[Cite as Lawrence v. Youngstown, 133 Ohio St.3d 174, 2012-Ohio-4247.]




         LAWRENCE, APPELLANT, v. CITY OF YOUNGSTOWN, APPELLEE.
   [Cite as Lawrence v. Youngstown, 133 Ohio St.3d 174, 2012-Ohio-4247.]
Employment       law—R.C.       4123.90—Retaliatory        discharge    for   workers’
        compensation filing—Exception to 90-day notice requirements—Judgment
        reversed and cause remanded.
 (No. 2011-0621—Submitted January 17, 2012—Decided September 20, 2012.)
             CERTIFIED by the Court of Appeals for Mahoning County,
                          No. 09 MA 189, 2011-Ohio-998.
                                __________________
        CUPP, J.
        {¶ 1} No employer shall discharge an employee because the employee
filed a claim or participated in a proceeding under the workers’ compensation act
for an injury or occupational disease that occurred in the course of and arising out
of employment.        R.C. 4123.90.       That statute places certain time-specific
obligations on a discharged employee who wishes to sue an employer for
discharging him or her for filing a workers’ compensation claim. In particular,
the statute provides that no retaliation claim may be maintained unless the
employer receives written notice of the alleged violation of the statute from the
employee within the 90 days immediately following the “discharge.”
        {¶ 2} Keith Lawrence, the employee in this case, was suspended from his
position with the city and, therefore, was not working when the city discharged
him. He now alleges that he did not learn he had been discharged until almost six
weeks after the date the city claims the discharge occurred. The trial court
accepted this allegation as true for purposes of its analysis, but it ruled that the
allegation was not relevant to, and did not delay the commencement of, the 90-
day period “immediately following the discharge” for the employer to receive
                             SUPREME COURT OF OHIO




written notice of the employee’s claim that his discharge had been retaliatory
under R.C. 4123.90. The trial court, therefore, found Lawrence’s 90-day notice
letter untimely. The court of appeals affirmed. Lawrence v. Youngstown, 7th
Dist. No. 09 MA 189, 2011-Ohio-998.
       {¶ 3} We accepted for review the certified conflict regarding the definition
of “discharge” in R.C. 4123.90. We hold that in general, “discharge” in R.C.
4123.90 means the date that the employer issued the notice of employment
termination, not the employee’s receipt of that notice or the date the employee
discovered that he or she might have a claim for relief under the statute.
Nevertheless, we reverse the judgment of the court of appeals because the facts of
this case may require an exception to the general rule.
                         I. Facts and Procedural History
       {¶ 4} Because this case presents a narrow question of statutory
interpretation, we focus on only those facts essential to our resolution of the
certified issue.   That issue can be resolved without resort to many of the
underlying factual matters extensively detailed in the parties’ briefs.
       {¶ 5} On January 7, 2007, appellee, the city of Youngstown, suspended
appellant, Keith Lawrence, without pay from his position with the city. Two days
later, the city terminated Lawrence’s employment. The record contains a letter
prepared by the city addressed to Lawrence, dated January 9, 2007, advising him
of the termination of his employment, which was to be effective that same date.
This letter indicates that copies were sent to various city offices and departments
and to Lawrence’s union. The city did not send a certified copy of the letter to
Lawrence. Lawrence now asserts that he did not learn of his discharge until
February 19, 2007.
       {¶ 6} On April 17, 2007, Lawrence’s attorney sent the city a letter stating
that Lawrence intended to bring an action alleging unlawful workers’




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compensation retaliation under R.C. 4123.90 and racial discrimination. The city
received that letter the next day.
       {¶ 7} Lawrence filed his complaint against the city in Mahoning County
Common Pleas Court on July 6, 2007, alleging retaliation under R.C. 4123.90 and
racial discrimination. In support of the allegations regarding R.C. 4123.90, the
complaint asserted that Lawrence had filed a workers’ compensation claim
against the city and that his termination was unlawfully related to the filing.
Lawrence had filed that claim when working for the city years earlier.
       {¶ 8} The city moved for summary judgment. After holding a hearing, a
magistrate determined that summary judgment should be granted to the city on
Lawrence’s claims. As to the relevant claim under R.C. 4123.90, the workers’
compensation antiretaliation statute, the magistrate construed the disputed facts in
favor of Lawrence and assumed that he had not become aware of his discharge
until February 19, 2007. However, the magistrate concluded that the operative
date for starting the 90-day notification period was January 9, 2007, the date the
city’s records show that it terminated Lawrence, and that Lawrence’s possible
delayed awareness of the termination was not relevant.
       {¶ 9} Thus, according to the magistrate, the 90-day notice letter from
Lawrence needed to be received by the city by April 9, 2007, for the notice to be
statutorily compliant. The magistrate determined that Lawrence’s letter notifying
the city of the impending retaliation claim, received on April 18, 2007, had failed
to meet R.C. 4123.90’s 90-day requirement. Therefore, the magistrate concluded
that the court had no jurisdiction.
       {¶ 10} In addition, the magistrate reviewed the R.C. 4123.90 retaliation
claim on the merits and, as an independent ground for granting summary
judgment to the city as to the claim, found that Lawrence had failed to establish a
genuine issue of material fact. The magistrate then reviewed the merits of the
racial-discrimination claim and found that Lawrence had failed to establish a



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genuine issue of material fact on that claim, too.         Finally, the magistrate
considered additional grounds offered by the city in support of its motion for
summary judgment and found for the city on those grounds as well.
        {¶ 11} Lawrence filed timely objections to the magistrate’s decision. The
trial court overruled the objections, and in a short judgment entry made the
magistrate’s decision the judgment of the court, determining that “even construing
the evidence in favor of Lawrence, Youngstown is entitled to judgment as a
matter of law” on the claims.
        {¶ 12} The Seventh District Court of Appeals affirmed. Lawrence, 2011-
Ohio-998, ¶ 7. As to the sole issue in this certified conflict, the court held that
R.C. 4123.90’s 90-day notice period begins on the date of actual discharge, not
notice of discharge. Id. at ¶ 33. Therefore, the appellate court determined that the
trial court had no jurisdiction over the retaliation claim because Lawrence’s notice
to his employer was received more than “ninety days immediately following the
discharge.” R.C. 4123.90. Id. at ¶ 5.
        {¶ 13} The court of appeals under App.R. 12(A)(1)(c) then declined to
address as moot three other assignments of error regarding the retaliation claim,
which challenged the trial court’s alternative conclusion that the claim also failed
on the merits. Id. at ¶ 37. The appellate court then affirmed the grant of summary
judgment to the city on the merits of the racial-discrimination claim. Id. at ¶ 58.
Finally, the appellate court declined to address as moot several additional
assignments of error challenging the trial court’s grant of summary judgment. Id.
at ¶ 63, 66.
        {¶ 14} The court of appeals certified that its decision regarding the
meaning of “discharge” in R.C. 4123.90 conflicted with the holding of Mechling
v. K-Mart Corp., 62 Ohio App.3d 46, 574 N.E.2d 557 (11th Dist.1989), and




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                                      January Term, 2012




O’Rourke v. Collingwood Health Care, Inc., 6th Dist. No. L-87-345, 1988 WL
37587 (Apr. 15, 1988).1
         {¶ 15} We recognized the conflict on the following question, as phrased
by the court of appeals:


                  R.C. 4123.90 requires the action to be filed within one
         hundred eighty days “immediately following the discharge,
         demotion, reassignment, or punitive action taken” and requires the
         employer to receive written notice of the claimed violation within
         ninety days “immediately following the discharge, demotion,
         reassignment, or punitive action taken.” Does the quoted portion of
         the statute mean the time limits begin to run on the effective date of
         discharge or when considering R.C. 4123.95’s directive for liberal
         construction does R.C. 4123.90 mean the time limits begin to run
         upon receiving notice of the discharge?


128 Ohio St.3d 1512, 2011-Ohio-2686, 948 N.E.2d 449.


                                          II. Analysis
         {¶ 16} R.C. 4123.90 provides:


                  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


1. The appellate court recognized that the certified-conflict cases involved the start of the running
of the 180-day time limit of R.C. 4123.90 for the employee to file suit, but reasoned that the same
basic question is presented here because both time limits are jurisdictional and the time limitations
of both turn on the definition of “discharge.”
   Lawrence filed his complaint within 180 days of January 9, 2007, so there is no issue in this
case regarding the start of the running of the 180-day time limit of R.C. 4123.90.



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       workers’ compensation act for an injury or occupational disease
       which occurred in the course of and arising out of his employment
       with that employer. Any such employee may file an action in the
       common pleas court of the county of such employment in which the
       relief which may be granted shall be limited to reinstatement with
       back pay, if the action is based upon discharge, or an award for
       wages lost if based upon demotion, reassignment, or punitive action
       taken, offset by earnings subsequent to discharge, demotion,
       reassignment, or punitive action taken, and payments received
       pursuant to section 4123.56 and Chapter 4141. of the Revised Code
       plus reasonable attorney fees. 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.


(Emphasis added.)
       {¶ 17} As an initial matter, Lawrence has not taken issue with the
appellate court’s conclusion that the 90-day notice requirement of R.C. 4123.90 is
“mandatory and jurisdictional.”    Lawrence, 2011-Ohio-998, ¶ 25.        See also
Parham v. Jo-Ann Stores, Inc., 9th Dist. No. 24749, 2009-Ohio-5944, ¶ 17;
Gribbons v. Acor Orthopedic, Inc., 8th Dist. No. 84212, 2004-Ohio-5872, ¶ 17-
18. We accept that conclusion.
       {¶ 18} In affirming, the appellate court observed that R.C. 4123.90
specifically requires that notice of a claim be received by the employer “ninety
days immediately following the discharge” and therefore unambiguously refers to




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                                January Term, 2012




the discharge date and not that of the employee’s receipt of the notice of
discharge. Lawrence at ¶ 30. “If the General Assembly had intended the time
periods to begin to run upon notice of discharge, the statute could have easily
been written to indicate as such.” Id. The appellate court therefore stated that the
90-day time period begins to run “on the effective date of discharge” and agreed
with Parham at ¶ 17, Gribbons at ¶ 17, and Browning v. Navistar Internatl.
Corp., 10th Dist. No. 89-AP-1081, 1990 WL 106475, *4 (July 24, 1990), to
support that conclusion. Id. at ¶ 27.
       {¶ 19} While the appellate court acknowledged that R.C. 4123.95 requires
that R.C. 4123.01 (“Definitions”) to R.C. 4123.94 (“Preference of judgments”)
“shall be liberally construed in favor of employees,” it stated that it could not
liberally construe R.C. 4123.90, an “unambiguous statute,” because to do so
would be “to add the words ‘notice of’ in front of the word discharge.” Id. at
¶ 31. See Gribbons, 2004-Ohio-5872, at ¶ 17-18 (because the time specifications
of R.C. 4123.90 are not worded ambiguously, R.C. 4123.95’s liberal-construction
provision is inapplicable).
       {¶ 20} The appellate court also reiterated that a discovery rule—that is, a
rule that the limiting period does not begin until the worker discovers that he or
she has a cause of action—should not apply to R.C. 4123.90. Lawrence, 2011-
Ohio-998, at ¶ 29, citing Parham, 2009-Ohio-5944, at ¶ 20-21.
       {¶ 21} Lawrence and his supporting amicus curiae, the Ohio Employment
Lawyers Association, emphasize that the appellate court’s holding allows the
worker’s rights to “vary depending on the whim of an employer in deciding
when, or even whether, to notify the employee of his or her termination.” They
ask this court to interpret R.C. 4123.90 liberally, as directed by R.C. 4123.95, to
provide that the 90-day period of R.C. 4123.90 begins when an employee
becomes aware of the discharge and not on the date of the discharge.




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       {¶ 22} Lawrence notes, and his amicus reiterates, that he does not seek an
expansive discovery rule that starts the 90-day period running only when the
employee becomes aware that the discharge may have been motivated by
workers’ compensation retaliation. Rather, Lawrence seeks a narrower equitable
ruling that interprets “discharge” in R.C. 4123.90 to mean the date that the
employee receives word of the discharge, a ruling that Lawrence asserts is
justified by R.C. 4123.95.
       {¶ 23} 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. As noted in
oral argument, however, the date of actual discharge and the date that the
employee is notified of it are normally the same, and that date ordinarily starts the
90-day period of R.C. 4123.90.
       {¶ 24} 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, 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. A reasonable time for an
employer to inform an employee of a discharge is an inquiry dependent on the




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                               January Term, 2012




facts of each situation. A delay of several days would not prevent the 90-day
period for the employer to receive notification from the employee from
commencing to run on the discharge date.
       {¶ 25} 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 becomes or
should have become aware of the employee’s discharge. We do not perceive this
responsibility to occasion any onerous burden on an employer. Rather, it is
something that rationally flows from the act of the discharge of an employee.
       {¶ 26} We anticipate that our recognition of this responsibility will have
limited application. Even if an employer does not communicate the discharge to
the employee within a reasonable time, if the employee nonetheless becomes
otherwise aware of the discharge or should have become aware of it in the
exercise of due diligence within a reasonable time, then the period of 90 days
must still be counted from the actual discharge date.
       {¶ 27} 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



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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
becomes aware of the discharge or the date the employee should have become
aware of the discharge.
         {¶ 28} The magistrate’s analysis in this case, later fully adopted by the
trial court, began by interpreting the conflicting evidence in favor of Lawrence
and assumed that Lawrence had not been informed of his termination and did not
receive the termination letter that the city asserts it mailed to him. On this record,
that interpretation is supported by the absence of evidence of any face-to-face or
other oral notification of the termination, and there is no indication that the city
sent a certified letter to Lawrence. Thus, the city did not definitively demonstrate
reasonably prompt notification.
         {¶ 29} The magistrate thus accepted Lawrence’s assertion that he did not
become aware of his discharge until February 19, 2007, which was 41 days after
the city maintains that the discharge occurred on January 9, 2007, as the starting
point for analyzing the certified issue.2 Therefore, nearly half of the 90-day
period may have already elapsed by the time Lawrence first knew or should have
known of his discharge.            Under the confluence of circumstances here, we
conclude that the city may have timely received Lawrence’s notice of alleged
retaliatory discharge, which the city received 58 days after Lawrence may have
learned of the discharge.




2. Because the trial court determined that Lawrence’s awareness of his discharge was irrelevant to
the start of the running of the 90-day statutory period, the trial court did not consider any of the
particulars regarding the employer’s communication (or lack of communication) of the fact of the
discharge to Lawrence or of Lawrence’s awareness of the discharge through some other means.
Given our resolution of the certified issue, matters of that type are to be explored upon a remand to
the trial court should such a remand eventually occur in this case.




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                                January Term, 2012




                                  III. Conclusion
       {¶ 30} For all the above reasons, we hold that in general, “discharge” in
R.C. 4123.90 means the date that the employer issued the notice of employment
termination, not the date of the employee’s receipt of that notice or the date of the
employee’s discovery of an R.C. 4123.90 cause of action. But because of the
limited exception we recognize today, Lawrence’s 90-day notification letter may
have been timely received, and the judgment of the court of appeals on the issue
we address must be reversed. We therefore remand the cause to the court of
appeals to address those assignments of error determined to be moot and not
addressed.
                                                                 Judgment reversed
                                                               and cause remanded.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, and MCGEE
BROWN, JJ., concur.
       LANZINGER, J., concurs in judgment only.
       O’DONNELL, J., dissents.
                              __________________
       LANZINGER, J., concurring.
       {¶ 31} I concur in judgment, but would explicitly adopt a discovery rule.
In my view, the definition of the word “discharge” in the statute implies that the
employee will know of the termination of employment.              The employment
relationship is not one-sided, and as the majority opinion notes, it is not difficult
for the employer to notify its employee that his or her services are no longer
needed. Face-to-face notification obviously is unnecessary, for certified mail will
provide adequate proof of the fact of discharge.
       {¶ 32} There is no need to establish a “limited exception” to a general rule
as the majority does here. The standard adopted in other discovery cases, “knew
or should have known,” should apply here, and the time limits in R.C. 4123.90



                                         11
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should not begin to run until the employee knows or should have known, that is,
is notified, of the discharge.
                                  __________________
        O’DONNELL, J., dissenting.
        {¶ 33} Respectfully, I dissent.
        {¶ 34} The majority and concurring opinions stretch far to perform the
work of the General Assembly and as a consequence have offered two different
views of how and why today’s decision reverses the court of appeals and remands
the cause.
        {¶ 35} R.C. 4123.90 establishes a cause of action against an employer for
retaliating against an employee because the employee sought workers’
compensation benefits or participated in a proceeding provided for by the
workers’ compensation act, but the statute bars the claim “unless the employer
has received written notice of a claimed violation of [R.C. 4123.90] within the
ninety days immediately following the discharge, demotion, reassignment, or
punitive action taken.”
        {¶ 36} We accepted this case as a certified conflict from a decision of the
Seventh Appellate District holding that those who assert claims for being
wrongfully discharged in retaliation for having filed a workers’ compensation
claim must give the employer notice of the claim within 90 days from the date of
the discharge, not from the date the employee claimed to receive notice of the
discharge.
        {¶ 37} At issue here, then, is whether this 90-day period runs from the
effective date of the discharge or other adverse employment action, or whether it
commences only after the employee receives notice of that action from the
employer.
        {¶ 38} The majority acknowledges that “in general, ‘discharge’ in R.C.
4123.90 means the date that the employer issued the notice of employment




                                          12
                               January Term, 2012




termination, not the employee’s receipt of that notice or the date the employee
discovered that he or she might have a claim for relief under the statute.” This
position is supported by the weight of authority in this state, including decisions
from the Eighth, Ninth, and Tenth Appellate Districts as well as the Sixth Circuit
Court of Appeals. See, e.g., Gribbons v. Acor Orthopedic, Inc., 8th Dist. No.
84212, 2004-Ohio-5872, ¶ 17-18; Parham v. Jo-Ann Stores, Inc., 9th Dist. No.
24749, 2009-Ohio-5944, ¶ 20; Browning v. Navistar Internatl. Corp., 10th Dist.
No. 89AP-1081, 1990 WL 106475, * 3 (July 24, 1990); Jakischa v. Cent. Parcel
Express, 106 Fed. Appx. 436, 441 (6th Cir.2004), quoting Potelicki v. Textron,
Inc., 8th Dist. No. 77144, 2000 WL 1513708, *5 (Oct. 12, 2000) (“ ‘Ohio courts
have refused to apply the discovery rule in R.C. 4123.90 cases’ ”); see also Siegel
and Stephen, Ohio Employment Practices Law, Section 3:36 (2012-2013)
(explaining that the R.C. 4123.90 limitations periods “may not be tolled under a
‘discovery’ rule”).
       {¶ 39} Nonetheless, the majority disregards the plain language of the
statute and crafts “a limited exception” for when the “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.”
       {¶ 40} In my view, this exception 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
on 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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        {¶ 41} Most tellingly, in this case, Lawrence did receive notice of his
discharge and could have notified his employer within the 90-day limitations
period prescribed in the statute, but he did not do so. He knew he had filed claims
for workers’ compensation in 1999, 2000, and 2001 while previously employed
by the city of Youngstown; he knew that—unlike other employees—he had been
required to sign a pre-employment agreement to serve a one-year probationary
period before the city would rehire him in 2006; and he knew that the city
suspended him without pay on January 7, 2007. Thus, when Youngstown fired
him two days later and the 90-day period commenced, he already had notice of
most of the operative facts on which he relies to show retaliation. Even on
February 19, 2007, when he claims to have first discovered his termination,
Lawrence still had 49 days to provide his employer with written notice of his
claim. And although he filed a complaint for discrimination with the Civil Rights
Commission the day after learning he had been fired, he waited more than 50
days to send the city a letter giving notice of his claim for retaliation.
        {¶ 42} Accordingly, I would follow the analysis and conclusions of the
Eighth, Ninth, and Tenth Districts, and I would affirm the judgment of the
Seventh District Court of Appeals. I therefore respectfully dissent from today’s
majority decision to reverse it.
                                   _________________
        Martin S. Hume Co., L.P.A., and Martin S. Hume, for appellant.
        Harrington, Hoppe & Mitchell, Ltd., and Neil D. Schor, for appellee.
        The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro,
urging reversal for amicus curiae Ohio Employment Lawyers Association.
                             ______________________




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