The opinion
[Cite as Ney v. May Eng. Co., L.L.C., 2025-Ohio-5081.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
JEFF P. NEY,
Plaintiff-Appellant,
v.
MAY ENGINEERING COMPANY LLC et al.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 25 BE 0018
Civil Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 24 CV 159
BEFORE:
Carol Ann Robb, Mark A. Hanni, Katelyn Dickey, Judges.
JUDGMENT:
Affirmed.
Jeff P. Ney, pro se and
Atty. Scott H. DeHart, Atty. Kenneth J. Hurley, Zashin & Rich Co., L.P.A., for Defendants-
Appellees.
Dated: November 6, 2025
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Robb, P.J.
{¶1} Appellant, Jeff P. Ney, appeals the April 9, 2025 judgment granting
Appellee, May Engineering Company, et al. summary judgment. For the following
reasons, we affirm.
Statement of the Case
{¶2} Ney filed his complaint in June of 2024 against May Engineering Company,
LLC and Bryan David May (collectively May). Ney generally claims he was wrongfully
terminated from his employment for an on-the-job verbal altercation allegedly involving
threats of violence. Ney admitted the verbal altercation occurred but denied he made any
threats of physical violence. Ney contends the company did not follow its disciplinary
policy prior to his discharge. (June 21, 2024 Complaint.)
{¶3} Ney asserted five claims for relief stemming from his termination from May
Engineering Company. His first claim alleges breach of an oral contract for employment.
Ney asserts he had an oral employment agreement that was modified by May’s
modification of its company policy. Ney contends he was wrongfully discharged since
May did not follow its disciplinary policy and May lacked just cause to fire him since he
denies making threats of violence. (June 21, 2024 Complaint.)
{¶4} Ney’s second claim for relief alleges a claim for promissory estoppel. He
contends he relied on the company policy to his detriment, which was not followed prior
to his discharge. (June 21, 2024 Complaint.)
{¶5} For his third count, Ney alleges he was wrongfully discharged in violation of
public policy. He contends he was overseeing a public water tank project in Bridgeport,
and he was terminated for raising concerns about the cost and quality of the work. Ney
claims his discharge violated the public policy in favor of public works projects, which are
funded by the state, from being overseen. This allegation does not cite or reference the
specific rule or provisions allegedly violated. (June 21, 2024 Complaint.)
{¶6} Ney’s fourth claim for relief asserts he was defamed. Ney alleges May
asserted in unemployment proceedings that Ney quit. Ney claims this false statement
was made to one or more people at the Ohio Department of Job and Family Services,
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and May later stated Ney was terminated for violating company policy. Ney claims his
reputation was injured as a result. (June 21, 2024 Complaint.)
{¶7} Ney’s final claim asserts the company is responsible for May’s personal
conduct via the doctrine of respondeat superior. Attached to Ney’s complaint as Exhibit
A is a copy of two pages of the company’s disciplinary policy. Attached as Exhibit B is a
copy of a text message Ney received from May terminating his employment. Attached as
Exhibit C is a copy of two pages of filings made in Ney’s unemployment compensation
proceedings. (June 21, 2024 Complaint.)
{¶8} May filed an answer and a motion for judgment on the pleadings on the
same date. May’s answer asserts Ney was an at-will employee, and he was terminated.
It denies the remainder of Ney’s claims. As exhibits to its answer, May attached text
exchanges with Ney and a termination letter addressed to Ney. (August 14, 2024
Answer.)
{¶9} May’s motion for judgment on the pleadings generally urged the court to
dismiss the complaint in its entirety since Ney was an at-will employee who threatened a
company client with physical harm. It also addressed each of the five claims on the
merits. (August 14, 2024 Motion.)
{¶10} Ney opposed the motion, and May filed a reply in support. The trial court
granted the motion in part and granted May judgment on Ney’s claim for defamation,
which was based on May’s statement made during an ODJFS proceeding, which was
privileged. The court overruled the motion on the remaining four claims for relief.
(September 12, 2024 Judgment.)
{¶11} The court set the case for trial and issued discovery and dispositive motion
deadlines. The parties exchanged discovery and took depositions.
{¶12} Ney moved to amend and/or supplement his complaint with new allegations
in support of his defamation claim, which had been dismissed, based on statements made
during discovery. May opposed. The trial court granted Ney leave to amend his
complaint.
{¶13} Ney filed his first amended complaint in January of 2025 with the new
defamation allegations. Ney claimed May “falsely stated that Plaintiff engaged in a verbal,
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almost physical, altercation with a client of Company.” (January 17, 2025 Amended
Complaint.) May filed an answer to the amended complaint.
{¶14} On February 21, 2025, May filed a motion for summary judgment, the
affidavit of Bryan David May, and the deposition testimony transcripts of Bryan David
May, Jeff Ney, and Travis Snodgrass.
{¶15} Bryan David May testified to the following in his deposition. He is the owner
and operator of May Engineering Company. He employs three professional engineers
plus engineering interns. When May hired Ney, the company discipline policy was “in its
infancy.” He does not recall whether he advised Ney about it. May’s offer of employment
to Ney was verbal. Ney was working toward his professional engineering license during
his employment.
{¶16} May said Ney had a good work ethic and paid attention to detail, but felt that
Ney struggled with written and verbal communication with others. May did not maintain
personnel files regarding his employees’ performance or behavior.
{¶17} May recalls one incident involving Ney during which another employee,
Hoover, was near tears. The other employee stated he could not work with Ney any
longer. After some investigation, May learned Hoover was not “pulling his weight” on a
particular job. Thus, Ney “called him out on it and called him out on some other things.”
(May Depo. Tr. 19-21.)
{¶18} May “counseled” Ney and warned that there should be no more outbursts
and that May was in charge of discipline and employee issues. May never terminated an
employee until Ney. The day May attempted to fire Ney, May tried to give Ney a
termination letter and his last paycheck. May recalled that Ney “flung it back at me and
said ‘I don’t need this, I quit.’” (May Depo. Tr. 21-22.) The termination letter states Ney
was being fired for “unprofessional conduct toward a client.” (May Depo. Tr. 22.)
{¶19} May explained Ney was terminated based on a series of events, which
included screaming at Hoover. Further, May knew Ney had been previously terminated
from a different employer. May also had to have a conversation with Ney upon the
issuance of the company policy because Ney was making “snarky backhanded comments
all day after receiving the manual.” (May Depo. Tr. 34.)
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{¶20} The company disciplinary policy was updated in January of 2022 and was
emailed to all May employees. When asked if employees complained about the policy,
May said Ney complained about the “structured work hours.” He complained every week
about the 8 a.m. to 5 p.m. work policy. Ney said he wanted to work at a larger firm so he
would not have to be “locked in” an office all day.
{¶21} May testified that the company policy was modified twice during Ney’s
employment. May said the disciplinary policy allows the company to skip or combine
disciplinary steps at its discretion. The company adopted its policy to become eligible for
certain contracts. Certain employment policies are required to compete with bigger,
national firms.
{¶22} The incident that lead to Ney’s termination occurred at a tank site. May
explained that Ney made “such a mockery at that tank site that he was endangering my
ability to service that client.” The individual with whom Ney was arguing, Snodgrass, is
not only a village employee, but also the street superintendent, the code enforcer, and
the sanitary superintendent. May said Snodgrass “is my client.” (May Depo. Tr. 32-34.)
Knowing Ney’s “track record,” May said he had to fire him. May met with the mayor and
Snodgrass after the incident. Snodgrass outlined Ney’s overreaction to a partially open
valve and how it escalated into what nearly became a physical altercation. Snodgrass
told May that Ney was screaming profanities and kicking rocks. In light of these facts,
May said this is not someone he wants to employ. (May Depo. Tr. 33-34.)
{¶23} Travis Snodgrass testified in his deposition that he is the street and water
superintendent for Bridgeport. He reports to the village mayor daily. Snodgrass was
present for the Lombardy Heights project and did not notice anything being done
improperly. (Snodgrass Depo. Tr.)
{¶24} Snodgrass was at the job site almost daily to ensure the contractors were
working. He denies that Ney ever raised any design problems, safety issues, or cost
saving measures to him. Snodgrass denies being annoyed by questions Ney asked at
the jobsite. Before the altercation occurred, Snodgrass sent Ney a text thanking him for
the help on the tank project. Snodgrass denies knowing Ney before he worked for May
on this job. (Snodgrass Depo. Tr.)
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{¶25} Snodgrass recalled the verbal altercation during which there was yelling that
included swearing. He does not remember the actual content of the altercation, but he
remembered asking Ney to go for a walk. Snodgrass thought it would deescalate the
situation. (Snodgrass Depo. Tr.)
{¶26} Snodgrass later spoke with May and alerted him that Ney was irate,
swearing, and yelling, and that Snodgrass asked him to leave the jobsite. During the
altercation, Ney “rolled up his sleeves and asked if we were going to settle this like men.”
When Snodgrass asked him to go for a walk to deescalate the matter, Snodgrass
explained how Ney assumed the two were “going to go settle this in the yard or
something.”
{¶27} Snodgrass said Ney’s statements and body posture were very intimidating.
He said Ney was aggressive. He appeared “[d]eranged. . . . his pupils were dilated. . . .
[Ney] looked like he was going to do harm.” (Snodgrass Depo. Tr. 71.)
{¶28} Snodgrass confirmed that Ney neither lunged at him nor touched him.
Snodgrass reported the incident to Bryan May and the mayor. Snodgrass recalls telling
Ney it would be best for him to leave, meaning to go and calm down. Snodgrass does
not remember the exact words used by Ney, but Snodgrass testified he was in fear of his
physical safety at the time. (Snodgrass Depo. Tr. 70- 72, 82.)
{¶29} Jeff Ney testified at his deposition that he has his professional engineer in-
training license. He has a degree in civil engineering. He previously worked for CT
Consultants while Bryan David May worked there as well. He acknowledged he was
terminated from his employment with CT, but denied knowing the reason.
{¶30} Ney was subsequently hired by May and paid an hourly rate. Ney was not
provided an offer letter or a written employment contract. After working for May for some
time, May employees received an email from May explaining his vision for the company
for the next few years, including training opportunities for employees. (Ney Depo. Tr. 28-
29.)
{¶31} After May updated its employment policy, Ney agreed he complained about
the policy in front of coworkers. Ney believes May heard him through the vents. Ney said
the policy included less flexible work hours and additional rules. Ney recalled May “came
storming up the stairs when I was saying that I didn’t agree with the new policy, and he
Case No. 25 BE 0018
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told me that I was making him mad.” May personally advised Ney that “if [he] followed
the policy, [May] would provide employment.” (Ney Depo. Tr. 55.)
{¶32} When asked about promises of continued employment, Ney repeatedly
referenced the conversation during which May told him that if he abided by the policy,
Ney would have a job. Ney also suggested he was somewhat promised continued
employment via a company-wide email talking about the two-to-five-year plan for the
company’s future. (Ney Depo. Tr. 59-61.)
{¶33} When asked if Ney advised May that he felt the company was violating the
law as it pertains to the Bridgeport project, Ney responded that he was not aware of
violations during his employment. Ney claims he discovered certain violations after his
termination. (Ney Depo. Tr. 65.) Ney explained his concerns with the project during his
testimony. He explained his beliefs about things being illegal, but his testimony in this
regard did not identify actual rules or codes that were allegedly violated. (Ney Depo. Tr.
75-85.)
{¶34} Ney says he texted Snodgrass the night before the altercation to find out if
the tank was drained. Ney did not receive a response. On the morning of the altercation,
Ney said Snodgrass arrived at the site and said the tank was drained. However, Ney said
he made this statement despite the fact that the tank was visibly still draining. After
answering a few of Ney’s questions, Snodgrass became frustrated and told Ney he should
“go back to work in the fucking coal mine.” Ney said this derogatory statement toward
him initiated the verbal altercation. Ney agrees he swore during the exchange. Ney was
terminated as a result of the dispute. (Ney Depo. Tr.)
{¶35} May moved for summary judgment and raised the following arguments.
{¶36} Breach of Contract. May urged the trial court to find that Ney’s breach of
contract claim fails on the merits since there was no employment contract. May argued
Ney was an at-will employee. May also argued there was no express or implied contract
of employment, and the company’s issuance of employment and disciplinary policy do
not create a contract of employment. (February 21, 2025 Summary Judgment Motion.)
{¶37} Promissory Estoppel. Similarly, May asserted that Ney’s claimed reliance
on the disciplinary policy fails to establish that specific promises of job security were made
to Ney. May contended that general references to the future do not overcome the strong
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presumption of at-will employment. May also pointed out that Ney failed to establish
detrimental reliance. (February 21, 2025 Summary Judgment Motion.)
{¶38} Public Policy Wrongful Discharge. Here, May urged the court to find that
Ney failed to cite or reference the public policy allegedly violated. Further, May argued
that Ney failed to allege he was terminated after or as a result of identifying a violation of
a rule or policy. (February 21, 2025 Summary Judgment Motion.)
{¶39} Defamation. May urged the court to find that Ney’s defamation claim failed
as a matter of law because the alleged defamatory statement was true, which is a
defense. Alternatively, May asserted his alleged defamatory statement was also an
opinion. By stating the altercation “was almost physical,” May claimed that is a matter of
opinion, not verifiable as true or false. Further, May pointed out his statements were
protected by qualified privilege as business communications. He claimed he had a
legitimate business reason to notify his employees that Ney was no longer working on the
project. Last, May urged the trial court to find the defamation claim was time barred since
the action was filed after the one-year statute of limitations. (February 21, 2025 Summary
Judgment Motion.)
{¶40} Respondeat Superior. Here, May argued that Ney did not assert an
additional or independent claim. Instead, Ney sought to hold the company responsible
for the conduct or actions of its owner.
{¶41} May states in his affidavit in support of the motion that he told a few people
who work for him about the Ney altercation, which almost turned into a physical altercation
with a client. The reason May told his employees about the dispute was to notify them
that Ney was no longer “on the job,” so they would no longer contact Ney about the
project. (February 21, 2025 Summary Judgment Motion.)
{¶42} Ney opposed May’s motion for summary judgment and argued he had an
oral employment agreement based on the fact that he worked and got paid an hourly rate
in exchange. However, Ney also acknowledges he was an at-will employee, but he
argued the disciplinary policy modified the terms of his employment and created an
expectation of continued employment. Ney claimed that when May did not follow its
policy, there was a breach of the agreement. Ney also claimed to have relied on the
modified employment contract to his detriment. He refers to his testimony in which he
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recalled how May said Ney could maintain his employment as long as Ney complied with
the company policy. (March 14, 2025 Opposition.)
{¶43} Ney also argued that May discharged him in violation of public policy. Ney
contends May violated the law by not “properly overseeing” the Lombardy Heights
Project, including a lack of a permit, the design of a drainage pipe, payment for brush
barriers, lack of receipts, and work allegedly not performed to specifications. He claims
these allegations presented a question of fact as to why he was terminated.
{¶44} Additionally, Ney urged the trial court to strike or disregard Snodgrass’
testimony as unreliable and contradictory. Ney argued May’s belief that the Snodgrass
statement was true is not a defense. Instead, Ney argued that only actual truth is a
defense. Ney claimed May defamed him based on his reliance on statements about the
altercation with Snodgrass, which were made by Snodgrass.
{¶45} Ney’s original attorney withdrew as counsel of record, and a new attorney
entered his notice of appearance on Ney’s behalf. (March 30, 2025 Notice of
Substitution.)
{¶46} May filed a reply in support of his motion for summary judgment. May
argued Ney’s implied contract argument lacked merit since he failed to identify the alleged
specifics of the job/agreement. May also argued Ney failed to meet the heavy burden of
proof and that any alleged oral promises of continued employment did not alter the at-will
nature of his employment.
{¶47} May further relied on the fact that the company unilaterally changed the
employment policy as demonstrating Ney had no ability to alter it. Thus, Ney could not
demonstrate the policy was a result of mutual assent. And because an employer’s
compliance with its disciplinary policy is only relevant if it was mutually agreed upon,
May’s failure to adhere was of no consequence. To the contrary, May argued
employment policies are not contractual agreements in Ohio. Additionally, May urged the
trial court to conclude that the vague statement allegedly made by May, reassuring Ney
about his continued employment, is unenforceable as an employment agreement. (March
20, 2025 Reply.)
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{¶48} The trial court issued its seven-page decision and granted summary
judgment in favor of May on all counts. (April 9, 2025 Judgment.) Ney appeals and raises
ten assignments of error in his pro se brief.
Summary Judgment Standard of Review
{¶49} We review awards of summary judgment de novo. Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civil Rule 56(C), summary judgment is
proper if:
(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).
{¶50} The party moving for summary judgment bears the initial burden of
demonstrating the absence of genuine issues of material facts concerning the essential
elements of the non-moving party's case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).
The moving party must support the motion by pointing to some evidence in the record of
the type listed in Civil Rule 56(C). Id. at 292-293. If the moving party satisfies its burden,
the non-moving party has the reciprocal burden to demonstrate that a genuine issue of
fact remains for trial. Id. at 293. The non-moving party may not rest on allegations or
denials in her pleadings, but must point to or submit evidence of the type specified in Civil
Rule 56(C). Id.; Civ.R. 56(E).
{¶51} “Trial courts should award summary judgment with caution, being careful to
resolve doubts and construe evidence in favor of the nonmoving party.” Welco Industries,
Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993). Doubts are to be resolved in favor
of the non-movant. Leibreich v. A.J. Refrig., Inc., 67 Ohio St.3d 266, 269 (1993). A court
“may not weigh the proof or choose among reasonable inferences.” Dupler v. Mansfield
Journal Co., 64 Ohio St.2d 116, 121 (1980).
{¶52} Before reaching the merits of Ney’s arguments, we note this court is a court
of review, and as such, we are limited to the arguments raised and facts in evidence in
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the filings in the trial court’s record when it ruled on the summary judgment motion. App.R.
12(A)(1)(b); App.R. 9(A)(1); Christe v. GMS Mgt. Co., 124 Ohio App.3d 84, 88 (1997),
quoting Am. Energy Servs., Inc. v. Lekan, 75 Ohio App.3d 205, 208 (1992).
{¶53} Furthermore, App.R. 16(A)(7) requires an appellant’s brief to include “[a]n
argument containing the contentions of the appellant with respect to each assignment of
error presented for review and the reasons in support of the contentions, with citations to
the authorities, statutes, and parts of the record on which appellant relies.”
{¶54} The 11-page “Argument with Contentions” section in Ney’s brief is written in
the first person and appears to be his personal narrative regarding the underlying facts.
A statement in this regard was not filed in the trial court, and this section of his brief lacks
citation to the record. To the extent Ney alleges facts and arguments in his brief that are
not in the record, we do not consider them. See Matter of Estate of McDaniel, 2023-Ohio-
1065, (7th Dist.).
Assignments of Error
{¶55} For ease of analysis we address Ney’s arguments collectively and out of
order.
{¶56} His first, fourth, fifth, and sixth assignments raise arguments about the May
company policy creating an implied employment agreement. These assignments of error
state:
“[1.] The Court erred in taking the Defendants word that a company policy existed
before one was emailed to May Engineering LLC employees on January 10, 2023, page
one of the April 9, 2025, Motion for Summary Judgment Decision, third paragraph, under
‘The facts in this matter are as follows:’, No.3.”
“[4.] The Court erred in the failure to include that there are exceptions to the ‘at-
will’ law, page three of the April 9, 2025, Motion for Summary Judgement Decision, third
paragraph.”
“[5.] The Court erred in the failure to recognize that the Plaintiff's employment
termination was unlawful and violated the requirement pertaining to being terminable
at-will by either party for any reason not contrary to law, page three of the April 9, 2025,
Motion for Summary Judgement Decision, fourth paragraph.”
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“[6.] The Court erred in stating the Plaintiff relied only on the Company discipline
policy to prove implied contract, neglecting to mention that there was a meeting of the
minds, page four of the April 9, 2025, Motion for Summary Judgement Decision, eighth
paragraph.”
{¶57} Ney contends his at-will employment with May became contractual when
May adopted its employment policy in January of 2023 after his 2022 hire date.
{¶58} In his first assigned error, Ney alleges there is a genuine issue of material
fact as to the existence of an implied contract. He claims that because he complained
about the company policy changes after the issuance of the policy, and since May
subsequently assured him that he will have employment if he complies with the new rules,
these facts demonstrate there was negotiation and a “meeting of the minds.” Ney’s
argument in this regard does not contain recitation of legal authority or analysis.
{¶59} In his fourth assigned error, Ney again argues the company policy was an
implied contract. He asserts there is no end date in the policy, so the employment
agreement was infinite. He claims May added constraints to his at-will employment
thereby terminating the at-will aspect of his employment. He cites to Wright v. Honda of
Am. Mfg., Inc., 73 Ohio St.3d 571, 575 (1995), in support.
{¶60} In his fifth assignment of error, Ney argues May was going to terminate him,
but then the two discussed certain terms of his employment. Ney directs us to page 38
of May’s deposition testimony. He claims May’s testimony shows Ney had an implied
contract of employment since he was angered in response to the surprise email
containing policy changes and May assured him thereafter that Ney would continue to be
employed if he complied with the new terms. Ney claims May breached the implied
contract when the company did not follow its disciplinary policy.
{¶61} May testified to the following during his deposition:
Q. Earlier today we also heard a little about – I believe it was January
2023 conversation with you and Jeff going outside individually. Can you
recall that situation?
A. Yeah. I remember it very well, because that was – I think that
was the angriest any person ever made me for probably a decade. Jeff was
nearly fired that day, although I never said that to him.
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Jeff made snarky backhanded comments all day after receiving the
manual. Then he made a comment, as I was coming up the steps, about
another coworker. At that moment, both of our tempers were flared and we
took the issue outside. We tried to work through it in a man-to-man human
nonviolent way of how we were going to kind of resolve what he wanted and
what I wanted from my firm.
It ultimately came down to – which I think I already said this once—I
remember the solution was that if you want flexibility, you just got to ask.
I didn’t remember what Jeff’s testimony was that if you meet the
document – the letter of the law, you can still work here. I don’t remember
that.
(May Deposition Tr. 38-39.)
{¶62} In his sixth assigned error, Ney contends the parties had an employment
agreement based on the exchange between May and Ney after Ney complained about
the issuance of the updated company policy. Ney claims there was a meeting of the
minds and again refers to page 38 of May’s deposition testimony. Ney also cites
Staschiak v. Certified Logistics, Inc., 2016·Ohio-897, ¶ 22 (11th Dist.), in support of this
argument.
{¶63} The trial court found there was no express or implied contract of
employment and that Ney was an at-will employee.
{¶64} Ohio is an at-will employment state. “Unless otherwise agreed, either party
to an oral employment-at-will agreement may terminate the employment relationship for
any reason which is not contrary to law.” Mers v. Dispatch Printing Co., 19 Ohio St.3d
100, 103 (1985). In Mers, the court recognized there are exceptions to the doctrine. One
exception to the employment-at-will doctrine is where the facts and circumstances of the
employment relationship create an implied contract altering the at-will nature of the
employment. Id.
{¶65} Employer handbooks and policy manuals do not generally alter at-will
employment unless the parties agree otherwise. Pastella v. Rite Aid of Ohio, Inc., 1995
WL 763304, *5 (7th Dist. Dec. 21, 1995). However, at-will employment may be altered
into one governed via an implied contract when an employer's right to terminate an
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employee is limited by an employee handbook, company policy, and/or oral
representations that create implied or express contractual terms altering the at-will nature
of the employment. Rigby v. Fallsway Equip. Co., 2002-Ohio-6120, ¶ 13 (9th Dist.), citing
Mers. Thus, an employer handbook and company policy are individual factors to consider
in determining whether at-will employment has changed into that of employment
governed by an implied contract. Id.
{¶66} Employee handbooks or policy manuals could be construed as defining the
terms and conditions of an at-will employment relationship if the employer and employee
manifest an intent to be bound by the terms. This requires a mutual showing of an intent
to be bound by the writing. Sexton v. Oak Ridge Treatment Ctr. Acquisition Corp., 2006-
Ohio-3852, ¶ 14 (4th Dist.). The parties must have a distinct and common intention that
has been communicated to one another. Cohen & Co. v. Messina, 24 Ohio App.3d 22,
24 (1985). Without a manifestation of mutual assent to be bound by the handbook or
policy, the writing is a unilateral statement of rules and policies. Napier v. Centerville City
Schools, 2004-Ohio-3089, ¶ 15 (2d Dist.); Henning v. Marriott Hotel & Resorts, Inc., 1995
WL 316174, *3 (2d Dist. May 25, 1995).
{¶67} The May Engineering Company’s Health, Safety, Security, and
Environmental Policy revised in January of 2023 includes a policy governing office hours,
remote work, and flex time. It states in part that every employee is to work an eight-hour
work day in person and as a team. The policy offers core hours of 8 a.m. to 5 p.m. and
early- and late-riser options. This policy states that except for inclement weather, all
remote work must be discussed and approved in advance. (Ney Depo. Tr. Exhibit A.)
{¶68} The company discipline policy is set forth on page 11. It generally provides
for the issuance of a warning and counseling first. And if this process does not resolve a
disciplinary issue, the policy states that a formal reprimand will be issued. If this step
does not sufficiently address the issue, the policy states the employer will discuss
suspension and termination. The discipline policy states an employee will have an
opportunity to dispute information if they believe they were wrongly accused. (Ney Depo.
Tr. Exhibit A.)
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{¶69} The cover page of the company policy states it was first issued in December
of 2021. It was revised in January of 2022, and revised again in January of 2023. (Ney
Depo. Tr. Exhibit A.)
{¶70} The trial court concluded that Ney was an at-will employee with no oral or
written contract for continued employment. The trial court found there were no specific,
clear, and/or unambiguous representations of continued employment made by May.
Additionally, the trial court found the company’s disciplinary policy did not create an
implied contract. The trial court emphasized that May “unilaterally modified the Policy
without any input from the Defendant.” (April 9, 2025 Judgment.)
{¶71} The two cases Ney refers to in support of these arguments on appeal are
Wright v. Honda of Am. Mfg., Inc., 73 Ohio St.3d 571, 575 (1995), and Staschiak v.
Certified Logistics, 2016-Ohio-897, ¶ 4 (11th Dist.).
{¶72} In Staschiak v. Certified Logistics, the issue before the court of appeals was
whether terms in an employee handbook created an implied contract. The issue was not
whether the plaintiff was wrongfully discharged. Instead, the issue was whether the pay
increases and health insurance benefits detailed in the handbook were enforceable. The
plaintiff filed suit for fraud and breach of contract based on the company’s failure to
compensate consistent with the statements in its handbook on these issues. The
Staschiak court found a genuine issue of fact existed as to whether a contract existed. It
distinguished cases in which the handbook had an express disclaimer indicating it was
not an enforceable agreement but instead that it only contained guidelines. Id. at ¶ 26-
31.
{¶73} Since Staschiak involved the enforcement of pay increases and benefits
and not an employee’s termination in violation of a policy, it is not generally applicable
here.
{¶74} In Wright v. Honda, Wright was hired in violation of an existing company
policy that prohibited nepotism. Allegedly unaware of the policy at the time of hire, Wright
sought the advice of a friend in management who assured Wright she should “not worry.”
She was employed for 7 years with high performance praises and other accolades before
Wright was told she was in violation of the anti-nepotism policy.
Case No. 25 BE 0018
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{¶75} Notwithstanding, Wright was later advised she could return to work. Her
supervisor told her that it was “over,” which Wright understood to mean the nepotism
issue was resolved. The company, however, said after the fact that it had not yet made
a final determination as to this policy violation. More than a month later, Wright was
terminated for violating the policy.
{¶76} The Supreme Court of Ohio relied in part on the company handbooks,
coupled with Wright’s progress reports and promotion letters as showing that Wright’s
good attendance and quality of work were linked to job security. The court also relied on
the assurances by supervisors that she was fine and not subject to termination for this
violation. The court found a genuine issue of fact existed, explaining: “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.” Id. at 577.
{¶77} Employment or disciplinary policies alone generally do not create
employment contracts. McNeil v. Medcentral Health Sys., 2009-Ohio-3389, ¶ 23 (5th
Dist.). The parties must have communicated distinct and common intentions to be bound
and to consider such policy as contractual. Otherwise, employee handbooks constitute
a unilateral statement of company rules. Stembridge v. Summit Academy Mgt., 2006-
Ohio-4076, ¶ 29 (9th Dist.).
{¶78} “[M]erely providing employees with some direction as to the likely sanction
for various types of malfeasance does not operate to bind the employer to its employee
in an express or implied contract.” (Citation omitted.) Id. quoting Ridgill v. Little Forest
Medical Center, 2000 WL 840494 (June 28, 2000).
{¶79} The burden is on the party asserting the existence of an employment
contract to demonstrate the existence of each element necessary to the formation of a
contract including, “the exchange of bilateral promises, consideration, and mutual
assent.” Fennessey v. Mt. Carmel Health Sys., Inc., 2009-Ohio-3750, ¶ 18 (10th Dist.),
citing Sagonowsky v. The Andersons, Inc., 2005-Ohio-326, ¶ 14 (6th Dist.); accord
McMillen v. Trumbull Metropolitan Hous. Auth., 2007-Ohio-3713, ¶ 39 (11th Dist.).
{¶80} Contrary to Ney’s arguments, the evidence shows the May company policy
existed before Ney was hired. It was later revised in January of 2023 without input from
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Ney. Ney testified he did not know the policy existed before he was hired. The email
disseminating the new version of the policy highlighted the changes, and Ney
acknowledged receipt of this email. He and May never discussed the company’s
discipline policy during his employment.
{¶81} As for the discipline policy, a plain reading of the language shows it does
not contain a promise of continued employment. The policy issued via email states it was
updating the prior version. The cover page of the company policy states it was first issued
in December of 2021. It was revised in January of 2022, and revised again in January of
2023. (Ney Depo. Tr. Exhibit A.)
{¶82} Although the policy identifies a three-tiered disciplinary policy, the policy
does not state all employment issues must go through this process. The policy does not
suggest or preclude the fact that certain issues may be immediately terminable and not
subject to the procedure. (Ney Depo. Tr. Exhibit A.)
{¶83} Upon receiving the updated policy, the evidence shows Ney voiced
concerns and objections to the changes regarding core work hours and remote work
policies. In response, May told him that if he wanted flexibility, he had to ask for it. There
is nothing in evidence showing Ney made a particular request for flexible work hours or
remote work or that said requests were granted or denied. There is likewise no evidence
tending to show that May offered Ney infinite employment if Ney complied with the
specifics of the company policy. Ney’s objections to the policy updates did not concern
the disciplinary policy.
{¶84} To the extent that May, as the owner of the company, allegedly advised Ney
that as long as he complied with the company’s updated policy, Ney would continue to be
employed, we agree that a statement in this regard is too general to be enforceable. The
communication lacks specific promises of job security to rise to the level of an implied
contract or promissory estoppel. See Tarantine v. Loral Corp., 1990 WL 163877, *4 (9th
Dist. Oct. 24, 1990) (“To establish a claim based on promissory estoppel, the plaintiff must
demonstrate that there was a promise clear and unambiguous in its terms.”) Further, the
concerns Ney was raising at this juncture were his dissatisfaction with the company’s
updated policy on remote work and core work hours—Ney did not challenge or raise
Case No. 25 BE 0018
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concerns about the disciplinary policy such that there was a “meeting of the minds” on
this issue.
{¶85} And unlike the facts in Wright, Ney does not direct us to his job accolades
or excellent performance reviews. May never advised Ney he could maintain his job after
the tank altercation. To the contrary, May testified that Ney’s employment was previously
in jeopardy based on Ney’s behavior after receiving the updated employment policy. May
also noted he knew Ney had previously been terminated from another job, in addition to
the incident during which Ney was screaming at a coworker. May testified that Ney was
counseled about this incident.
{¶86} Moreover, the assurances of job security that Ney directs us to were in
response to his objections to the company’s job flexibility and remote work policies. May
allegedly told Ney that if he wanted flexibility, he simply had to ask. There is no evidence
the two discussed infinite employment in exchange for Ney’s compliance with the
company’s policy updates.
{¶87} Our review of the evidence fails to reveal any statements which could
reasonably be construed as representations that Ney was anything other than an at-will
employee. In light of the foregoing, Ney failed to present evidence demonstrating an
implied employment contract existed, and as such, summary judgment was appropriate.
Thus, Ney’s first, fourth, fifth and sixth assignments lack merit.
{¶88} Ney’s second, seventh, eighth, and tenth assigned errors concern his claim
he was discharged for raising public policy violations. These assigned errors assert:
“[2.] The Court erred in the failure to include that the Plaintiff's ‘dispute’ or
‘encounter’ was related to ‘competent oversight’ as required by Ohio public policy, page
one of the April 9, 2025, Motion for Summary Judgement Decision, third paragraph, under
‘The facts in this matter are as follows:’ No. 4.”
“[7.] The Court erred in rationalizing that the Defendants could not terminate my
employment for things that I did not know or express to them. The Court's/Judge Chris
Berhalter's public policy violation causation failed requirement explanation is flawed. The
wrongdoings are applicable to the OAC Rules cited, page five of the April 9, 2025, Motion
for Summary Judgement Decision, fifth/last paragraph.”
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“[8.] The Court erred in rationalizing that there was no overriding element, stating
that Plaintiff was terminated for a dispute, page six of the April 9, 2025, Motion for
Summary Judgment Decision, first paragraph.”
“[10.] The Court erred in stating reasonable minds can only reach one conclusion,
page seven of the April 9, 2025, Motion for Summary Judgement Decision, third
paragraph.”
{¶89} Each of his four assignments of error on this topic fail to fully develop
arguments on appeal. Nevertheless, in the interest of justice, we attempt to ascertain
and address his arguments.
{¶90} Ney’s third claim for relief in his amended complaint alleges one of his job
duties was “oversight of a public water tank project” and May’s discharge of Ney
jeopardized the public policy that “public works projects funded by the State be properly
overseen.” Ney further alleged his discharge was in part “to cover up legitimate concerns
raised by Plaintiff related to the cost and quality of the work[,]” and May lacked an
overriding business justification for his discharge. (January 17, 2025 Amended
Complaint.) Thus, to the extent Ney raises additional allegations, we disregard them.
App.R. 12(A)(1)(b).
{¶91} Ney’s second assigned error asserts he was terminated while functioning
as “competent oversight” as required under OAC Rule 164-1-19, governing emergency
projects. He claims the tank was not drained as required. Ney claims Snodgrass was
not “competent oversight;” project funding was misused; and they failed to secure proper
permits regarding tank cleaning and water pollution.
{¶92} In his seventh assignment of error, Ney alleges he informed May of “cost
overruns” and questioned how the contract was advertised and bid “as law requires.” He
claims he found “Ohio Public Works Commission documents which proved wrongdoing.”
Ney references OAC Rule 164-1-19 and Rule 164-1-21 and seems to allege the project
lacked “competent oversight” necessary to receive certain funds and the project was not
properly bid. He also avers there were cost overruns and the defendant was untruthful
with the OPWC.
{¶93} In his tenth assigned error, he contends reasonable minds can disagree and
that the “post-employment discoveries of the Plaintiff regarding the wrongdoing relates
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directly to the Plaintiff’s termination.” He again claims funds were misspent on the tank
project and the project was not bid as the law requires. He also restates there was a lack
of competent oversight and certain permits regarding tank cleaning and pollution were
not obtained.
{¶94} The tort of wrongful termination in violation of public policy, also known as
a Greeley claim, is an exception to the employment-at-will doctrine. House v. Iacovelli,
2020-Ohio-435 (2020). To establish the tort of wrongful discharge in violation of public
policy, one must show:
1. That a 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).
4. The employer lacked overriding legitimate business justification for the
dismissal (the overriding justification element).
(Emphasis sic.) (Citations omitted.) Collins v. Rizkana, 73 Ohio St.3d 65, 69-70 (1995).
The clarity and jeopardy elements are questions of law to be determined by the court. Id.
at 70. The causation and overriding-justification elements are questions for the factfinder.
{¶95} On this count, the trial court held:
Plaintiff argues that the Defendants violated Ohio law while serving
as engineers for the Lombardy Heights Water Tower Project. Plaintiff
further alleges in his answer Defendants would be displeased with any
finding of fault. Therefore, according to the Plaintiff's complaint, the
Defendants terminated his employment to cover up legitimate concerns
raised by the Plaintiff.
First, applying the clarity element, Plaintiff cites Four Administrative
Codes, OAC Ann. 164-1-19 (Emergency Projects), OAC Ann. 164-1-23
(Project Cost overruns and underruns), OAC Ann. 164-1-24 (Project Audit
Case No. 25 BE 0018
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Requirements), and OAC Ann. 164-1-40 (Project Schedule). Therefore,
assuming all inferences in favor of Plaintiff, he has met the clarity element.
Second, the jeopardy element is applied to the four (4) administrative
codes cited by the Plaintiff. A review of every one of these Administrative
Code sections by the Court leaves the Court with no answer as to how the
Plaintiff believes these sections were violated. As an example, OAC Ann.
164-1-19 is titled Emergency Projects. It provides that the director will
review a request for funding of an emergency project and determine
whether it is an emergency and whether to fund it based on certain factors.
In this matter, Plaintiff was working for the Defendants on a project with the
Village of Bridgeport. Defendants did not approve funding for this project
nor determine if it was an emergency. The Director did. Thereby, there is
no evidence that OAC Ann. 164-1-19 could be violated by the Defendant's
termination. The remaining three administrative codes are similarly
inapplicable to any allegation in this matter. Therefore, the Plaintiff's
discharge cannot jeopardize these.
With this finding, the Court need not go any further. That aside,
continuing to do so does not improve the Plaintiff's position. In applying the
causation element, the Plaintiff raises a litany of problems with the project
in question that he claims to have discovered. Yet, these problems are not
applicable to the Administrative Codes he cited. Even if they were, the
overwhelming number of these issues he claims he discovered were
discovered by him after he was terminated by the Defendants. Thereby, he
never conveyed them to the Defendants while in their employment (Ney
Transcript Page 123, Line 10 to Page 126, Line 8). If the Plaintiff never
conveyed this information to the Defendants, how could the Defendants
discharge the Plaintiff based on it? The answer is they could not. The
causation element has clearly not been met.
Even the overriding element cannot be met. Plaintiff was terminated
by Defendant after an incident with Snodgrass. Whether it was, as Plaintiff
describes a simple verbal dispute or a verbal, almost, physical altercation
Case No. 25 BE 0018
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does not matter. The evidence clearly demonstrates Plaintiff's employment
was terminated due to this incident. Defendant May also added that there
were prior issues with the Plaintiff as well. (May transcript, Pages 19-23).
(April 9, 2025 Judgment.)
{¶96} The four Administrative Code sections cited by Ney in the trial court
proceedings are: OAC Ann. 164-1-19 (Emergency Projects), OAC Ann. 164-1-23 (Project
Cost overruns and underruns), OAC Ann. 164-1-24 (Project Audit Requirements), and
OAC Ann. 164-1-40 (Project Schedule).
{¶97} As the trial court found, Ney identified these provisions such that he met the
clarity element of identifying a clear public policy existed in the administrative code.
However, a review of Adm.Code 164-1-19 and the allegations herein do not show how
this provision was violated or Ney was terminated in contravention to it. This provision
governs funding for emergency projects.
{¶98} A review of Adm.Code 164-1-23, shows it dictates what the director of the
Ohio public works commission and the “project applicant” are directed to do when
addressing project overruns and underruns. “Project applicant” is defined as: “the
subdivision or group of subdivisions which submitted a request for financial assistance to
a district.” Adm.Code 164-1-01. Thus the project applicant is typically a local government
entity. Neither May nor Ney were the director or the project applicant such that we can
ascertain how this policy or provision was violated when Ney was terminated.
{¶99} The third section Ney referenced, Adm.Code 164-1-24 identifies project
audit requirements. It provides in part that project funds are subject to state fund audit
requirements. It also sets forth rules for project applicants to follow when dealing with
audit findings. It is not evident how this provision applies or how it was violated by Ney
or May as neither was the project applicant, director, or administrator.
{¶100} The final section Ney relied on was Adm.Code 164-1-40. This section
governs public works project schedules. It sets forth rules about when projects are to be
commenced. It also provides for extensions based on project delays. It is unclear how
Ney’s termination from his employment violated or even related to this section of the
administrative code.
Case No. 25 BE 0018
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{¶101} Our analysis begins and ends with the first two elements, i.e., 1. a clear
public policy existed and was manifested in a state or federal constitution, statute or
administrative regulation (the clarity element), and 2. that dismissing employees under
circumstances like those involved in the plaintiff's dismissal jeopardizes the public policy
(the jeopardy element).
{¶102} As the trial court found, Ney satisfied the clarity element by identifying
sections of the administrative code. However, consistent with the trial court’s findings,
we cannot ascertain how Ney’s dismissal from his employment by May jeopardized the
public policies set forth in the cited sections.
{¶103} The contentions in Ney’s complaint do not allege violations of any of the
sections of the Ohio Administrative Code that he cites. It is not our function to construct
arguments on appeal. Matter of Estate of McDaniel, 2023-Ohio-1065, ¶ 57-59 (7th Dist.).
{¶104} As the trial court found, there is no evidence showing how these Ohio
Administrative Code Sections were violated by May’s decision to terminate Ney.
Furthermore, Ney’s termination did not implicate any of the cited regulations or public
policy embodied in these sections. Thus, we end our analysis here and conclude that
Ney’s discharge did not “jeopardize” these provisions or public policies. Accordingly,
Ney’s second, seventh, eighth, and tenth assigned errors lack merit and are overruled.
{¶105} Ney’s third and ninth assignments of error arise from his claim for
defamation. These assigned errors assert:
“[3.] The Court erred in the failure to include that the Defendant Bryan May was
repeating unproven information that was defamatory to the Plaintiffs' character and
caused harm suffering, page one of the April 9, 2025, Motion for Summary Judgment
Decision, third paragraph, under ‘The facts in this matter are as follows:’, No. 7.”
“[9.] The Court erred in stating that the Defendant did not defame the Plaintiff. The
Defendant was telling people that the Plaintiff was challenging clients to fist fights; it was
like saying RAPE, page six of the April 9, 2025, Motion for Summary Judgement Decision,
second paragraph; Page 7, paragraph 1 and 2, as well.”
{¶106} Ney’s third assigned error asserts May lied to the Ohio Department of Job
and Family Services during the unemployment proceedings, to the Ohio Public Works
Committee, and to the Village of Bridgeport about Ney. Ney claims May repeated the
Case No. 25 BE 0018
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false story recited by Snodgrass about how he felt threatened. Ney asserts whether
Snodgrass was lying about the altercation “almost becoming violent” is a disputed fact
and a credibility determination for the trier of fact.
{¶107} To the extent Ney raises arguments concerning May’s statements made
to the ODJFS during unemployment proceedings, the trial court granted May’s motion for
judgment on the pleadings in part. It held Ney’s claim for defamation, based on May’s
statement made during an ODJFS proceeding, was privileged. (September 12, 2024
Judgment.) Ney has not appealed from this decision.
{¶108} Additionally, to the extent Ney raises further claims or arguments of
defamation not raised to the trial court, e.g., defamatory comments made to the Ohio
Public Works Committee and the Village of Bridgeport about Ney, we cannot consider
them. App.R. 12(A)(1)(b); Christe v. GMS Mgt. Co., 124 Ohio App.3d 84, 88 (9th Dist.
1997).
{¶109} Ney filed his first amended complaint in January of 2025 with a new
defamation allegation. Ney alleged May “falsely stated that Plaintiff engaged in a verbal,
almost physical, altercation with a client of Company.” (January 17, 2025 Amended
Complaint.) Thus, our review is limited to this allegation and arguments concerning it.
{¶110} Ney’s ninth assignment of error contends the court erred as a matter of
law by finding May’s statement to a small group of coworkers was privileged and subject
to qualified immunity.
{¶111} To establish a defamation claim, a plaintiff must prove:
(1) the defendant made a false and defamatory statement concerning
another; (2) the false statement was published without privilege to a third
person; (3) the plaintiff was injured; and (4) the defendant acted with the
required degree of fault that was defamatory per se or caused special harm
to the plaintiff.
Janiszewski v. Belmont Career Ctr., 2017-Ohio-855, ¶ 69 (7th Dist.), citing Anzevino v.
DePasquale, 2016-Ohio-883, ¶ 16 (7th Dist.).
{¶112} The trial court held that Ney made a prima facie case of defamation.
Neither side disputes the prima facie finding, and as such, we do not address this issue.
The trial court also held May’s statement was protected by qualified privilege.
Case No. 25 BE 0018
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{¶113} “A qualified privilege is recognized in many cases where the publisher and
the recipient have a common interest, and the communication is of a kind reasonably
calculated to protect or further it. Frequently, in such cases, there is a legal, as well as a
moral, obligation to speak.” (Citations omitted.) Hahn v. Kotten, 43 Ohio St.2d 237, 244
(1975). The business communication privilege requires a defendant to show good faith;
an interest to be upheld; the statement was limited in its scope to its purpose; and the
statement was made in a proper manner, to the proper parties, and at a proper occasion.
Id.
{¶114} To defeat a qualified privilege, a plaintiff must establish by clear and
convincing evidence that the communication was made with actual malice. A & B-Abell
Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d
1 (Ohio 1995). Actual malice means “acting with knowledge that the statements are false
or acting with reckless disregard as to their truth or falsity.” Id. Reckless disregard is
shown by clear and convincing proof that the false statements were made with a high
degree of awareness that they were likely false or the defendant “entertained serious
doubts” as to the truth of the statements. Varanese v. Gall, 35 Ohio St.3d 78, 80 (1988).
{¶115} “Generally, a communication made in good faith on a matter of common
interest between an employer and an employee, or between two employees concerning
a third employee, is protected by qualified privilege.” Hatton v. Interim Health Care of
Columbus, Inc., 2007-Ohio-1418, ¶ 14 (10th Dist.), quoting Hanley v. Riverside Methodist
Hosp., 78 Ohio App.3d 73, 81 (10th Dist. 1991).
{¶116} Here, the statements in question were made by May to other employees
working on the project with Ney. According to May, the intent of the communication was
to convey that Ney was no longer on the project. (May Depo. Tr. 55-56). Consistent with
his testimony, the court found the statement was made for the limited purpose of
communicating information to other employers who were reporting to Ney. Thus, the
court found Ney could only prevail upon a showing of actual malice. And because May
relied on Snodgrass’s version of what occurred with Ney, the trial court found Ney could
not prove actual malice. (April 9, 2025 Judgment.)
{¶117} We agree. May testified that he told his employees about the altercation
between Snodgrass and Ney to alert them to the fact that Ney was no longer on the job
Case No. 25 BE 0018
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and thus, they should no longer contact him about the work. The statement was limited
in its purpose, scope, and occasion. There is nothing showing May made the statement
with malice or with a high degree of awareness that it was likely false. There is nothing
tending to show May made the statement knowing it was false or that May entertained
serious doubts about the veracity of the statement.
{¶118} As the trial court found, May relied on the version of events conveyed by
Snodgrass, and Snodgrass testified consistent with the version of events relayed by May.
We agree with the court’s determination that the statement was privileged. Accordingly,
Ney’s third and ninth assigned errors are overruled.
Conclusion
{¶119} In light of the foregoing, no genuine issue of fact remains. We affirm the
trial court’s decision.
Hanni, J., concurs.
Dickey, J., concurs.
Case No. 25 BE 0018
[Cite as Ney v. May Eng. Co., L.L.C., 2025-Ohio-5081.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.