Butler v. Cleveland Christian Home

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[Cite as Butler v. Cleveland Christian Home, 2005-Ohio-4425.] COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 86108 SARAH BUTLER Plaintiff-Appellant -vsTHE CLEVELAND CHRISTIAN HOME Defendant-Appellee Date of Announcement of Decision: : : : : : : : : : ACCELERATED DOCKET JOURNAL ENTRY AND OPINION AUGUST 25, 2005 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. CV-549888 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellant: RICHARD N. SELBY, II, ESQ. 60 South Park Place Painesville, Ohio 44077 For Defendant-Appellee: MARK S. FLOYD, ESQ. SARAH C. FLANNERY, ESQ. 3900 Key Center 127 Public Square Cleveland, Ohio 44114 JAMES J. SWEENEY, P.J.: {¶1} This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1. {¶2} Plaintiff-appellant Sarah Butler ( Butler ) appeals from the trial court s decision that granted defendant-appellee The Cleveland Christian Home s ( Cleveland Christian Home ) motion to dismiss the complaint for retaliation and wrongful discharge in violation of public policy. The Cleveland Christian Home argued that Butler s claims were untimely and failed to state a claim upon which relief could be granted. For the reasons that follow, we affirm. {¶3} Butler commenced this action on December 15, 2004, alleging her termination was in violation of R.C. 4123.90 and public policy. Butler stated she was terminated on June 17, 2004.1 The Cleveland Christian Home moved to dismiss the action on January 24, 2005. the motion. On February 10, 2005, the trial court granted On March 11, 2005, Butler filed her notice of appeal asserting one assignment of error with two issues for our review. {¶4} I. The trial court erred in dismissing plaintiff s complaint. {¶5} A. Plaintiff s statutory claim is not barred by the applicable statute of limitations. 1 For purposes of a motion to dismiss, all factual allegations in a complaint are presumed true. Royce v. Smith (1981), 68 Ohio St.2d 106, 108. {¶6} Butler argues that the statute of limitations contained in R.C. 4123.90 commenced on the date she received notice of her termination, rather than the date on which notice of termination is sent. The law is clear, however, that the 180-day statute of limitations set forth in R.C. 4123.90, commences on the effective date of the employee s termination employee learns of the termination. rather than the date the Jackson v. Central Ohio Transit Auth. (Oct. 9, 1986), Franklin App. No. 86AP-459; Gleich v. J.C. Penney Co. (Aug. 8, 1985), Franklin App. No. 85AP-276; accord Potelicki v. Textron, Inc. (Oct. 21, 2000), Cuyahoga App. No. 77144 ( Ohio courts have refused to apply the discovery rule in R.C. 4123.90 cases. ) {¶7} O Rourke v. Collingwood Health Care, Inc. (April 15, 1988), Lucas App. No. L-87-345, relied on by Butler, is not applicable. In O Rourke, the effective date of termination post- dated the notice of termination by three days.2 O Rourke commenced the action within 180 days of the effective date of termination. {¶8} Here, the effective date of Butler s termination was June 17, 2004; coincidentally termination letter. the same date that appears on her Butler did not commence this action within the 180-day statute of limitations. 2 Employer sent a letter dated March 28, 1986, to appellant [employee], notifying her that she was discharged, effective April 1, 1986. O Rourke, supra. {¶9} B. Plaintiff s claim for wrongful discharge in violation of public policy states a claim upon which relief may be granted. Butler s wrongful discharge claim is based on the {¶10} public policy set forth in Ohio s workers compensation statutes, specifically, the prohibition against discriminating employees who file workers compensation claims. against Assuming, without deciding, that Butler could maintain a common-law cause of action on this basis, she may do so only if she satisfied all applicable statutory requirements, limitations. including the 180-day statute of Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, paragraph three of the syllabus; see, also, Jakischa v. Cent. Parcel Express, 106 Fed. Appx. 436, 440-441 (6th Cir. 2004), citing Stephenson v. Yellow Freight Systems, Inc. (Oct. 26, 1999), Franklin App. No. 99AP-77. Butler did not satisfy all the requirements set forth in the statutory law that gives rise to the public policy of her wrongful discharge claim. {¶11} Butler s sole assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MARY EILEEN KILBANE, J., and CHRISTINE T. McMONAGLE, J., CONCUR. JAMES J. SWEENEY PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1).

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