PULLAR,
APPELLANT,
vs.
UPJOHN HEALTH CARE SERVICES,
INC. ET AL., APPELLEES
No. 47919
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA
COUNTY
488 N.E.2d 486, 21 Ohio App. 3d 288, 21 Ohio B. Rep. 433
November 19, 1984, Decided
HEADNOTE
Employer and employee -- Complaint of age discrimination --
R.C. 4101.17 -- Complainant collaterally estopped from bringing
action when there has been prior determination of discharge for
just cause under R.C. 4141.29(D)(2)(a) -- Administrative
determination collaterally estops civil action, when.
SYLLABUS
1. A finding by the referee of the Unemployment Compensation Board
of Review that an employee was discharged for just cause in
connection with work, within the meaning of R.C. 4141.29(D)(2)(a),
based on her refusal to follow orders collaterally estops that
employee from raising the issue of the cause of her discharge under
R.C. 4101.17, age discrimination.
2. An administrative determination can collaterally estop a
civil action when the following factors are present:
(a) the board was acting in a judicial capacity when it
considered the claims of the parties;
(b) the factual disputes resolved were clearly relevant to
issues properly before it; and
(c) both parties had a full and fair opportunity to argue their
version of the facts and an opportunity to seek out review of any
adverse findings. (United States v. . Utah
Construction Co. [1966], 384 U.S. 394, followed.)
COUNSEL
David Roloff, for appellant.
Richard A. Dean and Michael J.
Manuszak, for appellees.
JUDGES
PATTON, J. CORRIGAN, C.J., concurs. PARRINO, J., dissents.
AUTHOR: PATTON
OPINION
{*288} This appeal arises from judgments entered by the
Cuyahoga County Court of Common Pleas granting the motion for
summary judgment in its entirety filed by appellee UpJohn Health
Care Services, Inc. (hereinafter UpJohn) and granting, in part, the
motion for summary judgment filed by appellee Dart Medical
Equipment, Inc. (hereinafter Dart Medical). The facts giving rise
to the appeal as contained in the record provide the following:
On March 4, 1981, appellant, Lynn Pullar, filed a complaint in
the court of common pleas naming as defendants, UpJohn, Dart
Medical and Douglas Greenwold, individually and as President of
Dart Medical. In her initial complaint, Pullar alleged four causes
of action: (1) a violation of R.C. 4101.17 based on age
discrimination; (2) a violation of a contractual understanding in
which she was to have an explicit employment contract with UpJohn
for two years; (3) an intentional interference by Dart Medical with
the existing employment contract between Pullar and UpJohn by
communicating falsehoods about Pullar to UpJohn; and (4) a wrongful
discharge of Pullar based on her communicating to doctors the
malfunctions in the pacemaker units.
On May 7, 1981, UpJohn filed a separate answer and counterclaim.
On May 8, 1981, Dart Medical and Greenwold filed a motion for a
definite statement. On May 8, 1981, Greenwold filed a motion to
dismiss for lack of personal jurisdiction. On June 4, 1981,
appellant filed an answer to UpJohn's counterclaim. Various
pleadings were filed by {*289} the parties pertaining to
the motion for a more definite statement. On June 30, 1981, the
court granted Greenwold's motion to dismiss for lack of personal
jurisdiction.
On July 13, 1981, Pullar filed her amended complaint and alleged
four causes of action. The actions are identical to those filed in
the original complaint with the further clarification that the
two-year employment contract was oral. On July 17, 1981, Greenwold
filed a motion to dismiss for lack of personal jurisdiction based
on Pullar's amended complaint. On July 21, 1981, UpJohn filed a
separate answer to the amended complaint, and a counterclaim. On
July 27, 1981, Dart Medical filed a separate answer to the amended
complaint. On July 31, 1981, Pullar filed a reply to UpJohn's
counterclaim. On September 28, 1981, the court granted Greenwold's
motion to dismiss Pullar's amended complaint against him both
individually and in his official capacity.
On November 24, 1981, UpJohn filed a motion for summary
judgment. In its motion, UpJohn addressed each relevant cause of
action. UpJohn argued that Pullar's cause of action under R.C.
4101.17 is barred by res judicata and collateral
estoppel. UpJohn admitted that Pullar was employed with it from May
12, 1980 through November 20, 1980. UpJohn contends that Pullar was
terminated for failure to follow a direct order of her employer.
The referee of the Unemployment Compensation Board of Review found
this contention meritorious. Pullar had applied for and was denied
unemployment compensation. The referee of the board of review
affirmed the administrator's decision and the board of review
disallowed her request to institute a further appeal. The referee
held that there was just cause for Pullar's discharge because of
her failure to obey a written order given by UpJohn. Pullar failed
to make a timely appeal of the denial to the court of common pleas,
which resulted in a dismissal of her appeal. In Pullar's first
cause of action, UpJohn argued that under R.C. 4101.17, in order to
prove age discrimination, the appellant must prove that she had not
been discharged for just cause.
UpJohn argues that the second cause of action is barred by the
Statute of Frauds because Pullar admitted in her amended complaint
that the employment contract was a two-year oral contract. UpJohn
correctly asserts that Pullar's third cause of action is only
applicable to Dart Medical. Finally, Pullar alleged wrongful
discharge in her fourth cause of action and UpJohn argued that
Pullar's discharge was found to be for just cause and her
employment was terminable at will.
On December 10, 1981, Dart Medical filed a motion for summary
judgment. On January 6, 1982, Pullar filed a brief in opposition to
both of the motions for summary judgment. On January 13 and 14,
1982, UpJohn and Dart Medical respectively filed their reply briefs
in support of their respective motions for summary judgment. On
August 30, 1983, the court filed a judgment entry and opinion. The
court held that: (1) the denial of unemployment compensation
benefits on the basis that Pullar was terminated for just cause
estopped Pullar from asserting a claim arising out of her
discharge; (2) Pullar's claim for breach of contract was barred by
the Statute of Frauds; and (3) no cause of action for wrongful
discharge existed.
Pullar's third cause of action against Dart for interference
with the employment contract and the counterclaim filed by UpJohn
were not dealt with in the court's judgment entry. However, Pullar
voluntarily dismissed her remaining cause of action without
prejudice, and the counterclaim was also dismissed. On November 21,
1983, the trial court filed its judgment entry dismissing
{*290} the case. Pullar appeals, assigning the following
errors:
"I. The trial court erred by granting summary judgment to
defendants.
"II. The trial court erred by dismissing plaintiff's first cause
of action based on a violation of Ohio Revised Code Section
4101.17.
"III. The trial court erred in dismissing plaintiff's second
cause of action on the oral agreement and holding that it was
barred by the statute of frauds.
"IV. The trial court erred in dismissing plaintiff's fourth
cause of action alleging that plaintiff was wrongfully
discharged."
I
In appellant's first assignment of error, she contends that
summary judgment should not have been granted. The remaining
assignments express her reasons why summary judgment should not
have been granted. Accordingly, for the sake of clarity,
appellant's first assignment will be discussed within each of the
remaining assignments.
II
In the second assignment of error, appellant contends that
summary judgment should not have been granted because a cause of
action existed under R.C. 4101.17. This contention is without
merit.
R.C. 4101.17 provides in part:
"(A) No employer shall discriminate in any job opening against
any applicant or discharge without
just cause any employee between the ages of forty and
seventy who is physically able to perform the duties and otherwise
meets the established requirements of the job and laws pertaining
to the relationship between employer and employee.
"(B) Any person between the ages of forty and seventy
discriminated against in any job opening or discharged
without just cause by an employer in violation of
division (A) of this section may institute a civil action against
the employer in a court of competent jurisdiction. * * *
"(C) The cause of action described in division (B) of this
section * * * shall not be available in the case of discharges * *
* where a discharge has been arbitrated and has been found
to be for just cause." (Emphasis added.)
In the case sub judice, after the appellant was
discharged, she applied for and was denied unemployment
compensation. Appellant pursued the administrative appeal procedure
and in each decision, the reviewing tribunal held that she had been
discharged for just cause.
The findings of fact given by the board of review referee stated
that Pullar was employed as a pacecare monitor by UpJohn from May
11, 1980 until November 18, 1980. Pullar is a registered nurse, and
the project she was involved in was to introduce computers to
monitor pacemakers to the market in the Cleveland area. To carry
out this assignment, Pullar was issued detailed instructions by her
supervisor. The referee determined that she did not carry out her
supervisor's instructions. On October 24, 1980, Pullar received a
directive from her supervisor which instructed her to visit
installations and equipment only when her supervisor was present.
Pullar chose to ignore the directive, and on November 18, 1980, she
was discharged because of failure to follow her supervisor's
instructions.
The board of review referee held that the applicable law was
R.C. 4141.29(D)(2)(a). The referee held Pullar was discharged for
just cause in connection with work.
Appellees correctly assert that the finding by the referee of
the Unemployment Compensation Board of Review that the appellant
was discharged for just cause collaterally estops the appellant
from raising the issue under R.C. 4101.17. To support this
assertion, UpJohn {*291} cites Barker v.
. Scovill (1983), 6 Ohio St. 3d 146. In paragraph
two of the syllabus, the court held:
"Within the context of R.C. 4101.17, 'just cause' for discharge
is established if plaintiff was terminated for reasons other than
those explicitly prohibited by the statute."
In the body of the opinion, the court elaborated at 149-150,
stating:
"Finally, appellant suggests that an employer may not escape
liability under R.C. 4101.17 simply by showing that he dismissed a
member of the class which the statute protects for reasons other
than the latter's age. The employer must also, appellant contends,
adduce evidence that he discharged the employee for 'just cause.'
We disagree. This court determined * * * that just cause was not an
issue in an action alleging racial discrimination in contravention
of R.C. 4112.02(A). We now hold that such a consideration is
equally irrelevant in an R.C. 4101.17 age discrimination case.
Under the latter, and for purposes of this case, an
employee has been discharged with just cause when his termination
was not based on his age.
"To condition an employer's right to discharge an employee
between the ages of forty and seventy upon proof of just cause
would confer greater rights upon that group of employees than would
be enjoyed by others." (Emphasis added.)
In the case sub judice, it has already been
established in a prior administrative hearing that the appellant's
discharge was based on her refusal to follow orders. Therefore, it
follows that her discharge could not be based upon her age.
Appellant's argument to this court is that we should not allow the
decision of the referee which denied her benefits because she was
discharged for cause to interfere with her ability to bring a civil
suit because she claims she was discharged on the basis of age
discrimination. Appellant bases this dubious argument on the fact
that no authority from Ohio or any other jurisdiction was cited in
which an unemployment compensation finding by a referee was held to
estop a litigant complaining of an improper discharge.
Appellant may be correct in stating that no case has ever dealt
with facts concerning the administrative decision of the
Unemployment Compensation Board of Review; however, the courts of
Ohio and other jurisdictions have recognized the collateral
estoppel effect of administrative findings. In one of the earliest
decisions pertaining to decisions in administrative proceedings,
the United States Supreme Court decided United
States v. . Utah Construction Co. (1966),
384 U.S. 394, at 422, and held:
"When an administrative agency is acting in a judicial capacity
and resolves disputed issues of fact properly before it which the
parties have had an adequate opportunity to litigate, the courts
have not hesitated to apply res judicata to
enforce repose." (Citations omitted.)
The court held that a contractor could not relitigate the
factual issues determined by the Board of Contract Appeals before
the Court of Claims. The Supreme Court stated that to hold that
res judicata principles do not apply to
administrative proceedings is too broad. The court looked at three
factors: (1) the board was acting in a judicial capacity when it
considered the claims of the parties; (2) the factual disputes
resolved were clearly relevant to issues properly before it; and
(3) both parties had a full and fair opportunity to argue their
version of the facts and an opportunity to seek out review of any
adverse findings. When these factors are present, the court held:
"[T]here is * * * neither need nor justification for a second
evidentiary hearing on these matters already resolved as between
these two parties." Id.
In cases decided after Utah Construction, the
courts have stated caution {*292} must be exercised before
according an administrative determination collateral estoppel
effect in a judicial proceeding. The courts have held that there is
a need to be cautious before giving an administrative ruling a
collateral estoppel or res judicata effect. Each
case must be scrutinized as to whether the doctrine is applicable
in light of the particular prior administrative proceedings. See
United States v. . Lasky (C.A. 9,
1979), 600 F. 2d 765; Internatl. Wire v. .
Local 38, IBEW (N.D. Ohio 1972), 357 F. Supp. 1018. See,
also, Montana v. . United States
(1979), 440 U.S. 147 (United States Supreme Court held that
redetermination of issues is warranted if there is
reason to doubt the quality, extensiveness, or fairness of
procedures followed in prior litigation).
In Superior's Brand v. .
Lindley (1980), 62 Ohio St. 2d 133 [16 O.O.3d 150], the
Ohio Supreme Court held that Superior could not relitigate the
factual issues determined by the Board of Tax Appeals again in a
second proceeding before the Board of Tax Appeals. The court
adopted the reasoning of Utah Construction and
held at 135:
"We recognize the need for flexibility in applying the doctrine
of collateral estoppel to the administrative decision-making
process; however, because of the need for finality, we hold that
ordinarily where an administrative proceeding is of a judicial
nature and where the parties have had an adequate opportunity to
litigate the issues involved in the proceeding, the doctrine of
collateral estoppel may be used to bar litigation of issues in a
second administrative proceeding. In so ruling we join numerous
courts including the United States Supreme Court. United
States v. . Utah Construction & Mining
Co. (1966), 384 U.S. 394."
Appellant argues that collateral estoppel andor res
judicata was applicable in Superior's
Brand because the second proceeding was before the same
administrative agency. However, there is no reason to justify
retrying the reason for appellant's discharge in the case
sub judice when the identity of the parties and
the issue -- i.e., the reason for Pullar's
termination -- would be exactly the same as those in the referee's
hearing. See Naff v. . Standard Oil
Company (S.D. Ohio 1981), 527 F. Supp. 160. Appellant
cites to Alexander v. . Gardner-Denver
Company (1974), 415 U.S. 36, in which the Supreme Court
refused to bar a claim under the Civil Rights Act as a result of an
arbitration proceeding arising out of a collective-bargaining
agreement. The case is not applicable to the present situation
because it involved an election of remedies issue. The arbitration
proceeding arose out of a collective bargaining agreement, not a
statutorily mandated administrative hearing.
In Gear v. . Des Moines (S.D.
Iowa 1981), 514 F. Supp. 1218, the court considered the collateral
estoppel effect of an unemployment compensation board's finding
that a former police officer left her employment voluntarily and
without cause on the officer's subsequent civil rights action. The
court stated at 1221 that "the doctrine of collateral estoppel
should be employed more selectively and with a greater degree of
flexibility when an administrative finding is involved." The court
applied the three factors that the United States Supreme Court
examined in Utah Construction and held that the
determination by the Iowa Department of Job Service, after an
administrative hearing on appeal, that a female former police
officer had left her employment voluntarily and without good cause
attributable to the employer, precluded relitigation of questions
decided therein in a subsequent suit brought by the former officer
alleging that her discharge violated the Civil Rights Act of 1871
and the Fourteenth Amendment. The court stated at 1223:
"In sum, collateral estoppel {*293} precepts enunciated
in Utah Construction apply herein to bar
readjudication of disputed issues of fact resolved in a state
evidentiary hearing, where both litigants were notified, heard,
introduced evidence and were afforded the opportunity to seek court
review of adverse rulings."
In Knox v. . Cornell
University (N.D. N.Y. 1982), 30 Fair Emp. Prac. Cas. (BNA)
433, plaintiff brought a Title VII action claiming he was fired
because he was black. The decision of the unemployment compensation
referee was that the plaintiff lost his job as a direct result of
his own misconduct. That decision was affirmed by an unemployment
insurance appeal board and a New York court. The District Court of
New York affirmed and held at 436:
"* * * [A] party may be precluded from relitigating an issue of
law or fact if there has been 'a full and fair opportunity to
contest the decision said to be dispositive of the present
controversy' and the issue is identical to the issue in the prior
action. * * * [Citation omitted.] The cause for the termination of
plaintiff's employment was the issue determined in the New York
courts, and plaintiff was afforded a full and fair opportunity to
contest the determination that he was discharged for an unreported
absence."
In Kremer v. . Chemical Construction
Corp. (1982), 456 U.S. 461, the United States Supreme
Court held that where a plaintiff had filed an employment
discrimination charge with the EEOC, which referred the charge to
the New York State Division of Human Rights which rejected the
claim as without merit and whose decision was upheld on
administrative appeal, and the New York Supreme Court, Appellate
Division, affirmed, a federal district court was required to give
preclusive effect to the judgment upholding the administrative
agency's rejection of the employment discrimination claim. The
Supreme Court stated at 467 in fn. 6: "Under collateral estoppel,
once a court decides an issue of fact or law necessary to its
judgment, that decision precludes relitigation of the same issue on
a different cause of action between the same parties." The court at
480-481 added that:
"* * * [T]he judicially created doctrine of collateral estoppel
does not apply when the party against whom the earlier decision is
asserted did not have a 'full and fair opportunity' to litigate the
claim or issue * * * [citations omitted]. 'Redetermination of
issues is warranted if there is reason to doubt the quality,
extensiveness, or fairness of the procedures followed in prior
litigation.'" (Citations omitted.)
The court held that the state must satisfy the applicable
requirements of the Due Process Clause but then stated at 483: "We
must bear in mind that no single model of procedural fairness, let
alone a particular form of procedure, is dictated by the Due
Process Clause." See Ross v. .
Comsat (D. Md. 1984), 34 Fair Emp. Prac. Cas. (BNA) 260,
which cites to Kremer. The court considered the
collateral estoppel effect of an unemployment compensation
referee's determination that plaintiff had been discharged from his
employment for misconduct, on the plaintiff's subsequent Title VII
sex discrimination action. The court concluded that the
administrative proceeding provided the plaintiff with a full and
fair opportunity to litigate his claim.
In the case sub judice, appellant also attempts
to argue that an unemployment compensation hearing is designed to
be informal, expeditious and inexpensive. Findings under such a
relaxed and abbreviated procedure should not be accorded
res judicata effects. She also argues that a
referee's determination may rest on evidence that would not be
permitted in a court of law and under such circumstances, she
should not be denied her day in court. But, see, Gear,
{*294} supra. A review of the record reveals that
appellant was provided with the necessary rules of procedure to
appeal her claim. The record indicates that appellant through her
attorney did appeal the administrator's decision to the board of
review referee. Therefore, appellant and her counsel had a full and
fair opportunity to produce evidence, give testimony and
cross-examine witnesses in order to prove her dismissal was without
cause. Since the record before this case does not contain a
transcript of the proceedings which occurred in the hearing before
the referee of the board of review, we must adhere to the theory of
presumption of regularity.
Furthermore, appellant failed to pursue her right to appeal to
the court of common pleas in a timely fashion which waived any
further attempts to appeal the reason for her leaving UpJohn. In
Trautman v. . Standard Oil Co. of
Indiana (Minn. 1978), 263 N.W. 2d 809, the factual finding
by a workmen's compensation bureau that the plaintiff was an
employee of defendant was res judicata in a
common-law action for negligence brought by the plaintiff. The
court held at 814-815:
"No appeal was taken from the North Dakota Workmen's
Compensation Board's determination even though Trautman was
represented by an attorney before the last award was granted.
[Footnote omitted.]
"We therefore hold that a final determination as to the
employment relationship of Trautman and American Oil was made by
the North Dakota Workmen's Compensation Bureau and is res judicata,
preventing this common-law action."
Appellant also attempts to argue that the assertion of
collateral estoppel and res judicata in a summary
judgment motion rather than an answer is improper and constitutes a
waiver. This argument is without merit. Civ. R. 8(C) requires that
affirmative defenses, including res judicata and
collateral estoppel, be specifically set out. However, Civ. R.
12(H) (as amended July 1, 1983)1 no longer provides for general
waiver of affirmative defenses not pleaded. Certain specific
defenses are discussed but no reference to collateral estoppel or
res judicata is made; therefore, they cannot be
considered waived.
Finally, appellant's first assignment of error as it relates to
Dart Medical is without merit. R.C. 4101.01(C) defines an employer
as "every person, firm, corporation, agent, manager,
representative, or other person having control or custody of any
employment, place of employment, or employee." Pullar's amended
complaint alleged that she had an employment contract with UpJohn,
not Dart Medical, and that she was supervised and under the control
of UpJohn. Therefore, Dart Medical cannot be considered an employer
under the terms of R.C. 4101.17.
Accordingly, appellant's second assignment of error is without
merit.
III
In the third assignment of error, appellant contends that
summary judgment should not have been granted because her oral
contract agreement was not barred by the Statute of Frauds. This
contention is without merit.
R.C. 1335.05 states in part:
" No action shall be brought whereby
{*295} to charge the defendant, upon a special promise, to
answer for the debt, default, or miscarriage of another person; nor
to charge an executor or administrator upon a special promise to
answer damages out of his own estate; nor to charge a person upon
an agreement made upon consideration of marriage, or upon a
contract or sale of lands, tenements, or hereditaments, or interest
in or concerning them, or upon an agreement that is not to
be performed within one year from the making thereof; unless the
agreement upon which such action is brought, or some memorandum or
note thereof, is in writing and signed by the party to be charged
therewith or some other person thereunto by him or her lawfully
authorized." (Emphasis added.)
In her amended complaint the appellant states that "on or about
May 12, 1980, she entered into an oral contract with UpJohn wherein
she agreed to work for UpJohn for at least two years, and wherein
UpJohn agreed to employ Plaintiff regardless of the success or
failure of the project to which she was being assigned." There was
no allegation that the contract was a one-year contract with an
agreement to renew at least once.
Even assuming arguendo that the contract was a
one-year contract with a mandatory renewal agreement, UpJohn would
still be bound for a time period greater than one year. Therefore,
the alleged oral contract is unenforceable under the Statute of
Frauds.
Accordingly, appellant's third assignment of error is without
merit.
IV
In the fourth assignment of error appellant contends that
summary judgment should not have been granted because there was a
question of fact as to whether she was wrongfully discharged. This
contention is without merit.
Appellant contends that she was discharged for reasons that were
contrary to public policy. She cites to Henkel v.
. Educational Research Council (1976), 45 Ohio St.
2d 249 [74 O.O.2d 415], to support the theory that Ohio recognizes
that under common law an employee not employed for a definite term
is deemed an employee at will, whose services could be terminated
at the will of the employer. Appellant then begins a lengthy
dissertation on employees at will and cases from other
jurisdictions which provide for employees to assert a claim for
relief based on the public policy exception to the employment at
will doctrine. The entire discussion is irrelevant.
Employment at will results if there is an absence of facts or
circumstances which indicate that the agreement is for a specific
term. In the case sub judice, the amended
complaint alleges a two-year oral contract which is a violation of
the Statute of Frauds and cannot be enforced. UpJohn contends in
its motion for summary judgment that if the contract is
unenforceable, then Pullar is an employee at will. However, the
trial court stated that an independent cause of action for wrongful
discharge in tort, the one exception to the employee at will
doctrine, does not exist in Ohio.
Furthermore, appellant is estopped from relitigating the issue
of the cause of her discharge because the findings of the referee
of the board of review concluded that the appellant was discharged
for her failure to follow a directive issued by her supervisor.
Therefore, she cannot now claim an action for wrongful
discharge.
Accordingly, appellant's fourth assignment of error is without
merit.
The judgment of the trial court is affirmed.
Judgment affirmed.
DISPOSITION
Judgment
affirmed.
DISSENT
{*296} PARRINO, J., dissenting.
I respectfully dissent. A review of the facts in the case at
bar, and the applicable case law, reveals that the trial court
erred in granting summary judgment on the count of
plaintiff-appellant's complaint alleging an age discrimination
violation under R.C. 4101.17.
R.C. 4101.17 creates a cause of action separate and distinct
from that provided by the unemployment compensation statutes. R.C.
4101.17 provides in pertinent part:
"(B) Any person between the ages of forty and seventy
discriminated against in any job opening or discharged without just
cause by an employer in violation of division (A) of this section
may institute a civil action against the employer in a court of
competent jurisdiction. If the court finds that an employer has
discriminated on the basis of age, the court shall order an
appropriate remedy which shall include reimbursement to him for the
costs, including reasonable attorney fees, of the action, or to
reinstate the employee in his former position with compensation for
lost wages and any lost fringe benefits from the date of the
illegal discharge and to reimburse him for the costs, including
reasonable attorney fees, of the action."
The only exception to this is expressly stated in subdivision
(C) of R.C. 4101.17, which states as follows:
"The cause of action described in division (B) of this section
and any remedies available pursuant to sections 4112.01 to 4112.11
of the Revised Code shall not be available in the case of
discharges where the employee has available to him the opportunity
to arbitrate the discharge or where a discharge has been arbitrated
and has been found to be for just cause."
Clearly, the General Assembly, in drafting subdivision (C) of
R.C. 4101.17, contemplated an arbitration hearing that provided an
individual with a full and fair opportunity to argue the issue of
whether the discharge was based on age discrimination. Since there
was no arbitration hearing in the instant case, the trial court
could not have relied on R.C. 4101.17(C) in granting UpJohn's
motion for summary judgment relating to appellant's claim of
alleged age discrimination. Instead, the trial court relied upon
the doctrine of collateral estoppel in order to preclude a trial on
this subject.
An administrative determination can collaterally estop a civil
action if: (1) the board was acting in a judicial capacity when it
considered the claims of the parties; (2) the factual disputes
resolved were clearly relevant to issues properly before it; and
(3) both parties had a full and fair opportunity to argue their
version of the facts and an opportunity to seek out review of an
adverse finding. United States v. . Utah
Construction Co. (1966), 384 U.S. 394, at 422. In my
opinion, UpJohn did not establish that all three of the above
factors existed.
The record in this case discloses that appellant's employment
was terminated for a reason entirely unrelated to age
discrimination. More specifically, there is no evidence in the
record to show that appellant argued or had the opportunity to
argue the issue of age discrimination before the administrator, or
the referee of the board of review; nor is there any evidence that
the issue of age discrimination was ever mentioned or considered in
those proceedings. Absent such evidence, I believe that the
determination made by the referee does not estop appellant from
bringing an action under R.C. 4101.17.
Accordingly, I would reverse the trial court's judgment
regarding appellant's claim for wrongful discharge based on age
discrimination and remand this issue for trial as provided in R.C.
4101.17.
OPINION FOOTNOTES
1 "Effective date of amendments. The amendments submitted by the
Supreme Court to the General Assembly on January 12, 1983 shall
take effect on July 1, 1983. They govern all proceedings in actions
brought after they take effect and also all further proceedings in
actions then pending, except to the extent that their application
in a particular action pending when the amendments take effect
would not be feasible or would work injustice, in which event the
former procedure applies." Civ. R. 86(I).
There is no evidence that the application of the amended Civ. R.
12(H) would "work injustice" since appellant never raised this
objection before the trial court.