Borowski v. State Chem. Mfg. Co.

• Decision Date: 18 October 1994
• Docket Number: Nos. 66240,66470 and 66471,s. 66240
• Citation: 647 N.E.2d 230,97 Ohio App.3d 635
• Parties: BOROWSKI, Appellant, v. STATE CHEMICAL MANUFACTURING COMPANY, Appellee.
• Court: Ohio Court of Appeals

Page 635

97 Ohio App.3d 635

647 N.E.2d 230

BOROWSKI, Appellant, v. STATE CHEMICAL MANUFACTURING COMPANY, Appellee.

Nos. 66240, 66470 and 66471.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Oct. 18, 1994.

Porter, Wright, Morris & Arthur, Terrance L. Ryan, Robert G. Cohn, Cleveland, and Anthony J. Celebrezze, Jr., Columbus, for appellant.

William A. Barnett, Hahn, Loeser & Parks, Pat E. Morgenstern-Clarren, G. Todd Downs, Cleveland, and Gentry & Gentry Co., L.P.A. and Eldred A. Gentry, Lakewood, for appellee.

NAHRA, Chief Justice.

Appellant, Edwin F. Borowski, is appealing the trial court's grant of summary judgment in favor of appellee, State Chemical Manufacturing Company ("State Chemical") in case No. 66240. Borowski claims State Chemical unlawfully demoted him from his position as district sales manager to a salesman position. State Chemical subsequently appealed the trial court's denial of attorney fees under R.C. 2323.51 in case No. 66470 and denial of attorney fees under Civ.R. 11 in case No. 66471. For Borowski's appeal, we affirm in part and reverse in part. We reverse State Chemical's appeal in case No. 66470 and affirm State Chemical's appeal in case No. 66471.

Appellant filed a complaint with the Ohio Civil Rights Commission ("OCRC"), claiming his demotion violated Ohio age discrimination statutes. The OCRC eventually closed and dismissed the case. Then, appellant filed the complaint in this matter with the Cuyahoga County Court of Common Pleas. The complaint alleged age discrimination under R.C. 4112.99, breach of contract, promissory estoppel, breach of the covenant of good faith and fair dealing and intentional infliction of emotional distress. The complaint was amended to add a count for retaliation.

Then, appellant filed suit in the United States District Court for the Northern District of Ohio. This complaint alleged age discrimination and retaliation under Section 621 et seq., Title 29, U.S.Code. Appellant also included the common-law tort and contract claims set forth in the state lawsuit.

The federal court granted summary judgment to appellee, finding that appellant had proved a prima facie case of discrimination but produced no evidence rebutting the employer's articulated nondiscriminatory reason. See McDonnell Douglas v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. The federal court declined to exercise jurisdiction over the retaliation claim and the pendent state claims.

Subsequently, the court of common pleas granted summary judgment to appellee on all of appellant's claims.

Appellant's sole assignments of error states:

"The trial court erred in granting State Chemical's motion for summary judgment."

I. The Age Discrimination Claim

The trial court properly granted summary judgment on the age discrimination claim because the federal court's decision on the age discrimination claim is res judicata. A claim litigated to finality in the United States district court cannot be relitigated in a state court when the state claim involves the identical cause of action previously litigated in the federal court and involves the same parties or their privies. Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 25 OBR 89, 494 N.E.2d 1387. Here, the federal and state actions involved the same parties. Appellant argues these suits did not involve the same cause of action because one suit was under the federal Age Discrimination Employment Act ("ADEA") and the other was under Ohio anti-discrimination statutes.

The same "cause of action" does not necessarily involve the same legal basis. See Rogers, supra. The test for determining whether two cases involve the same cause of action is: (1) both cases have identical facts creating the right of action and (2) the evidence necessary to sustain each action is identical. Norwood v. McDonald (1943), 142 Ohio St. 299, 306, 27 O.O. 240, 243, 52 N.E.2d 67, 71; see Jehovah's Witnesses, Inc. v. Lakewood (1984), 20 Ohio App.3d 338, 340, 20 OBR 441, 443-444, 486 N.E.2d 194, 196-197.

The facts surrounding the alleged discriminatory demotion of appellant created the right of action in the state and federal cases. The evidence necessary to sustain a federal and a state age discrimination claim is identical. Barker v. Scovill (1983), 6 Ohio St.3d 146, 6 OBR 202, 451 N.E.2d 807; Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, 575 N.E.2d 439. Appellant argues the federal and state courts have different standards for granting summary judgment in a discrimination case.

Appellant asserts that a state court will not grant summary judgment to the employer if the employee establishes a prima facie case under the McDonnell Douglas test. According to appellant, the state court, unlike a federal court, will not go further to examine whether the employer offered a legitimate reason for its action and whether the employee offered any evidence to show the reason was a pretext.

Appellant's assertion is incorrect. Ohio courts will grant summary judgment to the employer even if the employee establishes a prima facie case, if the employee presents no evidence to rebut the employer's legitimate nondiscriminatory reason. Hollowell v. Society Bank & Trust (1992), 78 Ohio App.3d 574, 605 N.E.2d 954; Wang v. Goodyear Tire & Rubber Co. (1990), 68 Ohio App.3d 13, 587 N.E.2d 387; Wilson v. Hupp Co. (Nov. 25, 1987), Cuyahoga App. No. 54176, unreported, 1987 WL 20474. Appellant misreads Duvall v. Titan Equip. Corp. (June 25, 1992), Cuyahoga App. No. 62809, unreported, 1992 WL 146861, where the employer's motion for summary judgment was denied because there was some evidence the employer's articulated reason was a pretext.

Appellant also argues that the federal district court only applied the McDonnell Douglas test and did not utilize the direct evidence test set out by the Ohio Supreme Court in Kohmescher, supra. The direct evidence test exists in the federal system as well as the state system. See Kohmescher, 61 Ohio St.3d at 504-505, 575 N.E.2d at 441-443, citing Trans World Airlines, Inc. v. Thurston (1985), 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523, 533. Although not stated in the federal court's opinion in this case, it can be inferred that the federal district judge found there was no direct evidence of discrimination.

The federal court's decision on the age discrimination claim involved the same facts and evidence, and thus the same cause of action as the state claim. The judgment of the federal court is res judicata to appellant's state law age discrimination claim. Appellee did not waive its right to assert res judicata by failing to object when the federal lawsuit was filed. There was no judgment in existence at that time which could be claimed to be res judicata. The "waiver" cases cited by appellant differ on their facts. These cases involved separate suits for different damages arising from a single cause of action. See Fox v. Althorp (1883), 40 Ohio St. 322; Shaw v. Chell (1964), 176 Ohio St. 375, 27 O.O.2d 348, 199 N.E.2d 869.

We note in dicta that under the facts of this case, appellant's suit under R.C. 4112.99 was not necessarily barred by appellant's prior filing with the OCRC. When appellant filed with the OCRC, he gave the intake officer a signed letter, stating that Borowski was filing only to perfect a claim under the ADEA. The ADEA requires that state administrative proceedings must be initiated before a suit under the ADEA can be filed. Section 633, Title 29, U.S.Code. The letter also stated Borowski did not want the OCRC to investigate, and he intended to file suit directly. Although the OCRC charge form signed by Borowski states, "I understand that upon filing of this charge affidavit with the Ohio Civil Rights Commission, I am barred from instituting any such civil action," this appears to be boilerplate language. Thus, Borowski elected the remedy of filing suit directly, not the administrative remedy.

As a general rule, filing with the OCRC precludes a subsequent suit under R.C. 4112.99. R.C. 4112.08; Pozzobon v. Parts for Plastics, Inc. (N.D.Ohio 1991), 770 F.Supp. 376; Schwartz v. Comcorp, Inc. (1993), 91 Ohio App.3d 639, 633 N.E.2d 551; Balent v. Natl. Reserve Corp. (1994), 93 Ohio App.3d 419, 638 N.E.2d 1064. In these cases, the employee did not indicate to the OCRC that he/she did not want an investigation and was filing for ADEA purposes only. Thus, these employees elected the administrative remedy. In Smith v. Berry (S.D.Ohio 1986), 654 F.Supp. 11, the employee submitted an affidavit to the trial court saying his intent in filing with the OCRC was solely to preserve his right to file suit under the ADEA. There was no evidence in Smith v. Berry that the employee indicated his intent when he filed the charge, however. Thus, these cases are distinguishable from the case at hand.

Appellee contends the proper procedure appellant should have taken was to first file the federal and state suits, and then file a charge with the OCRC. Smith, supra, 654 F.Supp. at 14. While this procedure was available to appellant, we believe the method used by appellant was proper to elect the civil suit remedy. Appellant's suit under R.C. 4112.99 was not barred by filing with the OCRC.

II. Breach of Contract and Promissory Estoppel

Appellant bases his claims of breach of contract and promissory estoppel on the following facts: In 1982, Howard Heller, the National Sales Manager, induced appellant to accept a promotion from salesperson to district sales manager. Heller said that Borowski would never have to carry a bag of sales samples again, as long as he did a good job as district sales manager. Appellant accepted the promotion, giving up a lucrative, "protected" sales territory. Borowski received more monetary compensation when he was promoted. When appellant was demoted back to salesperson, he received an inferior territory and had a loss of earnings. Additionally, neither Heller nor anyone else told appel...