The opinion
KRUPANSKY, P.J.,
concurs in part and dissents in part.
I must respectfully dissent to that part of the majority opinion which would reverse the decision of the trial court and remand the case for trial. For reasons I will explain the trial court's granting of summary judgment was proper and should be affirmed.
The majority opinion's reliance on its reading of Kelly v. Georgia-Pacific Corp. (1989), 46 Ohio St. 3d 134 , is misplaced. The majority writes that a "determination of whether the employment-at-willrelationshiphasbeen altered by promises which could reasonably be relied upon by an employee cannot be resolved through a motion for summary judgment." However, the Kelly court actually held as follows:
"The determination of this issue cannot be resolved on a summary judgment motion. The reasonableness of such reliance, as noted in Mers, is a fact question for the jury." (Emphasis added.) Kelly, supra, at 139 .
Therefore, only when there is an issue as to whether plaintiffs reliance was reasonable is summary judgment inappropriate There is no authority for a complete emasculation of Civ. R. 56 in all wrongful discharge claims involving an employee-at-will situation and an employment manual.
Surely plaintiff still must bear the burden of introducing some evidence that would establish either actual reliance or at least identify a section of the employment manual that could justify *294 any reliance. However, in the case sub judice, plaintiff has not cited one shred of evidence in the employment manual which would justify any reliance. Plaintiff cites to general statements in the employment manual stating that an employee could expect to be fairly and honestly treated by the company. Plaintiff has also failed to demonstrate any actual reliance.
Plaintiff cites to statements made at a deposition by Scott Dalton, the Vice President of Employee and Community Relations. The statements concerned the introductory portion of the employment manual which stated an employee will be treated fairly and honestly by the company. Mr. Dalton, when asked to interpret this section of the employment manual, merely stated that subject to economic factors, an employee who performed well could generally expect to remain employed. Plaintiff tries to infer that his interpretation of the employment manual was the same as Mr. Dalton's and hence a reasonable interpretation. Therefore, based on this interpretation, plaintiff alleges his reliance on the employment manual was justified and acted to alter his at-will employment status
This argument is weak for two reasons. First, Mr. Dalton's statements were not made until after plaintiff was terminated, so there is no way plaintiff could have relied on Mr. Dalton's statements Plaintiffs actions were taken independently of any statements made by Mr. Dalton. Second, even if plaintiff came to the same conclusion as Mr. Dalton, it is irrelevant. Mr. Dalton simply stated that if an employee performed well, generally they can expect to remain employed. It is difficult to understand how such a general comment could be relied upon by Masek to alter an employment-at-will situation. Such a concept is inherent in any non-temporary employment.
The fact that plaintiff received merit raises did not change the employment relationship. There must be some nexus between these performance reviews and the employment contract which establishes and justifies the reliance. There has been no showing of any nexus. Therefore, the case at bar is distinguishable on its facts from Kelly .
The reasonableness of plaintiffs reliance is not at issue; rather, the existence of any such reliance is at issue and is unsupported by the record. Simply stated, plaintiff has failed to establish the element of reliance necessary to meet his burden. Therefore, the trial court did not err in finding an employment-at-will relationship and thus properly granted defendant's motion for summary judgment.
Accordingly, plaintiffs wife's claim for loss of consortium claim must also fail.
" * * * [A] cause of action based upon a loss of consortium is a derivative action. That means that the derivative action is dependent upon the existence of a primary cause of action and can be maintained only so long as the primary action continues. It logically follows therefrom that a derivative action cannot afford greater relief than that relief which would be permitted under the primary cause of action." Messmore v. Monarch Machine Tool Co. (1983), 11 Ohio App. 3d 67, 68 .
In the case sub judice, since the trial court properly granted summary judgment against all claims by Raymond Masek, the derivative claim by his wife must also fail. Therefore, the decision of the trial court should be affirmed.