Pullar v. UpJohn Health Care Services, Inc.

• Decision Date: 19 November 1984
• Docket Number: No. 47919,47919
• Citation: 21 OBR 433,21 Ohio App.3d 288,488 N.E.2d 486
• Parties: , 41 Fair Empl.Prac.Cas. (BNA) 457, 21 O.B.R. 433 PULLAR, Appellant, v. UPJOHN HEALTH CARE SERVICES, INC. et al., Appellees. *
• Court: Ohio Court of Appeals

Page 288

21 Ohio App.3d 288

488 N.E.2d 486, 41 Fair Empl.Prac.Cas. (BNA) 457, 21 O.B.R. 433

PULLAR, Appellant, v. UPJOHN HEALTH CARE SERVICES, INC. et al., Appellees. ^*

No. 47919.

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

Nov. 19, 1984.

Syllabus by the Court

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, 86 S.Ct. 1545, 16 L.Ed.2d 642, followed.)

David Roloff, Cleveland, for appellant.

Richard A. Dean and Michael J. Manuszak, Cleveland, for appellees.

PATTON, Judge.

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 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 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 ci...