party that Dunlap was hired as an at-will employee. During the time she was employed by Edison, she accrued vacation at a rate of three weeks per year. Dunlap testified that due to the demands of her position, she was unable to use a substantial amount of her vacation time. When Dunlap retired from Edison in April 2008, she was paid for the 14 days of vacation that she had accrued in 2008 as well as four days worth of unused vacation carried over from 2007. In anticipation of litigation, Dunlap never cashed the check issued to her. ¶ 3 On October 3, 2008, Dunlap filed a complaint in which she alleged that in light of certain provisions in the Human Resource Policy Manual (“HRPM”), Edison failed to pay her accrued vacation leave that had remained unused during the entire term of her employment. Specifically, Dunlap asserted that she was entitled to accrued but unused vacation time dating to 2000 through 2007 that totaled approximately 38.5 days. Edison disagreed with Dunlap’s calculations, stating that she was only entitled to the vacation she had accrued in 2008, as well as one year’s worth of unused vacation carried over from 2007. Edison filed a motion for summary judgment on March 12, 2009. The trial court overruled Edison’s motion for summary judgment on April 13, 2009, stating that a genuine issue existed regarding “the construction of the language in the defendant’s employee policy governing the carryover of accrued but unused vacation leave.” 372 ¶ 4 A trial was held in this matter on April 21, 2009. On September 9, 2009, the trial court filed a written decision and entry in which the court issued a judgment in favor of Edison. Dunlap filed a timely notice of appeal with this court on October 5, 2009. II ¶ 5 Dunlap sole assignment of error is as follows: ¶ 6 “After the trial court determined that the ‘Human Resource Policy Manual’ (HRPM) did not form the basis of an employment contract, the trial court determined that appellant could not prevail on her claim for accrued vacation pay. The issue determined by the trial court was not dispositive of appellant’s claim.” (¶ 7} In her only assignment of error, Dunlap contends that the trial court mistakenly found that because she was an at-will employee, she was not entitled to enforcement of the terms and conditions set forth in the HRPM. While Dunlap does not dispute that she was, in fact, an at-will employee when she worked at Edison, Dunlap argues that the HRPM contains a provision that entitles her to accrued but unused vacation time dating to 2000 through 2007. In support of her assertion, Dunlap relies on Policy 202 of the HRPM, which states: ¶ 8 “I. Policy ¶ 9 “The Credit Union currently provides annual paid vacations according to the following guidelines. ¶ 10 “II. Guidelines ¶ 11 “ * * * ¶ 12 “G. Employees will not receive 'pay in lieu of taking accrued vacation, except upon termination set forth in paragraph I below. Employees are currently allowed to carry over a maximum of one week of vacation. ¶ 13 “ * * * ¶ 14 “I. Employees will receive vacation pay for all unused vacation earned at the time of termination.” ¶ 15 In light of the language in the preceding section of the HRPM, Dunlap argues that she is entitled to compensation for the following time periods which constitute unused vacation days totaling 38.5 days: a) 2000 — four days, b) 2001— eight days, c) 2002 — five days, d) 2003 — six days, e) 2004 — four days, f) 2005— four days, g) 2006 — two and one-half days, and h) 2007 — five days. ¶ 16 Edison, however, asserts that Policy 202 of HRPM cannot be interpreted to permit Dunlap to collect payment for all of her unused vacation days at the 373 termination of her employment. Scott Henigan, the president of the board of directors at Edison, testified that the board used Policy 202 as a guideline to reach the amount believed to be owed to Dunlap for her unused vacation days. Specifically, Henigan testified that after the board reviewed Dunlap’s employment records in conjunction with Policy 202, the board found that Dunlap was entitled to be paid for the 14 days of vacation that she had accrued in 2008 as well as four days’ worth of unused vacation carried over from 2007. ¶ 17 Moreover, Edison asserts that the HRPM does not constitute an employment contract between itself and Dunlap. Rather, Edison argues that the HRPM is merely a set of guidelines to be consulted when certain situations arise. In support of this assertion, Edison relies on the following sections of the HRPM: ¶ 18 “Policy 101 ¶ 19 “I. POLICY ¶ 20 “The Board of Directors and Management of Springfield Division-Ohio Edison Credit Union have produced this Human Resources Policy Manual (HRPM) in order to establish a framework around which the efforts of all employees can be coordinated. It is designed to assist the Manager in complying with relevant employment regulations and in promoting effective employee relations. The Board of Directors and Credit Union Management may modify, suspend or delete any of the policies stated in the HRPM without notice. To be effective, such changes must be in writing and signed by the Manager. ¶ 21 “II. GUIDELINES ¶ 22 “ * * * ¶ 23 “C. The policies outlined in the manual comply with legal requirements concerning the terms and conditions of employment. The manual is a management guide to general human resource methods at the Credit Union. It does not promise that the policies mentioned will be applicable in any given instance. The manual does not change the employment-at-will relationship in any way. ¶ 24 “ * * * ¶ 25 “Policy 102 ¶ 26 “I. POLICY ¶ 27 “ * * * ¶ 28 “II. GUIDELINES ¶ 29 “A. The HRPM is not an employment contract and does not provide any enforceable contractual rights to the employee with respect to his/her terms or conditions of employment. Neither these guidelines, nor any written or oral 374 policies, practices or procedures which may develop from these guidelines create either an express or implied employment contract.” (Emphasis added.) ¶ 30 Dunlap concedes that the HRPM does not create an express or implied contract between herself and Edison. Nevertheless, Dunlap’s entire claim for payment for unused vacation necessarily requires that the vacation provisions of the HRPM be enforced as contractual obligations against Edison. As we stated in Shepard v. Griffin Servs., Inc., Montgomery App. No. 19032, 2002-Ohio-2283, 2002 WL 940110: ¶ 31 “[T]he existence of an express or implied contract can overcome the employment at-will presumption. * * * In order to imply a contract, ‘[t]here must be specific evidence to show that the parties mutually assented to something other than at-will employment.’ [Reasoner v. Bill Woeste Chevrolet, Inc. (1999), 134 Ohio App.3d 196, 200, 730 N.E.2d 992.] Specifically, employee handbooks, company policy, and oral representations under some circumstances may contain such evidence. * * * ¶ 32 “We note, however, that many of these documents may contain disclaimers, which require the employee to acknowledge that the document does not create an employment contract. These disclaimers negate any inference of contractual obligations between the parties. * * * Instead, the handbook then becomes ‘merely a unilateral statement of rules and policy which creates no obligations and rights. Tohline v. Cent. Trust Co., N.A. (1988), 48 Ohio App.3d 280, 282, 549 N.E.2d 1223.’ ” (Emphasis added.) ¶ 33 In light of our prior holding in Shepard, the disclaimer provisions contained in Policies 101 and 102 of the HRPM “negate any inference of contractual obligations between the parties.” Clearly, the HRPM is meant to be nothing more than a unilateral statement of rules and policy that creates no obligations and rights. Dunlap has failed to establish any basis upon which Policy 202 of the HRPM could be interpreted as creating a contractual obligation for Edison to compensate her for any and all accrued but unused vacation time. Thus, the trial court did not err when it ordered judgment in favor of Edison. ¶ 34 Dunlap’s sole assignment of error is overruled. Ill ¶ 35 Dunlap’s sole assignment of error having been overruled, the judgment of the trial court is affirmed. Judgment affirmed. 375 Grady, J., concurs. Fain, J., dissents.