Kelly v. Georgia-Pacific Corp., GEORGIA-PACIFIC

CourtUnited States State Supreme Court of Ohio
Citation545 N.E.2d 1244,46 Ohio St.3d 134
Docket NumberGEORGIA-PACIFIC,No. 88-1167,88-1167
Parties, 116 Lab.Cas. P 56,331, 4 IER Cases 1638 KELLY, Appellant, v.CORPORATION, Appellee.
Decision Date25 October 1989

Page 134

46 Ohio St.3d 134
545 N.E.2d 1244, 116 Lab.Cas. P 56,331, 4 IER Cases 1638
KELLY, Appellant,
No. 88-1167.
Supreme Court of Ohio.
Submitted May 9, 1989.
Decided Oct. 25, 1989.

Syllabus by the Court

1. Where a determination in a prior federal action was not essential to the judgment obtained therein, collateral estoppel will not foreclose consideration of the issue in a subsequent state proceeding involving a different claim for relief.

2. The facts and circumstances surrounding an employment-at-will relationship, including the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate the question, can be considered by the trier of fact in order to determine the explicit and implicit terms concerning discharge. (Mers v. Dispatch Printing Co. [1985], 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150, explained and followed.)

3. The doctrine of promissory estoppel is applicable to at-will employment relationships. The test in such cases is whether the employer should have reasonably expected its representation to be relied upon by its employee and, if so, whether the expected action or forbearance actually resulted and was determined to the employee. (Mers v. Dispatch Printing Co. [1985], 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150, explained and followed.)

Since 1966, plaintiff-appellant, Douglas R. Kelly, his wife and five children have resided in Wadsworth, Ohio. In 1970, he began employment with Hudson Pulp & Paper Corporation as a sales representative engaged in the sale of paper products (grocery[545 N.E.2d 1246] bags, sacks and butcher paper). In 1979, defendant-appellee, Georgia-Pacific Corporation, acquired Hudson

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Pulp & Paper Corp. and appellant continued to be employed in the same capacity by the acquiring corporation.

At the time of the acquisition, appellant's immediate supervisor was Frank Caponera, Northeast Regional Sales Manager for appellee. The superior of Frank Caponera was Rod Vilmur--General Sales Manager of the Grocery Bag Division. During this period, Georgia-Pacific had an Operating Policy Manual and Salaried Employee Benefit Plans to guide supervisory personnel with respect to their interrelationship with employees under their supervision. Relevant sections of the manual provided as follows:

"A Philosophy of Operation

"Georgia-Pacific has attained its present position through hard and effective work by a group of individuals dedicated to their jobs. These individuals working as a team complement each other. The company will continue to grow and prosper to the extent that this is continued. As a supervisor, you are the key.

"Your company has an enviable record of growth. We intend to continue this growth and it is our desire to have each of our employees grow right along with the company. So far as is possible, we want to develop our employees so that promotions to better positions can be within the G-P family rather than from the outside. You should endeavor to learn as much as you can about the company and its operation and strive to make these operations even better and more productive. In so doing your own betterment will not be neglected. To accomplish this will require honest effort and normally more than the standard 40 hours per week. Your extra effort in becoming better qualified will be rewarded; the company is always short of good people to fill the better jobs.

"To a large extent you are responsible for the happiness, goodwill, and efficient work of the employees reporting to you. This situation will demand many things from you; getting to work on time, observing company policies in every respect, working as hard or harder than you expect your subordinates to work, and making sure that all of those people reporting to you are always busy and treated fairly and justly. Accepting this responsibility will insure happy employees and good service to the company. On the other hand, if you are lax in these responsibilities, those employees reporting to you will adopt the same working habits. Dissension is created among good employees who are performing the duties required of them when they see others shirking their responsibilities. Allowing this to happen is a disservice to the company and will not be tolerated.

" * * *

"It is the policy of Georgia-Pacific that the employment and compensation of any employee can be terminated with or without cause, at any time, at the option of the employee or at the option of the company. No employee or representative of Georgia-Pacific, other than the Chief Executive Officer or the Corporation Director--Employees Relations and Administrative Services, has any authority to enter into any agreement extending the employment of any employee for any specific period of time, or to make any agreement contrary to the foregoing.

"It is also the policy of the company that salaried employees whose employment is terminated under similar circumstances be treated similarly with respect to pay, benefits, and possible reinstatement. The following provisions will apply according to the circumstances of termination." (Emphasis added.)

While the manual was distributed to supervisory personnel only, Caponera

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would frequently discuss its contents with the salesmen under his supervision. During deposition, Caponera testified as to these discussions:

"Whenever I had a problem, when any salesman asked me about a problem, I would look it up in here or refer to something. If I knew there was a problem in here, I would automatically refer to whoever[545 N.E.2d 1247] I was working for either Vilmur or Russell at the time."

"Sure. All the salesmen knew that I had it. In fact, I would look up things when we were on the road, if there were questions."

During his employment with Georgia-Pacific, appellant received periodic performance evaluations. In February 1980, Vilmur wrote the following about appellant:

"For the past nine years, Doug has been a steady performer in the key Ohio market. In 1978, we doubled the size of his territory by adding Michigan and Eastern Indiana to his responsibilities. * * * He is a classic example of the old line field salesman. * * * He assumes that we will treat him fairly based on his proven track record." (Emphasis added.)

In 1983, Verlon Rowe replaced Vilmur, and was given the title of General Manager of Bag and Sack Division. In 1982, Rowe had reported to A.R. Russell. Beginning in 1983, Rowe reported to Maurice Kring, Group Vice President of Tissue, Pulp and Paperboard. On April 12, 1984, Russell wrote the following letter to appellant:

"I know you will continue to make an outstanding contribution to the Grocery Bag Division particularly because of the unique opportunity the arrangement offers and the additional product line of Tissue."

Despite positive reviews of appellant's performance by Vilmur, Caponera and Russell, appellant was terminated at the insistence of Rowe on September 4, 1984.

In August 1985, appellant instituted an action in the United States District Court for the Northern District of Ohio, Eastern Division, alleging violations of federal and state law. The federal claims included allegations of handicap discrimination and violations of Section 510 of the Employee Retirement Income Security Act ("ERISA") and the Age Discrimination in Employment Act ("ADEA"). The state claims included wrongful discharge, breach of the covenant of good faith and fair dealing, breach of contract, promissory estoppel, defamation, and negligent termination. Thereafter, appellee answered and moved for summary judgment on all claims. Prior to judicial resolution of the motion, appellant voluntarily dismissed the handicap-discrimination claim.

On July 29, 1986, the district court granted the motion relative to the federal claims under ADEA and ERISA. Following this ruling, the court declined to exercise pendent jurisdiction over the state claims. The court also denied appellant's motion for post-judgment relief. Thereafter, the Sixth Circuit Court of Appeals affirmed the dismissal of the ERISA claim. The dismissal of the ADEA claim was not appealed.

On September 15, 1986, appellant instituted the present action in the Court of Common Pleas of Medina County, essentially alleging breach of express contract, breach of implied contract (promissory estoppel), and negligent termination. On April 13, 1987, appellee filed a motion for summary judgment. On September 15, 1987, the common pleas court determined that the state claims were barred by collateral estoppel (issue preclusion) arising from the district

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court resolution of the federal claims. The common pleas court found further that, even if not barred by collateral estoppel, the claims were resolvable in favor of appellee on summary judgment. The court of appeals affirmed, with Judge Mahoney dissenting with respect to the collateral estoppel issue.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Nicely & Wagner, Judith A. Nicely and Katherine C. Smith, Akron, for appellant.

Denlinger, Rosenthal & Greenberg, Daniel G. Rosenthal and Mark E. Lutz, Cincinnati, for appellee.

SWEENEY, Justice.


It is the contention of appellee that appellant is foreclosed from pursuing his breach of contract and negligent termination claims in state court because the facts underlying the claims were determined in the federal proceeding. Appellee therefore relies on the doctrine of collateral [545 N.E.2d 1248] estoppel. Collateral estoppel is often termed "issue preclusion." Consequently, in order for an issue to be precluded in subsequent litigation involving a different cause of action, the issue must have actually been decided in the prior proceeding. See Taylor v. Monroe (1952), 158 Ohio St. 266, 49 O.O. 118, 109 N.E.2d 271. It is this attribute of the doctrine of collateral...

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