Court Recognizes Limited Exception to Time Limit to Notify Employer of Retaliatory Discharge Claim
Cites Employer’s Implicit Duty to Notify Employee of Firing Within ‘Reasonable Time’ After Discharge
In a decision announced today, the Supreme Court of Ohio recognized a limited exception to the general rule that a terminated employee must notify his employer of his intent to file a retaliatory discharge lawsuit under R.C. 4123.90 within 90 days after the date of the employee’s termination.
The court’s majority opinion, authored by Justice Robert R. Cupp, held that trial courts may delay the start of the 90-day notification period in a retaliation case if they find that a fired employee did not become aware that he had been fired “within a reasonable time” after the employer’s action terminating his employment.
Keith Lawrence, an employee of the city of Youngstown, was suspended from his job duties without pay on January 7, 2007. Two days later, on January 9, the city placed a notice in Lawrence’s personnel file indicating that his employment had been terminated. The file contains a copy of a letter from the city addressed to Lawrence and dated January 9, 2007, stating that Lawrence had been terminated from his city job as of that date. The letter indicates that it was sent to Lawrence, to various city offices and departments and to Lawrence’s union. The city did not send a copy of the letter to Lawrence by certified mail or present it to him in person.
Lawrence subsequently denied that he had received a copy of the January 9 letter, and asserts that he did not learn that he had been discharged until Feb. 19, 2007, almost six weeks after the personnel action terminating his employment.
On April 17, 2007, Lawrence’s attorney sent a letter notifying the city that he intended to file suit alleging that his firing was retaliation for his earlier filing of workers’ compensation claims in violation of R.C. 4123.90, a state law that prohibits an employer from discharging or taking any other negative employment action against an employee because of a workers’ compensation claim. Lawrence filed suit against the city in the Mahoning County Court of Common Pleas on July 6, 2007, alleging retaliation under R.C. 4123.90 and also asserting a claim of racial discrimination that is not at issue in this case.
The city moved for summary judgment on Lawrence’s retaliation claim, arguing that the trial court lacked jurisdiction to hear that claim because Lawrence had not complied with a requirement of R.C. 4123.90 that an employee must give notice to his former employer “within the 90 days immediately following the discharge ... ” that he intends to file a retaliation claim. The court granted summary judgment in favor of the city, holding that the 90-day notification period had begun to run on January 9, 2007 and had expired on April 9, 2007, eight days before Lawrence notified the city of his intent to sue.
Lawrence appealed, arguing that his April 17, 2007 notification letter was sent within the 90-day time limit because the notification period did not begin to run until the date he became aware that he had been fired, which he claimed was Feb. 19, 2007. The Seventh District Court of Appeals affirmed the ruling of the trial court regarding when the 90-day notification began to run, but certified that its decision on that issue was in conflict with earlier decisions of the Sixth and Eleventh District Courts of Appeals. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.
Writing for the majority in today’s decision, Justice Cupp pointed to a general provision of the state workers’ compensation statute, R.C. 4123.95, which mandates that the various sections of that law “shall be liberally construed in favor of employees.”
With regard to the notification period at issue in this case, Justice Cupp wrote: “The 90-day employer-notice provision of R.C. 4123.90 gives the employee a relatively small window of time to provide to the employer notice that the employee will pursue a claim for retaliatory discharge based on a workers’ compensation filing. Obviously, an employee cannot contemplate sending such a letter until the employee knows that he or she has been discharged. ... Usually, an employer will make a good faith effort to communicate the fact of the employee’s discharge to the employee when it occurs, or within a reasonable time thereafter. The employer commonly will use a method like personal notification, hand delivery of notice, or a certified letter, all of which are designed to effectively communicate notice reasonably promptly. An employee would expect to be informed of the employer’s decision to discharge the employee within a reasonable time after that decision.”
“We therefore conclude that R.C. 4123.90, when viewed in conjunction with R.C. 4123.95 and read in pari materia (reading both statutes together), places an implicit affirmative responsibility on an employer to provide its employee notice of the employee’s discharge within a reasonable time after the discharge occurs in order to avoid impeding the discharged employee’s 90-day notification obligation under R.C. 4123.90. ... Our conclusion that an employer should provide reasonably prompt notice of a discharge to an employee for R.C. 4123.90 purposes does not burden employers and is not unreasonable. Some employees who allege workers’ compensation retaliation, for example, may not be at their workplace due to work-related injuries for considerable periods. Without reasonably prompt notice of discharge, an affected employee may have unwarranted difficulty providing the required notice letter to the employer within the 90-day notice period, or the 90-day time period may already have elapsed before the employee became or should have become aware of the employee’s discharge.”
“Reading R.C. 4123.90 and 4123.95 in pari materia, we find it evident that R.C. 4123.90 anticipates the employee’s awareness of the employee’s discharge. Consequently, a limited exception to the general rule that the 90-day period for employer notice of an alleged R.C. 4123.90 violation runs from the employee’s actual discharge is in keeping with the statute’s purpose. The prerequisites for this exception are that an employee does not become aware of the fact of his discharge within a reasonable time after the discharge occurs and could not have learned of the discharge within a reasonable time in the exercise of due diligence. When those prerequisites are met, the 90-day time period for the employer to receive written notice of the employee’s claim that the discharge violated R.C. 4123.90 commences on the earlier of the date that the employee became aware of the discharge or the date the employee should have become aware of the discharge.”
Applying today’s ruling to the Seventh District’s decision in this case, the court noted that the court of appeals did not address several other assignments of error raised by Lawrence because that court found that Lawrence’s failure to meet the 90-day notification requirement rendered the other issues moot. Accordingly, the court remanded the case to the Seventh District for consideration of Lawrence’s unaddressed assignments of error.
Justice Cupp’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton and Yvette McGee Brown.
Justice Judith Ann Lanzinger entered a separate opinion, joined by Justice Paul E. Pfeifer, in which she concurred in the majority’s judgment, but disagreed with its adoption of a “limited exception” to commencement of the 90-day notice period on an employer’s stated date of termination. Justice Lanzinger wrote that in her view an employee is not “discharged” within the meaning of R.C. 4123.90 until the employee becomes aware of the termination, and therefore the court should have adopted a straightforward “discovery” rule under which the 90-day notification period for a retaliation claim under that statute begins to run on the earliest date the employee “knew or should have known” of the discharge.
Justice Terrence O’Donnell dissented, noting that the plain language of R.C. 4123.90 requires that a fired employee claiming retaliation must notify his employer “within the ninety days immediately following the discharge ...”, and citing decisions in which three Ohio court of appeals districts and the U.S. Sixth Circuit Court of Appeals have held that the statutory notification period begins on the date of the employer’s personnel action terminating an employee.
Justice O’Donnell wrote that in his view the exception to this rule crafted by the majority in today’s decision is not warranted “because a reasonably diligent employee should be able to discover an adverse employment action and meet the statutory requirements of the 90-day notice period, even if it commences from the date of discharge. This is a common sense starting point for all claims and eliminates the limitless number of exceptions that will be created by the majority decision crafted today to alter this well thought out legislative policy. We ought not legislate. Our role is simply to interpret and decide, not to find ways to reach conclusions we like or to avoid harsh results. And, as here, when we do not follow the law, we have no law.”
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2011-0621. Lawrence v. Youngstown, Slip Opinion No. 2012-Ohio-4247.
Mahoning App. No. 09 MA 189, 2011-Ohio-998. Judgment reversed and cause remanded.
O’Connor, C.J., and Pfeifer, Lundberg Stratton, Lanzinger, Cupp, and McGee Brown, JJ., concur. O’Donnell, J., dissents.
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