[Cite as Lawrence v. Youngstown, 2011-Ohio-998.]


                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


KEITH LAWRENCE,                                    )
                                                   )      CASE NO.     09 MA 189
        PLAINTIFF-APPELLANT,                       )
                                                   )
        - VS -                                     )      OPINION
                                                   )
CITY OF YOUNGSTOWN,                                )
                                                   )
        DEFENDANT-APPELLEE.                        )



CHARACTER OF PROCEEDINGS:                              Civil Appeal from Common Pleas Court,
                                                       Case No. 07CV2447.


JUDGMENT:                                              Affirmed.


APPEARANCES:
For Plaintiff-Appellant:                               Attorney Martin Hume
                                                       6 Federal Plaza Central, Suite 905
                                                       Youngstown, Ohio 44504


For Defendant-Appellee:                                Attorney Neil Schor
                                                       26 Market Street, Suite 1200
                                                       P.O. Box 6077
                                                       Youngstown, Ohio 44501-6077


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                       Dated: February 25, 2011
VUKOVICH, J.

       ¶{1}   Plaintiff-appellant Keith Lawrence appeals the decision of the Mahoning
County Common Pleas Court granting summary judgment to defendant-appellee City
of Youngstown.      Multiple arguments are presented in this appeal, however, the
dispositive issues are raised in the second and sixth assignments of error.
       ¶{2}   The second assignment of error addresses Lawrence’s R.C. 4123.90
workers’ compensation retaliation claim against Youngstown.        Lawrence maintains
that the magistrate incorrectly concluded that the court lacked jurisdiction over the
retaliation claim because of a purported failure by appellant to abide by the notice
requirement in R.C. 4123.90. In support of that position, he asserts that while he was
required to give Youngstown written notice of the claims against it within ninety days of
his discharge, the ninety day time limit did not begin to run until he received notice of
the discharge. Since his notice of claims letter was received by Youngstown within
ninety days of when he allegedly received notice of his discharge, he argues that the
court had jurisdiction over the claim.
       ¶{3}   Youngstown, on the other hand, argues that the ninety day time limit
starts to run on the date of discharge. Accordingly, it asserts that since the notice of
claims letter was received more than ninety days after the date of discharge, the trial
court lacked jurisdiction over the retaliation claim and summary judgment was proper.
       ¶{4}   Lawrence’s sixth assignment of error addresses his racial discrimination
claim against Youngstown. He contends that the trial court incorrectly determined that
there were no genuine issues of material fact as to this claim. Specifically, he asserts
that there is a genuine issue of material fact as to whether he was qualified for the
position and that he was treated differently than non-protected similarly situated
employees.
       ¶{5}   After reviewing the arguments presented by each party, as to the
Workers’ Compensation Retaliation claim we find that R.C. 4123.90’s ninety day notice
requirement is jurisdictional.   The statute as written requires written notice of the
claims to be received within ninety days of the effective date of termination, not within
ninety days of receiving notice of the termination. Accordingly, the ninety day time
limit began on the date of termination. Thus, since Lawrence’s notice of claims letter
was not received within that period of time, the workers’ compensation retaliation claim
is barred by the time limits in R.C. 4123.90.
       ¶{6}   As to the racial discrimination claim, we find that Lawrence cannot
establish a prima facie case of race discrimination. The employees he uses in an
attempt to support his race discrimination claims were not similarly situated and/or
were protected employees. Thus, the evidence he presents does not show that he
was treated differently than a non-protected similarly situated employee.
       ¶{7}   Consequently, for those reasons and the ones elaborated below, the
judgment of the trial court is hereby affirmed.
                                STATEMENT OF CASE
       ¶{8}   Lawrence is an African-American male who was hired by the
Youngstown Street Department (YSD) as a seasonal worker in 1999 and 2000. His
position was a laborer and, as such, he was required to operate power equipment and
automobiles and have a valid Commercial Driver’s License. In 2000, his employment
changed from a seasonal worker to a full-time position. However, Lawrence was laid
off in September 2002 when Youngstown conducted massive layoffs. From 1999 until
his layoff, Lawrence made three separate claims for workers’ compensation, he
missed significant hours of work while being off on Injured on Duty status, utilized
extensive sick hours during that time, and on one occasion was written up for violating
Youngstown’s reporting off policy.
       ¶{9}   Lawrence was rehired by Youngstown in 2006 upon the request of
former Councilman Gillam.       Lawrence was required to execute an employment
agreement that extended the typical ninety day probationary period to one year,
provided that Lawrence’s termination during that period could be with or without cause,
and stated that Lawrence was to obtain a valid CDL within the first ninety days of his
probationary period (Exhibit F to Youngstown’s Motion for Summary Judgment –
Employment Agreement). The Agreement also contained a waiver provision whereby
Lawrence waived the right to sue Youngstown for terminating him during the
probationary period.
       ¶{10} In September 2006, Youngstown hired a new Commissioner of Building
and Grounds, Sean McKinney. McKinney was in charge of overseeing operations of
YSD.    Sometime in the winter, he reviewed all employees’ driving records and
discovered that Lawrence’s Ohio driver’s license was suspended on December 10,
2006 for refusing to take a breath test for suspected driving under the influence.
McKinney also discovered that Lawrence had failed to advise YSD of his license
suspension. Lawrence was still under his one year probationary period when this
occurred.
       ¶{11} Due to the license suspension, on January 7, 2007, Lawrence was
suspended without pay. Two days later, McKinney advised Mayor Jay Williams and
the City Law Director of his findings and recommended that Lawrence be terminated
from his position with Youngstown. A letter dated that day was signed by Mayor
Williams indicating that Lawrence’s employment with Youngstown was terminated
effective January 9, 2007.
       ¶{12} As a result of the above, on April 17, 2007, counsel for Lawrence sent a
letter to Youngstown indicating that Lawrence intended to sue the city because his
termination was racially discriminatory and constituted unlawful retaliation for filing
workers’ compensation claims.         The complaint alleging workers’ compensation
retaliation (Count I) and racial discrimination (Count II) was filed July 6, 2007.
       ¶{13} Following discovery, Youngstown filed a motion for summary judgment
arguing that the trial court lacked subject matter jurisdiction over the workers’
compensation retaliation claim because Lawrence failed to comply with R.C. 4123.90
and that alternatively, Lawrence cannot create a genuine issue of material fact
concerning the retaliation claim. As to the racial discrimination claim, Youngstown
contended that Lawrence cannot create a genuine issue of material fact concerning
the claim. As to both claims, it also argued that the employment agreement was a
“Last Chance Agreement” and that the waiver provision in the Agreement relinquished
Lawrence’s right to sue over his termination.            Also, Youngstown argued that
Lawrence’s claims are barred due to the doctrine of judicial estoppel because on
Lawrence’s bankruptcy petition and the Amended Schedule he did not note these
claims.
       ¶{14} Lawrence filed a motion in opposition to the motion for summary
judgment. He disputed all of Youngstown’s arguments. The matter was heard by the
magistrate.
       ¶{15} On the workers’ compensation retaliation claim, the magistrate decided
that Lawrence had not complied with R.C. 4123.90 and thus, the court did not have
subject matter jurisdiction. Additionally, it found that Lawrence could not establish a
genuine issue of material fact on that claim. On the racial discrimination claim, the
magistrate decided Lawrence could not establish a genuine issue of material fact on
that claim.   As to the arguments about the validity of the Agreement, waiver and
judicial estoppel, the magistrate found that the Agreement was a “Last Chance”
agreement and that the waiver provision in the Agreement barred the suit. It also
found that judicial estoppel barred the suit.    Consequently, it found that summary
judgment was appropriate on Counts I and II of the complaint.
      ¶{16} Lawrence filed timely objections to all the above findings made by the
magistrate. Youngstown filed a response to those objections. The trial court overruled
the objections and affirmed the magistrate’s decision. However, it did not address all
the reasons why the magistrate found that summary judgment was warranted for
Youngstown, rather it stated:
      ¶{17} “The Court finds that there are no genuine issues of material fact as to
these claims under Counts I and II brought against Youngstown by Keith Lawrence
and that reasonable minds can come to but one conclusion: that even construing the
evidence in favor of Lawrence, Youngstown is entitled to judgment as a matter of law
on these two remaining claims.” 10/21/09 J.E.
      ¶{18} Lawrence timely appeals the trial court’s grant of summary judgment.
                                STANDARD OF REVIEW
      ¶{19} An appellate court reviews a trial court's summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v.
Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, ¶5. A motion for summary judgment is
properly granted if the court, upon viewing the evidence in a light most favorable to the
party against whom the motion is made, determines that: (1) there are no genuine
issues as to any material facts; (2) the movant is entitled to judgment as a matter of
law; and (3) the evidence is such that reasonable minds can come to but one
conclusion and that conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v.
Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶10. When a court considers a motion for
summary judgment the facts must be taken in the light most favorable to the non-
moving party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
      ¶{20} With that standard in mind, we now turn to the arguments raised.
However, for ease of discussion and due to the dispositive nature of some of the
arguments presented, the assignments of error are addressed slightly out of order.
                        SECOND ASSIGNMENT OF ERROR
      ¶{21} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT-APPELLEE BASED UPON A FINDING THAT LAWRENCE
FAILED TO TIMELY SUBMIT A 90 DAY NOTICE TO THE CITY OF YOUNGSTOWN
THAT HE CLAIMED THE CITY VIOLATED OHIO REVISED CODE SECTION
4123.90.”
      ¶{22} R.C. 4123.90 states in pertinent part:
      ¶{23} “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. 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.” R.C. 4123.90 (Emphasis Added).
      ¶{24} Our focus in this assignment of error deals with the emphasized portion
of the above statute. Specifically, we must determine when the discharge is effective.
Is it the actual date of discharge or is it when the employee receives notice of the
discharge?
      ¶{25} Courts have indicated that the ninety day notice requirement and one
hundred eighty day filing requirement in R.C. 4123.90 are mandatory and
jurisdictional. 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.
      ¶{26} There is a split among the districts as to when the ninety day time limit
begins to run. The Sixth and Eleventh Appellate Districts have held that the date of
notice of the termination is controlling for computing both the ninety day notice
requirement and the one hundred eighty day filing requirement in R.C. 4123.90.
Mechling v. K-Mart Corp. (1989), 62 Ohio App.3d 46, 48-49; O’Rourke v. Collingwood
Health Care, Inc. (Apr. 15, 1988), 6th Dist. No. L-87-345. The Eleventh Appellate
District explained that to find otherwise would be unreasonable and would be
fundamentally unfair. Mechling, supra, at 48. In holding as such, it quoted the Ohio
Supreme Court for the proposition that formal rules of pleading and procedure are not
applicable to workers’ compensation proceedings and that an injured employee’s claim
should not be unjustly defeated by a mere technicality. Id. quoting Toler v. Copeland
Corp. (1983), 5 Ohio St.3d 88, 91. Mechling also quoted Toler for its indication that
that policy is consistent with the General Assembly’s expressed intent in R.C. 4123.95
that R.C. Chapter 4123 should be liberally construed in favor of the claimant. Id.
       ¶{27} Conversely, the Eighth, Ninth, and Tenth Appellate Districts have stated
that the official date of termination, not the date the employee received notice of the
termination, is the date the ninety day notice and one hundred eighty day filing
requirements in R.C. 4123.90 commence.          Parham, supra, at ¶19-21; Butler v.
Cleveland Christian Home, 8th Dist. No. 86108, 2005-Ohio-4425, ¶8; Gribbons, supra,
at ¶18; Browning v. Navistar Internatl. Corp. (July, 24, 1990), 10th Dist. No. 89AP-
1081. The Gribbons court, when addressing the argument that R.C. 4123.90 should
be liberally construed, stated:
       ¶{28} “The statute of limitations' provision contained in R.C. 4123.90 is not
ambiguous; therefore, the liberal construction provision of R.C. 4123.95 has no
application.” Gribbons, supra, at ¶18.
       ¶{29} Furthermore, these districts, in coming to the conclusion that the ninety
day notice requirement begins on the date of discharge, have also consistently stated
that Ohio courts have refused to apply a discovery rule to R.C. 4123.90. Parham,
supra, at ¶20-21 (discovery rule used in the sense that employee is to be aware of all
facts by employer so that he or she is aware of cause of action under R.C. 4123.90);
Gribbons, supra, at ¶17 (discovery rule used in sense that discovery is of the
termination, not of a cause of action under R.C. 4123.90).
       ¶{30} Considering the language of the statute we embrace the approach taken
by the Eighth, Ninth and Tenth Appellate Districts, rather than the approach taken by
the Sixth and Eleventh Appellate Districts. As to the ninety day notice requirement,
the statute quoted above specifically states “ninety days immediately following the
discharge, demotion, reassignment, or punitive action taken.” This language clearly
references the date of discharge, not notice of discharge. 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. Accordingly, we find that the time
limits begin to run on the effective date of discharge.
       ¶{31} That said, it is acknowledged that R.C. 4123.95 does state that R.C.
4123.02 to R.C. 4123.94 must be liberally construed in favor of employees and the
dependents of deceased employees. However, to liberally construe this unambiguous
statute to mean the notice of discharge, this court would have to add the words “notice
of” in front of the word discharge. As the Supreme Court has noted, “a court may not
add words to an unambiguous statute, but must apply the statute as written.” Davis v.
Davis, 115 Ohio St.3d 180, 2007-Ohio-5049, ¶15.
       ¶{32} We acknowledge that our holding that the ninety day notice time begins
to run on the date of discharge and not the date of notice of discharge might give
employers the incentive to not notify the employee until after ninety days have passed.
However, in the case before us, there is no clear allegation that Youngstown withheld
the letter of termination for the purpose of preventing Lawrence from filing a suit. Even
if we accept Lawrence’s position that he did not receive notice of his termination until
February 19, 2007, he had forty-nine days to get the notice of claims letter to the city.
Furthermore, we note that the complaint was filed within the requisite one hundred
eighty day time limit. Thus, any potential delay on the part of Youngstown did not
prevent Lawrence from complying with the filing time limits. This is not a situation
were it could be found that the employer intentionally withheld the notice of discharge
from the employee in an attempt to protect itself from liability.
       ¶{33} Consequently, we hold that the ninety day notice requirement of R.C.
4123.90 begins on the date of discharge. The termination letter dated January 9,
2007, clearly indicates that Lawrence’s effective date of termination was January 9,
2007. See Butler, 8th Dist. No. 86108, 2005-Ohio-4425, at ¶8 (stating that the date on
the discharge letter is the date of discharge). Therefore, as per the language of the
statute, the notice of claims letter had to be received within ninety days of January 9,
2007. Or in other words, Youngstown had to receive it no later than April 9, 2007.
Lawrence’s notice of claims letter was received April 17, 2007 and, as such, was
untimely.   Accordingly, the trial court did not have jurisdiction over the workers’
compensation retaliation claim and summary judgment was proper. This assignment
of error lacks merit.
                          THIRD ASSIGNMENT OF ERROR
       ¶{34} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT-APPELLEE BASED WHERE THERE WAS DIRECT
EVIDENCE OF UNLAWFUL RETALIATION AGAINST LAWRENCE FOR FILING HIS
WORKER’S COMPENSATION CLAIMS.”
                         FOURTH ASSIGNMENT OF ERROR
       ¶{35} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT-APPELLEE BASED UPON A FINDING THAT LAWRENCE
FAILED TO ESTABLISH A PRIMA FACIE CASE OF UNLAWFUL RETALIATION
AGAINST HIM FOR FILING WORKER’S COMPENSATION CLAIMS.”
                          FIFTH ASSIGNMENT OF ERROR
       ¶{36} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT-APPELLEE WHERE THERE WAS SUBSTANTIAL
EVIDENCE IN THE RECORD THAT THE REASON FOR DISCHARGE PROFERRED
[SIC] BY THE CITY OF YOUNGSTOWN WAS PRETEXTUAL.”
       ¶{37} The third, fourth and fifth assignments of error address the merits of the
workers’ compensation retaliation claim.       Due to our resolution of the second
assignment of error, these assignments of error are moot and, as such, will not be
addressed. App.R. 12(A)(1)(c).




                          SIXTH ASSIGNMENT OF ERROR
       ¶{38} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT-APPELLEE BASED UPON A FINDING THAT LAWRENCE
DID NOT ESTABLISH A PRIMA FACIE CASE OF RACIAL DISCRIMINATION.”
       ¶{39} In general, a prima facie case of racial discrimination requires a plaintiff
to establish that he or she: (1) is a member of a protected class; (2) suffered an
adverse employment action; (3) was qualified for the position either lost or not gained;
and (4) either he was replaced by someone outside the protected class or a non-
protected similarly situated person was treated better. McDonnell Douglas Corp. v.
Green (1973), 411 U.S. 792. See, also, Farris v. Port Clinton School Dist., 6th Dist.
No. OT-05-41, 2006-Ohio-1864, ¶50. The burden is on the employee to prove the
prima facie case of racial discrimination. McDonnell Douglas, supra, at 802.
      ¶{40} It is undisputed that Lawrence meets the first two elements of the
McDonnell Douglas test. He is an African American and that he was terminated.
      ¶{41} The third element is qualification for the position. Youngstown offers
evidence that he was not qualified for the position because his license was
suspended. It also contends that his previous write-up for not properly reporting off is
evidence that he did not perform his job satisfactorily. Mastroprietro Aff. ¶8. Lawrence,
on the other hand, attempted to present evidence that he was qualified for the position
and that he performed his job satisfactorily. In his own affidavit attached to his motion
in opposition to summary judgment, Lawrence references a letter of recommendation
written from Jones, Superintendent of Streets, that Lawrence claims shows that he
performed his duties satisfactorily.   The letter shows that Jones was the General
Foreman of the Street Department under former Mayor George McKelvey. In the
letter, Jones states that Lawrence is highly recommended for a position as a laborer or
maintenance worker, and that Lawrence learned new tasks quickly and was able to
complete assignments without constant supervision.            Lawrence also provided
affidavits from other laborers that stated that Lawrence could have performed his
duties as a laborer without driving. Moody Aff. ¶3; Large Aff. ¶3. Those affidavits
referred to other employees who were not discharged when their licenses were
suspended. Moody Aff. ¶4; Large Aff. ¶4.
      ¶{42} The above evidence creates a factual issue of whether Lawrence was
qualified for the position when his license was suspended. While Moody and Large
are not supervisors and are only laborers, their affidavits indicate that Lawrence could
have performed the duties of a laborer without a driver’s license. Those statements
are the opinion of his fellow workers. The statements may be somewhat speculative
because those employees are not in the position of authority to draw such a
conclusion that an employee could still perform the work without a license. Although
Moody and Large’s testimony might not carry much weight, when viewed in the light
most favorable to Lawrence, the statements do tend to show an issue as to whether
he was qualified. Thus, it appears Lawrence presented enough evidence to survive
summary judgment on the third element.
      ¶{43} That said, he fails to offer a genuine issue of material fact to survive the
fourth element of the McDonnell Douglas test. Under the fourth element, Lawrence
makes two separate arguments as to how non-protected similarly situated persons
were treated better.
      ¶{44} In his first argument he contends that non-protected similarly situated
employees were only given a ninety day probationary period, not a year probationary
period. Those employees were Boris, Cooling, and Rogers.
      ¶{45} As to Boris and Cooling, the magistrate explains in paragraph forty-nine
of its opinion that they were new employees, not rehires. That factual conclusion is
confirmed by Lawrence’s testimony.      Lawrence Depo. 95-96.        The requirement of
similarly situated requires the comparators to be similarly situated in all respects.
Mitchell v. Toledo Hosp. (C.A.6, 1992), 964 F.2d 577, 583. Consequently, since they
are new employees and he was a rehire, those employees were not similarly situated.
      ¶{46} At this point, we note that Lawrence finds faults with Youngstown’s
position that it rehired him. He contends that he was a new employee. He cites the
introduction of the employment agreement to support that position.
      ¶{47} The introduction to the Employment Agreement states that Lawrence has
“no present entitlement to being * * * rehired by the City.” Following that statement the
Agreement states:
      ¶{48} “NOW, THEREFORE, the parties to this Agreement agree as follows:
      ¶{49} “I. Employer’s Agreement
      ¶{50} “The Employer agrees to rehire and appoint Employee to the position of
driver/laborer in the Street Department.”
      ¶{51} Thus, although this agreement acknowledges that at the time of
employment Lawrence was not entitled to rehire, Youngstown did agree to rehire him.
Consequently, without any other evidence, Lawrence’s claim that he was a new hire
and not a rehire fails by the clear language of the employment contract he signed.
Thus, his argument that he was similarly situated to Boris and Cooling fails.
      ¶{52} However, as to Rogers, Lawrence was similarly situated. Rogers was
rehired by Youngstown after having been previously laid off. Lawrence Depo. 25, 96.
Upon his rehire, Rogers was not required to sign an agreement that subjected him to
one year probation, rather he was subject to the ninety day probationary period.
Lawrence Depo. 96. Thus, Lawrence was treated differently than Rogers by having to
sign an extended probationary period.
      ¶{53} Despite the fact that he was similarly situated to Rogers, Lawrence
cannot establish the fourth element of McDonnell Douglas.          The fourth element
requires evidence that a non-protected similarly situated person was treated better.
Rogers is Hispanic. Lawrence Depo. 25. Thus, he is a protected employee and does
not provide evidence of discrimination.      Santiago v. Tool & Die Systems, Inc.
(N.D.Ohio 2010), N.D. Ohio No. 1:09-CV-1224.
      ¶{54} Lawrence failed to offer evidence of any other employee who could
qualify as similarly situated. Thus, for those reasons, Lawrence cannot show that the
implementation of the extended probationary period was done on the basis of race.
      ¶{55} His second argument under the fourth element of the McDonnell Douglas
test is that he was treated differently than other similarly situated employees who had
their license’s suspended.     He was discharged, while they were not.           Those
employees were Cerimele, Carter, Cox and Shade. Moody Aff. ¶4; Large Aff. ¶4.
      ¶{56} The record reflects that all four of those workers had their licenses
suspended and were not terminated because of that suspension. Carter, Cox and
Shade were not under the probationary period, however, as to Cerimele the record
indicates that Lawrence does not know whether he was under the probationary period
when his license was suspended.         Lawrence Depo. 98-99, 102.         Youngstown
maintains he was not under a probationary period. As stated above, the requirement
of similarly situated requires the comparators to be similarly situated in all respects.
Mitchell, 964 F.2d at 583. Thus, to be similarly situated the other employee also had
to be under the probationary period at the time that employee’s license was
suspended.     Considering the evidence presented, we cannot find that those
employees were similarly situated to Lawrence since there is no evidence that any of
the mentioned employees were under the probationary period when their license was
suspended.
      ¶{57} However, even if we were to conclude that they were similarly situated,
Lawrence still cannot establish the fourth element of the McDonnell Douglas test.
Cerimele is Caucasian, while the others are African American. Lawrence Depo. 98-
99; McKinney Affidavit ¶6. Lawrence cannot use Cerimele to show race discrimination
when the other three employees who were African American were treated exactly the
same as Cerimele, i.e. none of them were discharged based upon the suspension.
The fact that other African Americans were treated the same as the Caucasian
demonstrates that Lawrence’s discharge was not based on his African American race.
       ¶{58} Consequently both of Lawrence’s arguments under the fourth prong of
McDonnell Douglas test fail and accordingly, he cannot show a prima facie case of
race discrimination. This assignment of error lacks merit.
                        SEVENTH ASSIGNMENT OF ERROR
       ¶{59} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR OF DEFENDANT-APPELLEE BASED UPON A FINDING THAT THE
PROFERRED [SIC] REASON FOR LAWRENCE’S DISCHARGE WAS NOT
PRETEXTUAL.”
       ¶{60} The arguments made in this assignment of error only need to be
addressed if we find that Lawrence established a prima facie case of race
discrimination.   In the sixth assignment of error we found that Lawrence failed to
establish a prima facie case. Thus, this assignment of error is rendered moot, and will
not be addressed. App.R. 12(A)(1)(c).
                          FIRST ASSIGNMENT OF ERROR
       ¶{61} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR     OF      DEFENDANT-APPELLEE         BASED      UPON     A   FINDING     THAT
LAWRENCE’S CLAIMS OF UNLAWFUL RETALIATION FOR FILING WORKER’S
COMPENSATION CLAIMS AND RACIAL DISCRIMINATION WERE WAIVED.”
       ¶{62} This assignment of error deals with the purported “Last Chance
Agreement” Lawrence signed upon his rehire.           The trial court determined the
agreement validly waived his right to seek legal recourse for terminating him within the
one year probationary period.       As such, it determined that both the workers’
compensation retaliation and racial discrimination claims were barred.
       ¶{63} Our resolution of the second and sixth assignments of error indicates
that summary judgment was properly granted on both the workers’ compensation
retaliation and racial discrimination claims. Consequently, this assignment of error is
rendered moot and will not be addressed. App.R. 12(A)(1)(c).
                         EIGHTH ASSIGNMENT OF ERROR
       ¶{64} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
FAVOR     OF      DEFENDANT-APPELLEE         BASED      UPON     A   FINDING     THAT
LAWRENCE’S CLAIMS WERE BARRED BY THE DOCTRINE OF JUDICIAL
ESTOPPEL.”
      ¶{65} As one of its reasons for granting summary judgment, the magistrate
determined that judicial estoppel barred both claims because Lawrence did not include
the claims in his bankruptcy petition or in the amended schedules to the bankruptcy
petition. Under this assignment of error, Lawrence argues that that determination is
erroneous.
      ¶{66} As explained under the first assignment of error, our resolution of the
second and sixth assignments of error indicates that the grant of summary judgment
on both claims was appropriate for other reasons. Thus, the arguments made under
this assignment of error are moot and will not be addressed. App.R. 12(A)(1)(c).
                                   CONCLUSION
      ¶{67} For the reasons expressed above, summary judgment was correctly
granted on both the workers’ compensation retaliation and racial discrimination claims.
The trial court lacked jurisdiction over the retaliation claim because Lawrence did not
comply with R.C. 4123.90’s ninety day notice requirement.          Lawrence failed to
establish a prima facie case of race discrimination. Accordingly, the second and sixth
assignments of error lack merit. All other assignments of error are rendered moot.
      ¶{68} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Waite, P.J., concurs.
DeGenaro, J., concurs.
