From the Listserve (Continued from page 26)
It is a written agreement which voids sev- eral provisions for future compensation if the employee is terminated for gross misconduct. The guy gets fired and the boss tells him it is for “gross misconduct”. Unemployment is considering the issue of gross misconduct. While I think there is minimal risk at the moment that the hearing officer will conclude gross mis- conduct, I can dismiss the appeal and avoid the finding. My concern is whether the finding at the administrative level could be considered res judicata or col- lateral estoppel in the subsequent breach of contract action. I have been unable to find a case either way so thought it was worth a query.
From: Rick Claxton:
rclaxton@garsonlaw.com: Had this issue a few years ago in a case
in US District Court. My client was fired, applied for unemployment, but didn’t bother going to the appeal hearing be- cause, frankly, he was a highly compensated executive and felt it was em- barrassing. The employer presented a one-sided and substantially false version of the facts and the examiner found my client had been terminated (for cause. By the time I got the wrongful termination case, there was no possibility of appealing the unemployment determination. The defense sought to offer the DLLR ruling to establish collateral estoppel and I filed a motion in limine which I have attached. Feel free to use what you want, but keep in mind that the research needs to be up-
dated. (By the way, the motion was suc- cessful in my case and I ended up getting a very good verdict.)
From: Bruce Bender:
Bmb@vawlaw.com: Dennis, there is a specific case from the 4th Circuit that states in no uncer- tain terms, decisions by unemployment are not res judicata or collateral estoppel for future litigation regarding an employ- ment contract or litigation related to discrimination. It was written by Judge J. Harvey Wilkinson. I can’t remember the case but it was from the early to mid 1980’s. If you can’t find it, I can locate it for you. Jogged my memory. I think the case is Ross v. Comsat from the 4th
Circuit.
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