Rawson v. Sears, Roebuck and Co.

• Decision Date: 10 January 1983
• Docket Number: Civ. A. No. 81-K-1454.
• Citation: 554 F. Supp. 327
• Parties: Gary RAWSON, Plaintiff, v. SEARS, ROEBUCK AND CO., Defendant.
• Court: U.S. District Court — District of Colorado

554 F. Supp. 327

Gary RAWSON, Plaintiff, v. SEARS, ROEBUCK AND CO., Defendant.

Civ. A. No. 81-K-1454.

United States District Court, D. Colorado.

January 10, 1983.

James A. Carleo, Pueblo, Colo., for plaintiff.

Robert S. Slosky, Rothgerber, Appel & Powers, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This matter is now before me on a motion for summary judgment by defendant, Sears, Roebuck and Co. In a previous memorandum opinion and order (January 27, 1982), 530 F.Supp. 776, I dismissed several claims for relief and allowed the plaintiff to proceed on the first, fifth, and tenth claims of his complaint. These remaining claims are based on allegations of age discrimination, which is a violation of C.R.S. 1973 § 8-2-116 (1st claim for relief), and promissory estoppel (5th and 10th claims for relief). Sears now contends that collateral estoppel precludes the plaintiff from asserting the issue of age discrimination, or in the alternative that the facts support a summary judgment in favor of the defendant. Sears also argues that as a matter of law defendant is entitled to a summary judgment on the promissory estoppel claims because the facts show no promise to the plaintiff, and in any case no reasonable reliance by the plaintiff. In addition to briefs submitted by both parties, the record includes numerous exhibits, depositions, and affidavits. The motion is now ripe for determination.

Plaintiff Gary Rawson was an employee of Sears, Roebuck and Co. from March, 1946 to March, 1979. He was the manager of the Sears store in Pueblo from 1965 until his termination in 1979. Shortly after he was discharged, Rawson filed a claim for unemployment compensation with the Colorado Division of Employment. The Division of Employment initially ruled to disqualify Rawson from receiving benefits for 12 weeks. He appealed and after an evidentiary hearing the decision was reversed by a Division referee who ordered a full award of benefits. Sears appealed this ruling and obtained another reversal from the Industrial Commission, who again disqualified Rawson from receiving 12 weeks of benefits. This ruling was based on a review of the record, and a finding of questionable job performance and a failure to properly administer employer procedures. Rawson petitioned the Commission for review of its order, and after it was affirmed by a final order of the Commission, he appealed to the Colorado Court of Appeals. The Court of Appeals, in affirming the Industrial Commission, determined there was sufficient evidence to support the conclusion that improper activity by the plaintiff caused his discharge. The date has now passed for timely appeal to the Supreme Court. The instant suit was filed in a Colorado District Court and removed to this court by Sears, Roebuck.

Both plaintiff and defendant rely on Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973) to determine whether the doctrine of collateral estoppel is applicable under these circumstances. Defendant also relies on Kremer v. Chemical Construction Corp., ___ U.S. ___, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Umberfield v. School District No. 11, 185 Colo. 165, 522 P.2d 730 (1974); and Colorado Springs Coach Co. v. State Civil Rights Comission, 35 Colo.App. 378, 536 P.2d 837 (1975), cert. denied 424 U.S. 948, 96 S.Ct. 1420, 47 L.Ed.2d 355 to support its argument that a final administrative order affirmed by the court of appeals must be given full faith and credit in the federal district court.

Pomeroy discusses a four part test which must be met before invoking the doctrine of collateral estoppel. The four elements include:

1) Was the issue decided in the prior adjudication identical with the one presented in the action in question?

2) Was there a final judgment on the merits?

3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?

4) Did the party against whom the plea is asserted have a full and fair opportunity to litigate the issue in the prior adjudication?

It is clear that elements two and three are satisfied in this case. However one and four present more difficult questions. I need not evaluate the hearing procedures to determine the due process issue of the fourth element because I find that the issue decided in the prior adjudication is not identical with the one before me in the instant suit. After reviewing the various findings of fact and orders issued throughout the administrative procedures and judicial review, I can find no mention whatsoever of the issue of age discrimination. It is evident from the Industrial Commission's Findings Of Fact And Order that the rulings were based solely on evidence concerning Rawson's conduct. Possible discrimination by Sears was never mentioned. The order states in part, "In reviewing the entire record, the Commission finds that the claimant was responsible for his own separation from employment due to questionable performance of his job and his failure to properly administer employer procedures." (exhibit C) The final order details the conduct of plaintiff more fully, but again never raises the issue of discrimination.¹ Judicial review concerned only whether the evidence presented was sufficient to sustain the findings. It could not consider other issues de novo. Because this cause of action does not meet the test set out in Pomeroy, the plaintiff is not collaterally estopped from bringing the action in this court. I therefore turn to defendant's alternative argument for summary judgment on the discrimination claim.

It is well settled that a motion for summary judgment can be granted only if there is no genuine issue of any material fact and the moving party is entitled...