OHIO LAWYERS WEEKLY
October 13 1997

Employee Estopped From Firing
New Hire Applicant Intended to work Until He Was 72

BY PATRICK M. MURPHY

An employer wrongfully fired an employee that had been hired just eight weeks earlier where the 62-year-old employee had first rejected the employment offer because he already had a secure job and then accepted the job for more money after the employer expressed satisfaction with the employee's stated intent not to retire until age 72, the 11th Ohio District Court of Appeals has ruled.

The employer claimed that it could not beheld liable because the plaintiff was an at-will employee who was terminated for poor performance.

But the Court of Appeals disagreed.

"The fact that [the employer's agent] told [the employee], 'fine, that's what I want' during the subsequent interview after [the employee] turned down [the employer's] original offer, while expressing his reluctance to disturb his current employment situation,” wrote Judge Donald R. Ford, "indicates that the [employer's] agent's representation was made with the intent to induce [the employee] to act on it."

The case is Patrick v. Painesville Commercial Properties, Inc., Lawyers Weekly No. 111-271-97.

The court of appeals had previously reversed the trial court's grant of summary judgment on the employee's promissory estoppel claim determining a genuine issue of material fact existed as to the nature of the discussions between the employee and the employer's agent.

Accordingly, on remand the case proceeded to trial to resolve factual issues concerning who said what to whom.

Plaintiff's counsel, Patrick J. Perotti of Painesville, complained to Lawyers Weekly that, at trial, defense counsel continually sought to escape the law of the case as established by the 11th District in the first appeal.

"The defense had taken the position all along that the court's first opinion could be ignored and was not binding," continued Perotti. "Luckily, the 11th District said no, that is not how we do things in Ohio."

Timothy P. Cannon, also of Painesville and counsel for the defendant, could not be reached for comment.

'That's What I Want'

The plaintiff, Robert Patrick, testified at trial that he had responded to the defendant's classified advertisement for a heating, ventilation and air conditioning maintenance (HVAC) position.

The plaintiff claimed that during an initial interview with the defendant's property manager, Lori Keener, he told her that he was satisfied in his current "secure" employment but that he might be interested in a job closer to home.

The plaintiff said that at this point Keener offered him a job at $10 an hour and he responded that he would think about it.

At a subsequent meeting, the plaintiff explained, he told Keener that he did not want to give up his current secure position. The plaintiff testified that at that point Keener offered to pay him $11 per hour and further inquired as to how long the plaintiff planned to work at his current job.

The plaintiff, who was 62 at the time, said that he told Keener that he planned to retire when he was 65. According to the plaintiff, Keener then proceeded to ask him how long he would plan on working for the defendant assuming that he took the job.

The plaintiff testified that he responded that he would work for the defendant until the age of 72. The plaintiff claimed that Keener then replied, "fine, that's what I want."

The plaintiff claimed that Keener then replied, "fine, that's what I want."

The plaintiff thereupon accepted the defendant's offer and quit his old job. Eight weeks later, the defendant terminated his employment.

While the defendant claimed that he was terminated due to poor work performance, Keener at trial testified that the plaintiff was fired because he was not needed any more. The court of appeals' opinion indicates that the defendant discharged the plaintiff after it contracted with an independent HVAC maintenance provider.

The plaintiff subsequently filed his complaint alleging that the defendant was promissorily estopped from discharging him. Upon remand from the plaintiff's appeal of the trial court's summary judgment order, a jury returned a verdict for the plaintiff.

The defendant appealed the denial of its motions for directed verdict and for judgment notwithstanding the verdict.

Promissory Estoppel

The 11th District began its analysis by emphasizing that the law of the case governing the appeal had been established by the court in the first appeal.

"We concluded in Patrick I that the summary judgment evidential materials contained "additional compelling factors constituting promissory estoppel" which together amounted to specific promises of job security upon which appellee could have reasonably relied.'..."

The court proceeded to identify those promissory estoppel factors as including, "appellee's age, sixty-two; his desire to find employment closer to his home appellee's fear of giving up the job security and salary he had with [his current employer]...."

The court further identified those circumstances which the defendant, through its agent, was aware of that bore most significantly on the plaintiff's claim.

The court listed those factors as being "appellant's awareness of [the plaintiff's circumstances] when they interviewed appellee and when appellee rejected appellant's initial offer; appellant's awareness...that appellee would probably retire at age sixty-five if he continued working for [his present employer], whereas if he were to work for appellant, assuming an acceptable salary level, he would work until age seventy-two."

The court then identified the pivotal issue presented to the trial court on remand. "We observed," wrote Ford, "that the criti-cerning appellant's working until age seventy-two were made, and which party made them."

The court's opinion outlined the elements for a claim of promissory estoppel as consisting of "(1) a clear and unambiguous promise; (2) reliance by the party to whom the promise was made; (3) the reliance is reasonable and foreseeable; and (4) the party relying on the promise must have been injured by the reliance."

The court of appeals concluded that the evidence presented at trial sufficiently supported each element of the plaintiff's promissory estoppel claim, finding the plaintiff's testimony with regard to the second interview compelling and adequate to defeat the defendant's motions.

"[D]uring the [second] interview, appellant initiated and concluded the age discussion, beginning with a query probing appellee's expected/desired retirement age, and ending with appellant responding affirmatively to appellee's answer," observed the court.

"The fact that Keener immediately followed appellee's statement about working until age seventy-two with the words 'fine, that's what I want," stated the 11th District, "was sufficient to allow appellee to believe that appellant was expressly avowing that appellee would work through age seventy-two."

"In our view, this sequence of events was adequate to indicate appellant's assent to a specific term of employment," continued the court. "Appellant's original question, viewed in conjunction with its final response, was promissory in nature. Moreover, Keener's phrase 'fine, that's what I want' was sufficiently clear and definite to reflect appellant's assent to a specific duration of employment for appellee."

Detrimental Reliance

The court of appeals also found sufficient evidence of the plaintiff's detrimental reliance on the defendant's promises to support the jury's verdict.

"First, he relinquished a secure, satisfactory employment relationship, which ostensibly would have continued through age sixty-five, to take another job, and then was deprived of that position," wrote the court. "Second, appellee departed his former employer with the expectation of earning seven years worth of additional income at his newly secured position. Third, appellee's prospects for re-employment subsequent to his termination were significantly hampered by his age...."

Given this evidence, the court of appeals concluded that the trial court properly submitted the case to the jury and declined to tamper with its conclusions.

"The existence of nonexistence of promissory estoppel essentially turns on the credibility of the witnesses," wrote Ford. "The jury in this case decided that appellee's version of the events was more credible than appellant's agent's recitation, as it was entitled to do. We see no reason to disturb that determination."