[Cite as Leonard v. Res. Network, 2013-Ohio-1192.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98975



                                    BRIAN LEONARD
                                                     PLAINTIFF-APPELLANT

                                                      vs.


                           THE RESERVE NETWORK
                                                     DEFENDANT-APPELLEE




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-780084

        BEFORE: Kilbane, J., Stewart, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                           March 28, 2013
APPELLANT

Brian Leonard, pro se
2197 East 68th Street
Cleveland, Ohio 44103

ATTORNEY FOR APPELLEE

Barry Y. Freeman
One Cleveland Center
1375 East Ninth Street, Suite 1700
Cleveland, Ohio 44114
MARY EILEEN KILBANE, J.:

       {¶1} Plaintiff-appellant, Brian Leonard, pro se, appeals from the order of the trial

court that awarded summary judgment to defendant-appellee, The Reserve Network

(“TRN”), in Leonard’s action for retaliatory discharge. For the reasons set forth below,

we affirm.

       {¶2} Leonard was hired by TRN on August 29, 2011. On September 13, 2011,

he was injured at the work site, and TRN directed him to seek medical treatment at an

occupational medical center. Several days later, he applied for workers’ compensation

benefits.

       {¶3} On September 19, 2011, Leonard was released to return to “full duty.” He

continued to experience pain, however, so he did not return to full duty, and TRN

determined that he constructively quit his employment.

       {¶4} On April 10, 2012, Leonard filed a complaint against TRN. In relevant

part, he alleged that after applying for workers’ compensation benefits, the TRN branch

manager refused to take his calls or schedule him for work. Leonard asserted that TRN

terminated him in retaliation for filing a workers’ compensation claim, in violation of

R.C. 4123.90.

       {¶5} On May 15, 2012, TRN filed a “motion to dismiss and for summary

judgment,” alleging that Leonard filed the action outside the 180-day limitation period set

forth in R.C. 4123.90, that he failed to provide TRN with the 90-day notice required in
R.C. 4123.90, and that the matter was barred by res judicata because he filed the same

claim against TRN in the United States district court and did not prevail.

          {¶6} On August 27, 2012, the trial court granted TRN’s motion to dismiss and

for summary judgment.

          {¶7} Leonard now appeals, assigning the following error for our review:

          The trial court committed reversible error by not asking for the letter of
          contact to [TRN,] and [TRN] did not comply with R.C. 4123.90 by not
          contacting me [to notify me] of my termination.

          {¶8} Within this assignment of error, Leonard maintains that he did not receive

written notice of his termination, and that TRN’s branch manager falsely claimed that he

refused to return to work so the deadlines set forth in R.C. 4123.90 should not apply

herein.

          {¶9} With regard to procedure, we note that an appellate court reviews a trial

court’s decision to grant or deny a Civ.R. 12(B)(6) motion de novo. RMW Ventures,

L.L.C. v. Stover Family Invest., L.L.C., 161 Ohio App.3d 819, 2005- Ohio-3226, 832

N.E.2d 118, ¶ 8 (3d Dist.), citing Hunt v. Marksman Prods., 101 Ohio App.3d 760, 762,

656 N.E.2d 726 (9th Dist.1995). Civ.R. 12(B) provides:

          When a motion to dismiss for failure to state a claim upon which relief can

          be granted presents matters outside the pleading and such matters are not

          excluded by the court, the motion shall be treated as a motion for summary

          judgment and disposed of as provided in Rule 56. Provided, however, that

          the court shall consider only such matters outside the pleadings as are
      specifically enumerated in Rule 56. All parties shall be given reasonable

      opportunity to present all materials made pertinent to such a motion by Rule

      56.

      {¶10} A reviewing court reviews an award of summary judgment de novo. Grafton

v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Mitnaul v.

Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002-Ohio-5833, 778 N.E.2d

1093 (8th Dist.). Therefore, this court applies the same standard as the trial court,

viewing the facts in the case in the light most favorable to the nonmoving party and

resolving any doubt in favor of the nonmoving party. Viock v. Stowe-Woodward Co., 13

Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983).

      {¶11} Pursuant to Civ.R. 56(C), summary judgment is proper if:

      (1) No genuine issue as to any material fact remains to be litigated; (2) the
      moving party is entitled to judgment as a matter of law; and (3) it appears
      from the evidence that reasonable minds can come to but one conclusion,
      and viewing such evidence most strongly in favor of the party against whom
      the motion for summary judgment is made, that conclusion is adverse to
      that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364
      N.E.2d 267 (1977).

      {¶12} Once a moving party satisfies its burden of supporting its motion for

summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), the

nonmoving party must set forth specific facts, demonstrating that a “genuine triable issue”

exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447,

449, 1996-Ohio-211, 663 N.E.2d 639.

      {¶13} With regard to the substantive law, we note that R.C. 4123.90 provides in
relevant part as follows:

       No employer shall discharge, demote, reassign, or take any punitive action

       against any employee because the employee filed a claim or instituted,

       pursued or testified in any proceedings under the workers’ compensation act

       for an injury or occupational disease which occurred in the course of and

       arising out of his employment with that employer. * * * The action shall

       be forever barred unless filed within one hundred eighty days immediately

       following the discharge, demotion, reassignment, or punitive action taken,

       and no action may be instituted or maintained unless the employer has

       received written notice of a claimed violation of this paragraph within the

       ninety days immediately following the discharge, demotion, reassignment,

       or punitive action taken.

       {¶14} Therefore, R.C. 4123.90 clearly requires that an employee who wishes to

file a retaliatory discharge action must so notify the employer within 90 days of the

discharge. Longacre v. Penton Publishing Co., 8th Dist. No. 62967, 1993 Ohio App.

LEXIS 3206 (June 24, 1993). The failure to give the employer written notice of a

claimed violation of R.C. 4123.90 within 90 days is a jurisdictional defect, and the action

must be dismissed. Miller v. Premier Indus. Corp., 136 Ohio App.3d 662, 737 N.E.2d

594 (8th Dist.2000). A trial court properly dismisses a claim for retaliatory discharge

under R.C. 4123.90 where the intent-to-sue letter was not timely sent.         Potelicki v.

Textron, Inc., 8th Dist. No. 77144, 2000 Ohio App. LEXIS 4771 (Oct. 12, 2000).
       {¶15} Further, the 180-day time period also operates as a limitations period.

Butler v. The Cleveland Christian Home, 8th Dist. No. 86108, 2005-Ohio-4425, ¶ 10.

However, the punitive action that forms the basis for a retaliatory discharge claim cannot

occur subsequent to an unequivocal discharge. Potelicki, 8th Dist. No. 77144, 2000

Ohio App. LEXIS 4771 (Oct. 12, 2000).

       {¶16} In this matter, Leonard alleges that his branch manager was “putting him

off” when he contacted her about returning to work. Then,“[o]n September 29, I get a

letter stating that the Reserve Network had told [the workers’ compensation bureau that] I

quit because of illness.”

       {¶17} In our view, the record therefore establishes that as of September 29, 2011,

Leonard received unequivocal notification of his termination, and the 90-day and 180-day

limitations periods began to run as of that date. Leonard was therefore required to

provide the 90-day notice of the claimed violation by December 28, 2011, but he failed to

do so. He was also required to file this action within 180 days of September 29, 2011, or

by March 27, 2012, but did not do so until April 10, 2012. Accordingly, the trial court

properly awarded TRN summary judgment herein.

       {¶18} In any event, the record indicates that Leonard filed an action against TRN

in the United States District Court for the Northern District of Ohio alleging that TRN

retaliated against him for filing an injury complaint with the Ohio Industrial Commission.

 On February 21, 2012, the United States district court held that Leonard failed to state a

claim for relief and that an appeal from the decision could not be taken in good faith.
Leonard v. Res. Network, N.D.Ohio No. 1:12-cv-00247 (Feb. 22, 2012). Under the

doctrine of res judicata, “[a] valid, final judgment rendered upon the merits bars all

subsequent actions based upon any claim arising out of the transaction or occurrence that

was the subject matter of the previous action.”        State ex rel. Mun. Constr. Equip.

Operators’ Labor Council v. Cleveland, 114 Ohio St.3d 183, 193, 2007-Ohio-3831, 870

N.E.2d 1174. Accordingly, we agree with the trial court’s determination that this matter

is likewise barred by res judicata.

       {¶19} The trial court properly entered judgment in favor of TRN.

       {¶20} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court 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, JUDGE

MELODY J. STEWART, A.J., and
PATRICIA A. BLACKMON, J., CONCUR
