# Pullar v. UpJohn Health Care Services, Inc.

> Ohio Court of Appeals · November 19, 1984 · 21 Ohio App. 3d 288

URL: https://www.frixlaw.com/law-library/cases/3759428

## Case

- **Full name:** Pullar, Appellant, v. UpJohn Health Care Services, Inc. Et Al., Appellees
- **Court:** Ohio Court of Appeals
- **Decided:** November 19, 1984
- **Citations:** 21 Ohio App. 3d 288; 21 Ohio B. 433; 488 N.E.2d 486; 41 Fair Empl. Prac. Cas. (BNA) 457; 1984 Ohio App. LEXIS 12683
- **Precedential status:** Published
- **Opinion:** Dissent by ParRINO
- **Judges:** Patton, Corrigan, Parrino
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3759428

## How later opinions describe it (automated extraction)

- applying principles of administrative collateral estoppel to fact-finding of Unemployment Compensation Board of Review

## Opinion text

*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 adminstrative 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3759428. Public record. Not legal advice.