A Tale of Two Age Discrimination Cases in Central Ohio

Last week, a divided Franklin County Court of Appeals issued decisions in two different age discrimination cases.  One has been pending since 1999 and has been up and down the appellate process with a variety of results.  One has had several jury trials, while the other was a reversal of a bench trial.  In the first case, a nurse was terminated in 2009 for violating policies in the NICU at a local hospital after 21 years of service.  Although she appealed the case to an internal review board that recommended a lesser penalty, the president decided to sustain the termination of her employment.  The common pleas judge hearing the case ruled in her favor only to be reversed last week on appeal.  Mittler v. OhioHealth Corp., 2013-Ohio-1634.  In the second case, the plaintiff filed his lawsuit after his 1998 separation from employment.  The case was initially dismissed on summary judgment in 2001, was reversed on appeal, resulted in a jury verdict in 2002 awarding over $700,000 in compensatory (emotional distress) damages and $25M in punitive damages (as well as attorney fees), was reversed on appeal and so on.  More recently, the jury ruled against the plaintiff on his age discrimination claim, but last week a divided court of appeals remanded the case for yet another trial based on evidence it found was improperly excluded. Jelinek v. Abbott Laboratories, 2013-Ohio-1675.  This case is illustrative for a number of points, not the least of which is how unpredictable and how lengthy litigation can be.

To start with the briefer case, in Mittler, the plaintiff was fired following two incidents.  In one, she took a picture of a volunteer holding infant twins without first obtaining the permission of the babies’ mother (who later objected to volunteers holding her babies).  She had given a copy of the photo to the volunteer before obtaining permission and did not self-disclose her alleged HIPAA violation when the mistake came to light. She also mistakenly administered eye drops to the same infants and failed to submit an incident report. The HIPAA violation subjected the plaintiff to immediate termination.  On appeal, the problem review committee unanimous recommended the imposition of a less serious penalty.  However, the hospital’s president upheld the termination. 

The case was tried to the bench (instead of a jury) and the court found that the plaintiff would not have been terminated but for her age.  However, on appeal, the Court of Appeals concluded that she could not prove age discrimination because she could not show that she was replaced by a younger person.  According to the Court’s majority, no new employees were transferred to her shift after her discharge; her duties were merely redistributed among existing employees (some of whom were older than her).  The dissent noted that four older nurses had been terminated in two months and night shift nurses were hired and eight months later a day shift nurse was hired.  Therefore, the dissent agreed with the trial court that the plaintiff’s termination result in the hiring and retention of younger employees.

The plaintiff also could not show that younger employees were treated differently.  Her alleged comparators all reported their mistakes, unlike the plaintiff.  The dissent focused on alleged mistreatment of older nurses in other contexts.  In short, the dissent did not believe that the plaintiff would have been fired, but for her age.

The Jelinek case has had a long and tortured history.  The case was re-filed in 1999 alleging, among other things, that the plaintiff had been constructively discharged in 1998 on account of his age when he had been reassigned to an allegedly less desirable sales territory that included Gary, Indiana instead of to one that included Memphis, Tennessee which had been assigned to a younger peer who had previously worked in Chicago. The plaintiff had worked for the company for more than 30 years and was the oldest of the district managers when all of the district manager positions were eliminated.   The case was first dismissed on summary judgment in 2001, but was reinstated later that year on appeal (in an opinion written by Judge Tyack), on the grounds that the transfer to the smaller Indiana district instead of Tennessee could be discriminatory.  The Court also reinstated his claims for promissory estoppel and constructive discharge, but affirmed dismissal of the plaintiff’s claims for wrongful discharge in violation of public policy and retaliation.  The court denied the plaintiff’s motion for reconsideration and the Supreme Court declined to take his appeal.

Back at the common pleas court, the case proceeded to a jury trial in 2002.  Although the jury found for the employer on the promissory estoppel and constructive discharge claims, it found that the plaintiff had been discriminated against on account of his age, awarded him $700,000 in compensatory damages (for emotional distress), attorney fees, and $25,000,000 in punitive damages.  (This made a lot of news).   After motions for JNOV (judgment notwithstanding the verdict), a new trial and remittitur, the judge made a number of conditional orders in 2003.  First, he granted the defendants’ jnov motions.  Should that be reversed on appeal, he granted the defendants’ motion for a new trial.  Should that also be reversed, he denied the defendants’ motion for a new trial unless the plaintiff rejected a remittitur reducing the amount of compensatory damages to $100,000 and punitive damages to $4,000.000.  The trial judge also denied the plaintiff’s request for attorney fees.

On appeal, the case was remanded for another new trial on the age discrimination claim in 2005.  The Court agreed that there was enough potential of evidence of age discrimination to support the jury’s verdict and, therefore, the trial court had erred in granting the jnov motion.  However, there was insufficient evidence of intolerable working conditions necessary to show a constructive discharge.  The Court also concluded that it was within the trial court’s discretion to condition the grant of a new trial.

Again back at the common pleas court, there were two attempts at new jury trials, but both resulted in mistrials.  That judge then recused himself in 2008 and the case was assigned to a new judge who “issued a decision stating that 'the scope of the new trial is confined to the age-discrimination claim and excludes a retrial of the constructive-discharge claim, including facts or allegations that relate to that claim.'"  The plaintiff attempted to force the trial judge to permit him to again try his constructive discharge theory and filed a mandamus action for force the trial judge to do so.  The Court of Appeals agreed in 2010 that he had not prevailed on the constructive discharge as a separate claim in the last jury trial and the court had previously overruled his only objection to that verdict.   Therefore, the trial court had not manifestly erred.  On appeal to the Ohio Supreme Court, the decision denying the mandamus was affirmed near the end of 2010.  The plaintiff remained free to pursue his argument on appeal from any future verdict based on the trial court’s ruling, just as every party has a right to do.

The case was again tried to a jury in 2011 and this time the jury ruled against the plaintiff and in favor of the defendants.  Prior to deliberations, the trial court had directed a verdict for the defendants on the issue of punitive damages. The plaintiff again appealed and the appellate court again reversed, but this time based on evidentiary rulings against the plaintiff.   In ruling on pre-trial motions in limine, the plaintiff was precluded from introducing evidence concerning his prior claims that had been dismissed:  promissory estoppels, retaliation, wrongful discharge in violation of public policy and constructive discharge.  The Court again overruled the plaintiff’s objection to the exclusion of all evidence related to his constructive discharge theory.   The Court also affirmed the trial court’s directed verdict on the issue of punitive damages.

 According to the Court’s opinion from last week (coincidentally, also written by Judge Tyack),  the plaintiff “was precluded from referring to the crime rate in Gary, Indiana, the quality of the Lake County territory, and any testimony referring to a memorandum allegedly saying that all employees over 50 years old with 20 years of service should take early retirement.”  This evidence had previously been introduced to support the plaintiff’s defunct constructive discharge claim.  However, the plaintiff argued that he should still be permitted to introduce this evidence to explain why this territory was undesirable and why the employer should not be believed in contending that it was equivalent to the territory offered to younger peers.

 

Evidence that the territory was "collapsed" from twelve counties to two shortly before it  was offered to [the plaintiff] addresses both the issue of pretext, and the reason why [the plaintiff] was reluctant to accept the territory. This pretext evidence was critical to [his] ultimate burden of proof and therefore its exclusion was highly prejudicial. By taking the extreme position that any mention of the quality of the territory related only to constructive discharge, the trial court abused its discretion.

The trial court also excluded testimony by a former salesperson that the retired vice-president of sales had discussed with him in 1999 a memorandum written in 1997 that employees over the age of 50 with over 20 years of service (like the plaintiff) should retire.  No such memorandum was ever produced as evidence and the company denied that it even existed.  The defendants objected to this testimony as hearsay because the vice president had retired the year before the alleged conversation.  However, the plaintiff argued and the Court agreed that it could constitute evidence of an admission by a party-opponent because the vice-president was an individual defendant at the trial. “Since the alleged memorandum was never produced, the jury can decide how much weight, if any, to give to [the vice president’s] admission.”

 There were some other interesting evidentiary issues.  Typically (and was true in this case), it is the plaintiff and not the defendant which seeks to introduce evidence about the other party’s wealth.  In this case, however, because the plaintiff’s constructive discharge claim had been rejected in prior proceedings, his only claim for damages for related to the emotional distress of losing his substantial income and having bills to pay.   The defendants showed that he was a millionaire at the time he resigned and had just bought his wife a Mercedes automobile.  They also showed pictures of his home to the jury.  The Court found it was within the trial court’s discretion to allow this evidence because the plaintiff’s:

 

financial situation was at issue because his claim for compensatory damages was based entirely on emotional stress caused by his financial concerns.  [The plaintiff] testified that he had sleepless nights, tossing and turning, worrying about how much money he had in the bank, that he was very stressed about money, and he was concerned about making ends meet.

The defendants argued (and the jury was instructed) that the plaintiff’s position was eliminated in a reduction in force.  However, the plaintiff was denied discovery on the RIF and precluded from introducing statistics.  The company argued that statistics were irrelevant since he had not alleged a disparate impact theory. The Court overruled the plaintiff’s objection at this point as moot, but ordered that “if, when the case is retried, [the company] intends to argue that the elimination of  [the plaintiff’s] position was part of an overall reduction in force in order to receive the heightened jury instruction, [he] should be allowed to rebut [its] claim by means of statistical evidence.”

 The Court agreed that the plaintiff had failed to present sufficient evidence to request the jury to rule on punitive damages.  At best, his evidence showed that there may have been a lack of formal EEO instruction, “but to infer that [the company] exhibited a conscious disregard for [his] right to be free from age discrimination requires a leap of logic not supported by the evidence.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: A Tale of Two RIFS With Different Endings

This week, the Sixth Circuit released two opinions in two days addressing claims that the plaintiff was selected for a reduction in force in violation of federal employment laws. In one, the Sixth Circuit affirmed summary judgment for the employer and in the other it reversed it and sent the case back for trial. In one case the plaintiff claimed she was selected for the RIF because of her age; in the other the plaintiff claimed that she was selected because of medical leave. In one case, the managers may have violated the employer’s RIF policy which they claimed they were following; in the other the managers likely violated the employer’s RIF policy, which they blamed on ignorance. This comparison highlights how even the slightest difference in facts can lead to much different results.

In the first case, Cutcher v. KMart Corporation, No. 09-1145 (6th Cir. 2010), six employees were selected to be laid off from a particular store as part of a nationwide layoff. According to the Court’s opinion, the plaintiff was selected for the RIF a few weeks after beginning FMLA leave and her duties distributed among the remaining sales associates. In the selection process, the employer considered her most recent performance evaluation and then conducted an updated evaluation (measuring the same competencies as the annual evaluations and containing a space for additional comments). The plaintiff had received an “exceeds expectations” or “exceptional” overall evaluation rating in the prior three years and then began a six-week medical leave involving surgery a few days after her last performance evaluation. A few weeks into her medical leave, the employer announced the RIF and selected plaintiff and five other employees to be laid off.

The employer’s updated evaluation form prohibited managers from considering a medical leave of absence as a factor, and required the manager to specifically explain if the employee had been downgraded since the last annual evaluation. It also required managers to base the updated evaluations on objective, observable performance. Notwithstanding these instructions, the plaintiff’s managers downgraded her updated performance evaluation rating even though they admittedly could not identify any performance issues in the 20 days between her annual evaluation and the updated evaluation conducted for the RIF. Rather, they explained that they felt her prior evaluation had been inflated and she possessed undocumented poor customer service and teamwork skills. In addition, they mentioned her poor customer service and teamwork skills and wrote “LOA” in the comments section when asked to explain on the form the difference in the ratings. Nonetheless, the managers denied that the plaintiff’s medical leave of absence affected their decision and claimed that the notation was simply to remind them to delay the date of her layoff. The depressed evaluation rating the plaintiff received after beginning her medical leave put her in the bottom six of the employees’ ranking and caused her to be selected for layoff.

In reversing the summary judgment which had been entered for the employer, the Court noted that the unique facts of this case created factual dispute on the plaintiff’s FMLA claims (for interference with her medical leave and retaliation for taking medical leave) which could only be resolved by a jury in that a jury could disbelieve the employer’s explanation and find it pretextual based on the circumstantial evidence that had been provided:

The jury could also conclude that [Plaintiff’s] termination was based on her FMLA leave, because none of Kmart’s asserted reasons for her lower RIF appraisal scores were documented, and Kmart admitted that nothing in her performance changed during the twenty-day period between her last annual appraisal and the RIF appraisal. Although Kmart contends that variations between annual appraisal scores and the RIF appraisal scores were common, that [Plaintiff’s direct supervisor] inflated the annual appraisal scores, and that [Plaintiff’s] performance had been declining, a reasonable jury could reject Kmart’s contentions. Given [Plaintiff’s] prior annual appraisal scores, the minimal amount of time that passed between her most recent annual appraisal and the RIF appraisal, Kmart’s admission that [Plaintiff’s] performance did not change during that short period of time, the inclusion of the “LOA” notation on the Associate Performance Recap Form, and the lack of any documented evidence demonstrating a prior concern with her job performance, a jury could infer that her leave status impacted her RIF appraisal ratings, thus leading to her termination.

. . ..

[Plaintiff] also argues—and the jury could conclude—that the same circumstantial evidence supporting the causal connection between her FMLA leave and her termination demonstrates that Kmart’s proffered non-discriminatory reason was pretextual. Specifically, the following facts could show pretext: the temporal proximity between her leave and termination; the lack of documentation to corroborate her lower RIF appraisal scores; the lack of temporal proximity between the events that Kmart alleges justified her lower RIF appraisal scores and her termination; her documented favorable work history; the discrepancy between her prior annual appraisals and her RIF appraisal, and the “LOA” notation next to [Plaintiff’s] name on the Impacted Associates Form.

In the second case, Schoonmaker v. Spartan Graphics Leasing, No. 09-1732 (6th Cir. 2010), the employer laid off the two oldest employees on the third shift (both over 55) and kept the third employee, age 29. One of the employees was admittedly laid off because she was less than a year from retirement. Even though the plaintiff had more seniority than the younger employee who was retained, and even though the younger employee had been disciplined in the prior year for poor attendance, management felt that he got along better with the two supervisors than the plaintiff did. Management also felt the younger employee was more productive, but never documented that belief.

The Company’s RIF policy favored retaining the plaintiff over the younger employee and provided:

Business circumstances may result in a temporary or permanent reduction in the size of the work force. Making such decisions is not easy. However, the Company will attempt to identify employees who are the most qualified to perform the work available based on qualifications, productivity, attendance, general performance record and other factors the Company considers relevant in each case. When the Company considers these factors to be relatively equal, decisions will be guided by relative length of service.

Summary judgment was granted to the employer because the plaintiff could not show that she had been replaced, as the remaining, younger employee assumed her former duties in addition to continuing to perform his own regular duties. Nonetheless, the Court of Appeals recognized that the plaintiff might be able to show that she had been replaced if she could show that her qualifications were superior to the younger employee who had been retained. However, her subjective belief of superior performance and her admittedly better disciplinary history were insufficient to meet this prima facie burden. Moreover, although she would arguably be entitled to rely on statistical evidence to satisfy her burden (in that the two oldest employees of the three person department were laid off), the Court found the sample size to be too small to be statistically significant. While the district court believed that it would have been relevant if management had deliberately ignored the RIF policy; their ignorance of the policy was insufficient to meet the plaintiff’s burden of proof.


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Appeals Court: Nothing is Reasonably Reliable In a RIF or Public Litigation.

Last month, the Franklin County Court of Appeals affirmed the dismissal of a defamation and wrongful discharge suit brought by the former head of security for Capital University whose job was eliminated in 2006 during a budget crisis. Woods v. Capital Univ., No. 2009-Ohio-5672. Although the 54-year old plaintiff had been told in writing during his exit interview that his performance played no role in the elimination of his position (and he had received nothing but promotions prior to his termination), the university’s attorney was quoted in two local newspapers as attributing part of the termination decision to “job performance issues.” His responsibilities were divided and his public safety management responsibilities were given to a 28-year old safety officer. Nonetheless, the Court affirmed dismissal because the allegedly defamatory statements related to a matter of public concern, which required proof of actual damages or actual malice, and the redistribution of duties to existing employees cannot support an inference of age discrimination. Finally, his promissory estoppel claims were dismissed because the three verbal promises of continued employment were contracted by the terms of his written contract with the university.

According to the Court’s opinion, the plaintiff was eight years away from retiring from another college when he was hired by Capital to reorganize its public safety department. When he expressed reluctance to leave a secure position so close to his retirement age – particularly with friction that was likely to develop during the planned reorganization, he was assured by the VP/Treasurer that he would be employed at least eight years to retire at Capital. However, his offer letter only promised one year of employment. He was promoted the following year and given two more one-year appointments. When rumors surfaced about a possible budget deficit, he again sought reassurance about his job security and was again assured by the VP/Treasurer that his job was safe. When the VP/Treasurer was then fired, he sought and obtained similar assurance from the President, who then shortly thereafter left.

When an impending $12.5M deficit was revealed, a committee examined all positions and recommended the elimination of 72 positions, including that of the plaintiff. His termination letter informed him that his job was eliminated because of the budget difficulties and not because of his job performance. His public safety duties were reassigned to a 28-year old officer and his auxiliary duties to other employees. He then filed a lawsuit for $4.6M against Capital for age discrimination and promissory estoppel. The lawsuit received publicity in the local media and Capital’s attorney was quoted in two newspapers as stating that the plaintiff had been let go because of the budget difficulties and “job performance issues.” The plaintiff amended his claims to include the allegedly defamatory statements by the attorney. The trial court granted summary judgment to the defendants and the plaintiff appealed.

Defamation Claim

The Court of Appeals addressed the defamation claim first and found the attorney’s statement about the plaintiff being fired in part because of his job performance to be defamatory on its face (or defamation per se) since it had the tendency to hurt plaintiff’s career and ability to find another job. The Court rejected the defense attempt to

characterize this statement as vague and contend that if it is defamatory at all, it is only defamatory per quod. We disagree. No employer fires an employee for good job performance. The only reasonable reading of [the attorney’s] statement is that Capital terminated [the plaintiff’s] employment for two reasons, and one of those reasons was [the plaintiff’s] poor job performance. Thus, the statement in and of itself tends to injure [the plaintiff] in his occupation as any employer would hesitate before hiring a potential employee who underperformed in his previous job. Such a statement is defamatory per se.

Typically, damages in such situations are presumed without proof or pleading. However, in this case, the Court found the statement to also have limited protection from the First Amendment. Because the plaintiff worked for a private college, he was not a general public figure. Moreover, the fact that he filed a lawsuit – by itself – did not render him a limited purpose public figure. However, the fact that he sought $4.6M in damages from a significant private institution which was having very public budget difficulties rendered the issue of the reduction in force and his lawsuit a matter of public concern – as evidenced by the significant media coverage. Therefore, the claim was governed by the United States Supreme Court’s decision in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 345-46, which concluded that:

in such cases, the states could define for themselves an appropriate standard of liability, so long as they did not impose liability without fault. Gertz, 418 U.S. at 347. Subsequently, Ohio adopted the ordinary negligence standard as the standard of liability for actions involving a private individual defamed in a statement about a matter of public concern. Landsdowne v. Beacon Journal Publishing Co. (1987), 32 Ohio.St.3d 176, 180. In addition to requiring an element of fault, the Gertz court also limited the type of damages recoverable in defamation cases involving private individuals and statements regarding a matter of public concern. Given the constitutional command of the First Amendment, . . . the states could no longer permit recovery of presumed or punitive damages, at least when liability was not based upon a showing of actual malice. Gertz, 418 U.S. at 349, . . . Thus, in Ohio, a plaintiff must prove either: (1) ordinary negligence and actual injury, in which case he can receive damages for the actual harm inflicted; or (2) actual malice, in which case he is entitled to presumed damages.

Thus, the plaintiff was required to show actual malice or actual injury (i.e., “out-of-pocket loss, impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering”). However, the plaintiff’s testimony that he felt that his job hunt was impaired by “google searches” of the attorney’s statement was too speculative to support proof of actual injury. Moreover, he failed to introduce any evidence that the attorney knew that his statement was false at the time it was made. Therefore, summary judgment on his defamation claim was upheld.

Retaliation

The plaintiff also claimed that the attorney’s defamatory statement was made in retaliation for the plaintiff’s consultation with an attorney following his termination. However, the Court refused to infer causation (i.e., the defamatory statement from the consultation with counsel) based on the passage of two months between the demand letter from the plaintiff’s attorney and the newspaper accounts repeating the defamatory statement. Because there was no other evidence of causation or proving a link between the two events, the Court affirmed summary judgment.

Age Discrimination

Typically, a discrimination claim requires that the plaintiff show that he was replaced by someone outside the protected class. The Court noted that this is extremely difficult, if not impossible, to show when the plaintiff was fired in a reduction in force:

When a discharge results from a work force reduction, an employee is not replaced, instead his position is eliminated. Barnes v. GenCorp Inc. (C.A.6, 1990), 896 F.2d 1457, 1465. Logically, then, a plaintiff discharged as part of a work force reduction cannot offer evidence that he was replaced by a substantially younger person to satisfy the fourth element of the prima facie case. Moreover, even if such a plaintiff demonstrates that his discharge permitted the retention of substantially younger persons, no inference of discriminatory intent can be drawn. Id. In the context of a work force reduction, the discharge of the plaintiff and retention of a substantially younger employee is not "inherently suspicious" because a work force reduction invariably entails the discharge of some older employees and the retention of some younger employees. Brocklehurst v. PPG Industries, Inc. (C.A.6, 1997), 123 F.3d 890, 896. Permitting an inference of intentional discrimination to arise from the retention of younger employees "would allow every person age 40-and-over to establish a prima facie case of age discrimination if he or she was discharged as part of a work force reduction." Barnes at 1465.

{¶57} Consequently, when a plaintiff's position is eliminated as part of a work force reduction, courts modify the fourth element of the prima facie case to require the plaintiff to " 'com[e] forward with additional evidence, be it direct, circumstantial, or statistical, to establish that age was a factor in the termination.' " Kundtz v. AT & T Solutions, Inc., 10th Dist. No. 05AP-1045, 2007-Ohio-1462, ¶21 . . . The purpose of this modified requirement is to ensure that, in work force reduction cases, the plaintiff has presented evidence to show that there is a chance that the work force reduction is not the reason for the termination. Asmo v. Keane, Inc. (C.A.6, 2006), 471 F.3d 588, 593 . . .

Nonetheless, the plaintiff can also show discrimination if he was in fact replaced instead his duties being eliminated, consolidated or distributed among a number of different people:

An employee is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge. However, a person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff's duties.

In this case, the plaintiff’s 2004 promotion involved him assuming certain duties outside the public safety department. When his position was eliminated in 2006, those duties were reassigned and only his public safety duties were given to the 28-year old officer. The reassignment of his auxiliary duties were more than cosmetic or superficial duties. Thus, there was sufficient evidence to show that his position was eliminated and his duties distributed in a genuine reduction in force. Therefore, without additional evidence or direct evidence of age discrimination, summary judgment on this claim was affirmed.

Promissory Estoppel.

Plaintiff brought this claim based on the three separate promises of job security which he received both before and after he was hired by Capital. As explained by the Court:

Promissory estoppel provides an equitable remedy for a breach of an oral promise, absent a signed agreement. Olympic Holding Co. v. ACE Ltd., 122 Ohio.St.3d 89, 2009-Ohio-2057, ¶40. In order to succeed on a claim for promissory estoppel: "The party claiming the estoppel must have relied on conduct of an adversary in such a manner as to change his position for the worse and that reliance must have been reasonable in that the party claiming estoppel did not know and could not have known that its adversary's conduct was misleading." . . . The elements necessary to prove a claim for promissory estoppel are: (1) a clear, unambiguous promise, (2) the person to whom the promise is made relies on the promise, (3) reliance on the promise is reasonable and foreseeable, and (4) the person claiming reliance is injured as a result of reliance on the promise.

The fatal flaw in his argument, however, is that he signed written contracts which promised him only employment for a year at a time. Therefore, his reliance on the oral promises was not reasonable under the circumstances:

[C]ourts cannot enforce an oral promise in preference to a signed writing that pertains to exactly the same subject matter, but has different terms. Ed Schory & Sons at 440. Thus, "[p]romissory estoppel does not apply to oral statements made prior to the written contract, where the contract covers the same subject matter.

The Court rejected the plaintiff’s argument that his employment letters were not binding contracts, but only acknowledgment of certain terms. The Court also rejected the argument that the plaintiff’s reliance on promises made during the budget crises were reasonable under the circumstances. In any event, the plaintiff did not provide any evidence that he relied on the promises to his detriment since there was not evidence that he rejected a job offer in reliance on the promises. On the contrary, despite the promises being made to him during the budget crises, he promptly began searching for another job and submitting his resume to other employers.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-5672.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.