IN THE SUPREME COURT OF OHIO. Case No.

Transcription

1 IN THE SUPREME COURT OF OHIO SANDRA WILLIAMS, BUREAU OF WORKERS' COMPENSATION, Appellant, Appellee. Case No. On Appeal From the Court of Appeals for the Tenth Appellate District [Court of Appeals No. 09AP-1076; Franklin County] MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT SANDRA WILLIAMS MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT SANDRA WILLIAMS MICHAEL B. BOWLER (# ) Blakemore, Meeker & Bowler Co., L.P.A. 19 North High Street Akron, Ohio [Voice] [Facsimile] Counsel for Appellant SANDRA WILLIAMS PETER E. DEMARCO (# ) Principal Attorney Assistant Attorney General State of Ohio 150 East Gay Street, 18th Floor Columbus, Ohio Counsel for Appellee BUREAU OF WORKERS' COMPENSATION

2 TABLE OF CONTENTS 1. EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION II. STATEMENT OF THE CASE AND FACTS III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW... 7 Proposition of Law No. I: Where two court decisions are in conflict as to which statute of limitation apply to a claim, a plaintiff has a vested right to commence the action within the limitation period adopted by the court existing at the time the cause of action accrued Proposition of Law No. II: To the extent that a latter court decision affects an accrued substantive right by adopting a shorter limitation period in which to file suit for certain plaintiffs, whose injuries occurred before the latter court decision, which conflicts with a prior court decision adopting a longer limitation period, such latter decision violates Section 28, Article xi of the Ohio Constitution, prohibiting application of retroactive laws... 8 IV. CONCLUSION V. CERTIFICATE OF SERVICE Page No. VI. APPENDIX Annx. Page Decision of the Court of Appeals for the Tenth District, Case No. 09AP-1076 (C.C. No ) Senegal v. Ohio Dept. of Rehabilitation and Correction, 1994 WL 73895, unreported (10th Dist., Franklin, Mar. 10, 1994) McCoy v. Toledo Correctional Institution, 2005 WL , unreported (Tenth Dist., Franklin, Apr. 21, 2005) McFadden v. Cleveland State University, 2007 WL , unreported (10th Dist., Franklin, Jan. 25, 2007) (McFadden I)

3 I. EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION This cause presents several critical issues involving court decisions, which provide guidance to Ohio claimants and which have the effect of law. Ohio litigants are placed at a disadvantage, jeopardizing their right to redress under the United States and Ohio constitutions, when they are not provided with firm legal standards. The effect of the lack of clear legal standards not only invites confusion, thereby compromising confidence in our legal system, but also, and more importantly, effectively bars the ability to vindicate our rights and remedies which our system of government was designed to protect. Further, when a branch of government confers a right but only to be taken away by another branch because it prefers to apply one law over another, given a set of circumstances, the citizen is left with lasting impressions of our judicial system -- injustice and distrust. The decision rendered in this case can only promote such lasting impressions. Clearly, here, Appellant and others who were similarly situated were led to believe and continued to rely on then existing and co-exiting laws that they had six years within which to file their claims against the state. In Senegal v. Ohio Dept of Rehabilitation and Correction, 1994 WL 73895, unreported (l Oth Dist., Franklin, Mar. 10, 1994), the Tenth District Court of Appeals (Court of Appeals herein), on appeal from the Court of Claims, ruled that the statute of limitation for age discrimination against the state is six years as set forth in R.C This remained good law throughout the events that led to Appellant's termination, which was in March From April 2005 until January 2007, the six-year limitation period continued to exist in conjunction with the two-year limitation period, as set forth in R.C See McCoy v. Toledo Correctional Institution, 2005 WL , unreported (Tenth Dist., Franklin, Apr. 21, 2005), and -1-

4 McFadden v. Cleveland State University, 2007 WL , unreported (10th Dist., Franklin, Jan. 25, 2007) (McFadden 1). Although one may argue that McCoy diminished the capacity of Senegal to remain as a good alternative precedent, the fact remains that Senegal continued to co-exist when the Court of Appeals stated that Senegal stood for the principle for which appellant cited. Senegal was cited for the proposition that age discrimination was governed by the six-year statute of limitation.' As Appellant's claim continued to be viable within the six-yearperiod, McFadden I cut short h,er ability to initiate her claim, applying it retroactively from the day of her termination in March Under McFadden I, which was decided on January 25, 2007, Appellant was given no more than two months in which to decide to file her claim. Assuming arguendo, and without conceding, that McCoy was definitive in its determination of the two-year limitation period, this, too, failed to provide Appellant the full two years in which she could have filed her claim. The inequitable result of retroactive application of case law in this instance is readily apparent to the unsuspecting litigant, when at the time of the accrual of the claim, the claimant, under then existing law, had the full six years (or two years) to bring commence her action. The Court of Appeals' decision under the foregoing circumstances would not promote the rule that each litigant would be afforded the limitation period in a given case; and, certainly, such decision, indeed, culminated in an inequitable result in this case. II. STATEMENT OF THE CASE AND FACTS Appellant is an African-American female, who commenced her employment with Appellee 'In Senegal, the appellant claimed damages againstthe state for age discrimination, pursuantto R.C This section was renumbered as R.C See McFadden I. According to the Court of Appeals in McCoy and McFadden I, there is no substantive difference between a claim for age discrimination and racial discrimination. -2-

5 in In June 2000, Ms. Williams suffered a work-related injury while working for Appellee that resulted in the grant of temporary total disability from October 7, 2003 to August 24, During her employment with Appellee and prior to her work-related injury, Appellant was also an Independent Beauty Consultant for Mary Kay Cosmetics Co. Appellant continued her position with the Mary Kay Cosmetics Co. as a consultant, though in a very limited capacity due to her work-related injuries. Because of her injuries, family members assisted Appellant with virtually all of her duties as a consultant, including, but not limited to, filling orders and delivering them. In February 2004, the Appellee launched an internal investigation of Appellant based on reports that she was working while receiving worker's compensation benefits. In June 2004, Appellee's agents contacted Appellant to arrange a purchase of Mary Kay products from Appellant. A meeting place was established to deliver the products to the Appellee's agents. The products were transported and delivered by Appellant's son. While receiving disability compensation, Appellant's family members discharged her duties as a Mary Kay consultant. Shortly after Appellee's June 2004 purchase ofproducts from Appellant's son, Appellant was informed by Appellee in August 2004 that she had the option of returning to part time transitional work or her position would be terminated. In November 2004, Appellant filed a charge of discrimination with the Ohio Civil Rights Commission (OCRC). Shortly after Appellant filed her charge with OCRC, the Appellee filed a motion with the Bureau of Workers' Compensation asserting that Appellant's benefits had been overpaid, and that her receipt of such benefits was fraudulent. In addition, shortly after filing her charge with OCRC, in December 2004, Appellant was indicted in Franklin County for one count of Workers Compensation Fraud, a felony of the fourth degree. As a result of the criminal indictment, Appellant's employment was terminated by Appellee -3-

6 in March of On June 23, 2005, a nolle prosequi was entered as to the felony charge of Workers Compensation Fraud, resulting in Appellant being exonerated on all criminal charges. Despite the dismissal of all criminal charges against Appellant, in August 2005, the Bureau of Workers' Compensation found that Ms. Williams had fraudulently received workers compensation benefits. Appellant then filed a second complaint with the OCRC on September 9, Appellant unsuccessfully appealed the Bureau's determination that she had fraudulently received workers compensation benefits. Appellant then sought to have the Industrial Commission vacate its orders finding fraud and overpayment of benefits. On February 15,2007, Magistrate Brooks ordered that Appellant was entitled to a writ of mandamus compelling the Industrial Commission to vacate its order finding an overpayment of temporary total disability and wage loss compensation, and also vacate the order fmding fraud. Appellee filed objections to Magistrate Brooks' decision. On May 24, 2007, the Tenth District Court of Appeals ovemxled the objections and ordered the Industrial Commission of Ohio to reinstate Appellant's compensation. Appellant filed her complaint against Appellee on March 25, 2008, claiming wrongftul discharge based on racial and age discriminatory practices under R.C. Chapter 4112, retaliatory discharge, abuse of process, breach of contract and wrongful termination. On April 29, 2008, Appellee filed its motion to dismiss. In the course of the parties' submission of replies and surreplies, the Court of Claims stayed the matter pending the resolution ofmcfadden v. ClevelandState University, 180 Ohio App.3d 810 (2009) (McFadden II). McFadden IIwas under review before this Court to determine whether a court of appeals errs by refusing to convene en banc to resolve an intradistrict conflict in two or more opinions rendered by the court. This Court held that failure to -4-

7 convene en banc is error. Based on this holding, the applicability of the six- and two-year limitation periods continued to co-exist. The Tenth District Court of Appeals failed to convene en banc in McFadden I in determining whether McCoy created a conflict with Senegal. On January 29, 2009, the Court of Appeals in McFadden II determined that there was no conflict created by McFadden Irequiring resolution through the conduct of en banc proceedings. On October 13, 2009, the Court of Claims Appellee's motion to dismiss. On November 11, 2009, Appellant filed her notice of appeal with the Court of Appeals. On July 8, 2010, the Court of Appeals affirmed the Court of Claims' entry of dismissal. Appellant appeals to this Court the Court of Appeals' Decision. III. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW Proposition of Law I: Where two court decisions are in conflict as to which statute of limitation apply to a claim, a plaintiff has a vested right to commence the action within the limitation period adopted by the court existing at the time the cause of action accrued. In DiCenzo v. A-Best Products Company (2008), this Court stated the following legal propositions in its syllabus: 1. An Ohio court decision applies retrospectively unless a party has contract rights or vested rights under the prior decision. (Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 209, 57 O.O. 411, 129 N.E.2d 467, followed.) 2. An Ohio court has discretion to apply its decision only prospectively after weighing the following considerations: (1) whether the decision establishes a new principle of law that was not foreshadowed in prior decisions, (2) whether retroactive application of the decision promotes or retards the purpose behind the rule defined in the decision, and (3) whether retroactive application of the decision causes an inequitable result. (Chevron Oil Co. v. Huson (1971), 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296, adopted and applied.) In this case, the Court of Appeals erred in holding that Appellant did not have a vested right -5-

8 under Senegal at the time her cause of action accrued. This decision is contrary to principles announced by this Court in Gregory v. Flowers (1972), 32 Ohio St.2d 48, which held: Although statutes of limitations are remedial in nature and may generally be classified as procedural legislation, a retroactive application which "operates to destroy an accrued substantive right" conflicts with Section 28, Article TI of the Ohio Constitution. In discussing Gregory, this Court held in Baird v. Loeffler ( 1982), 69 Ohio St.2d 533: Gregory provides a means to save from constitutional infirmity a statute of limitation which is applicable to actions accrued before its enactment: "`***(o)n the theory that a right to sue once existing becomes a vested right, and cannot be taken away altogether, it does not conclusively follow that the time within which the right may be asserted and maintained may not be limited to a shorter period than that which prevailed at the time the right arose, provided such limitation still leaves the claimant a reasonable time within which to enforce the right.' Although the discussions in Gregory and in Baird were in the context of statutory application, for purposes of O. Const. II, Section 28, the analysis should not be any different when it is centered on which statute of limitation period should be applied by the courts. O. Const. II, Section 28, Retroactive laws; laws impairing obligation of contracts, provides: The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this state. The legislature has sanctioned the courts to carry its laws into effect. The Court of Appeals should have held that McFadden I, and, indeed, McCoy, should be limited to prospectively-only application. Appellant has met all factors set forth in Chevron Oil Co. v. Huson. It should be noted that, historically, Ohio courts have analyzed the second factor, whether retroactive application of the decision promotes or retards the purpose behind the rule defined in the -6-

9 decision, and third factor, whether retroactive application of the decision causes an inequitable result, of the Huson test in determining an exception to the retroactive application of court decisions. Here, with regard to the second factor, the McFadden I and McCoy decisions actually thwart the rule involving statute of limitation. Upon the accrual of a cause of action, the plaintiff has a vested right. The legislature has provided claimants a six-year window in which they may vindicate their rights for redress. By striking the six-year period and placing a two-year period in its place, plaintiffs, including Appellant, who relied on the six-year period, which has been drastically reduced by four years, have been prejudiced and were effectively forever barred from bringing their claims. Further, the Court of Appeals' decision would not promote the rule that litigants should be given a reasonable time in which to file their claims. As to the third factor, certainly, the operation of McCoy and McFadden I retroactively under the circumstances have resulted in inequity. With regard to the first factor, whether the decision establishes a new principle of law that was,not foreshadowed in prior decisions, the Court in DiCenzo has regarded this factor as persuasive in determining whether a decision should be applied retrospectively because it gauges the foreseeability of the law being considered for retroactive application. According to the Court, "Backward application of such a decision causes great inequity to those who are burdened by unforeseen obligations." This Court appears to suggest that factors one and three should be considered together. As long as there is an existing law that directly conflicts with another law, both of which are in coexistence and in effect, the claimant does not have a firm grasp as to which law to follow. The inequity in this case occurred when McFadden Iexplicitly overruled Senegal on April 21, 2007, Appellant had approximately two months, an unreasonable amount of time, in which to file her action. -7-

10 Based on the above, Appellant seeks that where two court decisions are in conflict as to which statute of limitation apply to a claim, plaintiffs should be afforded a vested right to commence the action within the limitation period adopted by the court existing at the time the cause of action accrued. Proposition of Law No. II: To the extent that a latter court decision affects an accrued substantive right by adopting a shorter limitation period in which to file suit for certain plaintiffs, whose injuries occurred before the latter court decision and which conflicts with a prior court decision adopting a longer limitation period, such latter decision violates Section 28, Article II of the Ohio Constitution, prohibiting application of retroactive laws. Appellant incorporates herein by reference her arguments above regarding retroactive application of laws resulting in prejudice to claimants' substantive rights. In Gregory, this Court held in its syllabus: When the retroactive application of a statute of limitation operates to destroy an accrued substantive right, such application conflicts with Section 28, Article II of the Ohio Constitution. "Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective or retroactive." ' Groch v. General Motors Corp. (2008), 117 Ohio St.3d 192, citing Van Fossen, 36 Ohio St.3d at 106, quoting Cincinnati v. Seasongood (1889), 46 Ohio St [Parallel citations omitted.] Based on the retroactive application of McFadden I and the hindsight decision thereof respecting the explicit overruling of Senegal, Appellant was given no more than two months in which to file her claim. In the retroactive application of McCoy, Appellant was not given her right -8-

11 to the full two years in which to bring her claim. Based on the hindsight decision ofmcfadden II pertaining to the lack of conflict created by McFadden I, Appellant was never given an opportunity to file her claim. These actions contravene the spirit and law of O. Const. II, Section 28. IV. CONCLUSION For the reasons discussed above, this case presents matters of public and great general interest and a substantial constitutional question. Appellant respectfully requests that this Court accept jurisdiction in this case so the important issues will be reviewed on the merits. Dated: Akron, Ohio, f 7^^^ ^^ Z^d Z^? ^^ MICHAEL B. BOWLER (# ) Blakemore, Meeker & Bowler Co., L.P. 19 North High Street Akron, Ohio [Voice] [Facsimile] Counsel for Appellant SANDRA WILLIAMS

12 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the Memorandum in Support of Jurisdiction of Appellant Sandra Williams was served upon the following at his/her/its/their last address(es), by regular United States Mail, first class, postage prepaid, on the date indicated below: PETER E. DEMARCO (# ) Principal Attorney Assistant Attorney General State of Ohio 150 East Gay Street, 18th Floor Columbus, Ohio Counsel for Appellee BUREAU OF WORKERS' COMPENSATION Dated: Akron, Ohio, I^UGt)S+2J 2olo MICHAEL B. BbWLER (# ) Blakemore, Meeker & Bowler Co., L.P.A. 19 North High Street Akron, Ohio [Voice] [Facsimile] Counsel for Appellant SANDRA WILLIAMS -10-

13 APPENDIX

14 icite as Williams v. Bur. of Workers' Comp., 2010-Ohio-3210.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Sandra Williams, Plaintiff-Appellant, No. 09AP-1076 y : (C.C. No ) Bureau of Workers' Compensation, (ACCELERATED CALENDAR) Defendant-Appellee. D E C I S I O N Rendered on July 8, 2010 Blakemore, Meeker & Bowler Co., L.P.A., and Michael B. Bowler, for appellant. Richard Cordray, Attorney General, Peter E. DeMarco and Emily M. Simmons, for appellee. APPEAL from the Court of Claims of Ohio. BRYANT, J. { 1} Plaintiff-appellant, Sandra Williams, appeals from a judgment of the Court of Claims of Ohio granting the motion to dismiss of defendant-appellee, Bureau of Workers' Compensation. Because the trial court did not err in determining (1) the two-year statute of limitations in R.C applies to plaintiffs discrimination claim, and (2) the date when plaintiffs claim for wrongful termination accrued, we affirm. Appx. -1-

15 No. 09AP Facts and Procedural History { 2} In 1998, plaintiff began her employment with defendant. In June of 2000, plaintiff suffered a work-related injury, resulting in her receiving temporary total disability ("TTD") benefits beginning in September At the time plaintiff began receiving benefits, her doctor estimated she would be able to return to work in September { 3} In February of 2004, defendant began an internal affairs investigation to determine whether plaintiff, though receiving TTD compensation, was working as an independent beauty consultant for Mary Kay Cosmetics Co. ("Mary Kay") beginning in April of In August of 2004, defendant gave plaintiff the option either to return to work part-time with defendant or face termination. Plaintiff returned to work with defendant on August 25, { 4} Both parties, however, pursued claims against the other. In November of 2004, plaintiff filed a discrimination charge against defendant with the Ohio Civil Rights Commission ("OCRC"). Defendant filed a motion with the Industrial Commission of Ohio requesting the Industrial Commission find that plaintiff, due to her work for Mary Kay, was overpaid TTD benefits and fraudulently received them. Based on the results of the investigation, the state of Ohio indicted plaintiff in December 2004 on one count of workers' compensation fraud in violation of R.C , a fourth-degree felony. Defendant terminated plaintiff from her position of employment in March 2005; plaintiff unsuccessfully appealed her termination. { 5} On June 23, 2005, the state entered a nolle prosequi on the sole felony charge then pending against plaintiff, releasing plaintiff from all criminal liability. In the action before the Industrial Commission, a district hearing officer of the Industrial Appx. -2-

16 No. 09AP Commission in August 2005 granted defendant's motion, finding plaintiff not only was overpaid TTD benefits, but she fraudulently received the benefits by concealing she worked for Mary Kay. On September 9, 2005, plaintiff filed a second complaint with the OCRC. { 6} Plaintiff appealed the decision of the district hearing officer. On December 5, 2005, a staff hearing officer of the Industrial Commission affirmed the district hearing officer's decision finding overpayment and fraud. The Industrial Commission denied plaintiffs request for an appeal. Unable to appeal from the Industrial Commission's decision, plaintiff filed a mandamus action in this court asserting the Industrial Commission abused its discretion in concluding plaintiff was overpaid TTD benefits and fraudulently obtained them. Based on the record from the Industrial Commission, this court concluded the evidence failed to demonstrate plaintiff was working for Mary Kay. Accordingly, we granted plaintifps request for a writ of mandamus and ordered the Industrial Commission to vacate its finding of fraud and overpayment and to find instead that plaintiff was entitled to said compensation. {17} On March 25, 2008, plaintiff filed a complaint against defendant and the Industrial Commission in the Court of Claims; plaintiff subsequently dismissed the Industrial Commission as a defendant pursuant to Civ.R. 41(A). In her complaint, plaintiff asserted claims for wrongful discrimination, retaliatory discharge, abuse of process, breach of contract, and wrongful termination. On April 29, 2008, defendant filed a Civ.R. 12(B)(6) motion to dismiss plaintiffs complaint for failure to state a claim upon which relief could be granted. The Court of Claims granted defendant's motion to dismiss on Appx. -3-

17 No. 09AP October 13, 2009, finding the two-year statute of limitations for civil actions against the state set forth in R.C (A) barred all the claims of plaintiffs complaint. II. Assignments of Error { 8} Plaintiff timely appeals, assigning the following errors: III. Standard of Review ASSIGNMENT OF ERROR ONE THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING APPELLEE'S MOTION TO DISMISS BECAUSE (1) THERE WAS A CONFLICT AS TO WHICH STATUTE OF LIMITATION[S] WAS APPLICABLE TO APPELLANT'S CLAIMS, SIX YEARS UNDER R.C OR TWO- YEARS UNDER R.C , AND (2) THE COURT'S DECISION IN McFADDEN I SHOULD BE GIVEN PROSPECTIVELY-ONLY APPLICATION: ASSIGNMENT OF ERROR TWO THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING APPELLEE'S MOTION TO DISMISS BECAUSE APPELLANT'S CLAIMS DID NOT ACCRUE UNTIL MAY 24, 2007, WHEN THE TENTH DISTRICT COURT OF APPEALS AFFIRMED THE MAGISTRATE'S DECISION REINSTATING APPELLANT'S COMPENSATION AND A FINDING OF NO FRAUD. { 9} In deciding whether to dismiss a complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, the trial court must presume all factual allegations in the complaint are true and construe the complaint in the light most favorable to the plaintiff, drawing all reasonable inferences in favor of plaintiff. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. Before the court may dismiss the complaint, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling the plaintiff to recovery. O'Brien v. Univ. of Community Tenants Union Appx. -4-

18 No. 09AP (1975), 42 Ohio St.2d 242, syllabus. We review de novo the dismissal of a complaint pursuant to Civ.R. 12(B)(6). Shockey v. Wilkinson (1994), 96 Ohio App.3d 91, 94. { 10} The Court of Claims determined the applicable statute of limitations bars plaintiffs complaint. A complaint may be dismissed pursuant to Civ.R. 12(B)(6) as failing to comply with the applicable statute of limitations if the face of the complaint makes clear that the action is time-barred. Steiner v. Steiner (1993), 85 Ohio App.3d 513, ; Swanson v. Boy Scouts of Am., 4th Dist. No. 07CA663, 2008-Ohio-1692, 6, quoting Doe v. Robinson, 6th Dist. No. L , 2007-Ohio-5746, 17, citing Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 11. Only where the complaint shows conclusively on its face that the action is time-barred should a Civ.R. 12(B)(6) motion to dismiss based upon the statute of limitations be granted. Swanson, supra, quoting Jackson v. Sunnyside Toyota, Inc., 175 Ohio App.3d 370, 2008-Ohio-687, 15. As plaintifps complaint plainly sets forth allegations of her five distinct claims as well as the dates when the allegedly wrongful actions took place, we may apply the appropriate statute of limitations to the dates in the complaint to determine whether plaintiffs complaint is timely. IV. First Assignment of Error - Discrimination Claim { 11} Plaintiffs first assignment of error asserts the trial court erred in determining the statute of limitations that applies to plaintiffs discrimination claim. Plaintiff argues the trial court erroneously applied the two-year statute of limitations in R.C to plaintiffs claims when the six-year statute of limitations under R.C governs her action. Appx. -5-

19 No. 09AP { 12} To the extent set forth in the provisions of R.C. Chapter 2743, "the state 'waives its immunity from liability * * * and consents to be sued.' " Rankin v. Ohio Reformatory for Women, 10th Dist. No. 09AP-524, 2009-Ohio-6575, 115, quoting R.C (A)(1). Subject to limitations that do not apply here, R.C (A) provides the applicable statute of limitations for civil actions against the state, stating "[s]uch actions 'shall be commenced no later than two years after the date of accrual of the cause of action or within any shorter period that is applicable to similar suits between private parties.'" Id., quoting R.C (A). { 13} Despite the two-year statute of limitations for civil claims against the state contained in R.C (A), plaintiff asserts the statute of limitations for her discrimination claim under R.C is six years. See R.C (A) (making it an unlawful discriminatory practice "[f]or any employer, because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person, to discharge without just cause"). Plaintiff relies on R.C , which states "an action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued." { 14} Plaintiff asserts that at the time she filed her complaint, two cases from this court, when compared to more recent cases, created an intra-district conflict regarding the applicable statute of limitations. The cases, Harris v. Ohio Dept of Adm. Serv. (1989), 63 Ohio App.3d 115, and Senegal v. Ohio Dept of Rehab. & Corr. (Mar. 10, 1994), 10th Dist. No. 93AP , both applied a six-year statute of limitations to discrimination claims brought against the state, not the two-year statute of limitations in R.C Appx. -6-

20 No. 09AP { 15} Plaintiff concedes that, subsequent to Harris and Senegal, this court unequivocally concluded the two-year statute of limitations governs discrimination claims against the state under R.C Chapter See McFadden v. Cleveland State Univ. ("McFadden f'), 10th Dist. No. 06AP-638, 2007-Ohio-298; McCoy v. Toledo Correctional Inst., 10th Dist. No. 04AP-1098, 2005-Ohio In so concluding, McFadden 1 explicitly overruled Senegal. Plaintiff nonetheless contends that because she filed her discrimination claim while a conflict still existed concerning the applicable statute of limitations, the trial court should not have dismissed her complaint as time-barred under R.C { 16} McFadden 1 was decided on January 25, 2007, more than one year before plaintiff filed her complaint in the Court of Claims on March 25, Accordingly, plaintiffs argument that McFadden I should not be applied retroactively is unpersuasive. See McFadden v. Cleveland State Univ. ("McFadden If'), 180 Ohio App.3d 810, Ohio-362 (rejecting the same argument plaintiff poses). { 17} McFadden 11 addressed whether this court should only prospectively apply McCoy, the case McFadden I expressly reaffirmed. We held prospective-only application of McCoy would be appropriate only if that case "actually announced a new principle of law when it found that the two-year statute of limitations applies to discrimination claims brought against the state." McFadden ll at 13. Since "a number of cases decided after Senegal' rejected the application of the six-year statute of limitations in favor of the twoyear statute, McFadden 11 held "appellant had no vested rights under Senegal at the time his cause of action accrued, and none of the factors for applying discretionary prospective Appx. -7-

21 No. 09AP application apply in appellant's favor." Id. Similarly here, plaintiff presents no basis not to apply the two-year statute of limitations to her discrimination claim. { 18} Apart from her argument about retroactive application, plaintiff asserts Harris remains good law as no case has ever expressly overruled it. With that premise, plaintiff contends an intra-district conflict remains regarding the appropriate statute of limitations. In determining applicable precedent, courts apply a "principle that the more recent decision on a specific issue is controlling precedent." McFadden ll at 4. Although Harris has not been expressly overruled, McCoy and McFadden / eliminated it as viable precedent. { 19} Accordingly, the trial court did not err in determining the statute of limitations that applies to plaintiffs discrimination claim is the two-year limitation contained in R.C PlaintifPs first assignment of error is overruled. V. Second Assignment of Error - Accrual Date {120} PlaintifPs second assignment of error asserts her wrongful termination claim did not accrue until May 24, 2007, the date this court adopted the magistrate's decision concluding plaintiff was not overpaid TTD compensation and vacating the Industrial Commission's finding of fraud. She thus contends that even under a two-year statute of limitations, her complaint filed March 25, 2008 is timely. { 21} Determining the date a cause of action accrued is a question of law reviewed de novo on appeal. Bowman v. Tyack, 10th Dist. No. 08AP-815, 2009-Ohio- 1331, 10, citing Ruckman v. Zacks Law Group LLC, 10th Dist. No. 07AP-723, Ohio-1108, 17. See also O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, paragraph one of the syllabus (stating that "[a]bsent legislative definition, it is left to the Appx. -8-

22 No. 09AP judiciary to determine when a cause 'arose' for purposes of statutes of limitations"). "Ordinarily, a cause of action accrues and the statute of limitations begins to run at the time the wrongful act was committed." DiNozzi v. Ohio State Dental Bd., 10th Dist. No. 08AP-609, 2009-Ohio-1376, 115, quoting Collins v. Sotka ( 1998), 81 Ohio St.3d 506, 507 (internal quotation marks omitted). { 22} Plaintiff relies on Esselbume v. Ohio Dept of Agriculture ( 1990), 64 Ohio App.3d 578, which addressed the accrual date for a claim for wrongful exclusion from employment, to support her contention that her cause of action accrued when this court determined her mandamus action. In that case, the State Personnel Board of Review ("SPBR") affirmed Esselburne's layoff, but a mandamus action determined the layoff was unlawful and ordered Esselburne's reinstatement in August Although Esselburne ultimately filed his complaint for wrongful exclusion in the Ohio Court of Claims on November 7, 1989, the court granted a motion to dismiss based on Esselburne's failure to file within the statute of limitations. Applying the two-year statute of limitations in R.C , this court concluded "[a]n order of reinstatement issued by a court on appeal from a decision of the SPBR constitutes a determination that the exclusion was wrongful." Id. at 581. Because plaintiffs order of reinstatement occurred in August 1987, Esselburne decided plaintifps claim for wrongful exclusion from employment accrued, at the latest, on the date of his reinstatement. Id. {123} PlaintifPs reliance on Esselbume for the proposition that her claim did not accrue until this court's decision on May 24, 2007 is flawed. Initially, Esselburne addressed the accrual date for a claim of wrongful exclusion from employment, not an accrual date in general. Plaintiff does not assert a claim for wrongful exclusion from Appx. -9-

23 No. 09AP employment but a claim for wrongful termination. Secondly, Esselburne's underlying mandamus action directly related to his cause of action: Esselburne relied upon that mandamus action to determine the exclusion from employment claim actually was wrongful. Here, plaintiffs mandamus action involved her receipt of workers' compensation benefits, but it did not address employment status in any way: whether plaintiff wrongfully or fraudulently received workers' compensation benefits is separate from plaintiffs employment status. { 24} A judicial decision generally is not necessary to trigger the applicable statute of limitations. See, e.g., Bell v. Ohio State Bd. of Trustees, 10th Dist. No. 06AP- 1174, 2007-Ohio-2790, 27 (stating "[a] cause of action for breach of contract accrues when the breach occurs or when the complaining party suffers actual damages"); Burden v. Lucchese, 173 Ohio App.3d 210, 2007-Ohio-4497, 21 (finding "the statute of limitations begins to run" in medical malpractice action when "the injured party is put on notice of the need to pursue possible remedies and not when an attorney actually identifies the pertinent legal injury and remedy"); Kozma v. AEP Energy Servs., 10th Dist. No. 04AP-643, 2005-Ohio-1157, 38 (finding cause of action for wrongful discharge accrues "when [the plaintiff] was unequivocally informed" of his discharge). As neither this court nor any other has expanded the narrow holding in Esselburne to apply to the accrual date of any cause of action but wrongful exclusion from employment, we decline plaintiffs invitation to do so. Esselburne is not controlling, and this court's decision on May 24, 2007 is not the accrual date of plaintiffs claim for wrongful termination. Appx. -10-

24 No. 09AP { 25} Although plaintiffs second assignment of error appears directed only to her wrongful termination claim, we also address the two-year statute of limitations as applied to her remaining claims. A. Discriminatory Termination { 26} The first count of plaintiffs complaint asserts a claim for discriminatory termination pursuant to R.C A claim of discrimination accrues "when the discriminatory act or practice occurs." Tablack v. Wellman, 7th Dist. No. 04-MA-218, 2006-Ohio-4688, 99. If, however, "the complaint alleges discrete discriminatory acts, each discrete act can trigger a new limitations period." Id., citing Natl. R.R. Passenger Corp. v. Morgan (2002), 536 U.S. 101, 122, 122 S.Ct. 2061, Termination is an example of what may be a discrete discriminatory act. Id., citing Morgan at 114. { 27} PlaintifPs complaint alleges she "was continuously treated differently than similarly situated non-minority employees." (Complaint, 37.) According to her complaint, the "proffered reason for terminating Plaintiff was nothing more than a pretext designed to mask the fact that the Plaintiff was terminated on the basis of her racial composition." (Complaint, 40.) The latest discrete discriminatory act plaintiff alleges is her termination from employment, which her complaint states occurred in March Her March 25, 2008 complaint thus was filed outside the two-year statute of limitations. B. Retaliatory Discharge {128} Plaintiff next asserts a claim for retaliatory discharge as a result of her filing a claim with the OCRC. According to plaintifps complaint, the instances of alleged retaliation are defendant's initiating proceedings against her and discharging her from employment. As her complaint states her discharge occurred in March 2005 and her Appx. -11-

25 No. 09AP discharge from employment was the later of two instances of alleged retaliation, her March 2005 discharge from employment is the latest possible accrual date for this claim. Her March 25, 2008 complaint thus was filed outside the two-year statute of limitations. C. Abuse of Process {q29} Plaintiffs complaint also asserts a claim for abuse of process, stating defendant used the criminal proceedings instituted against plaintiff as a pretext to terminate her from employment. Under those allegations, plaintifps claim accrued either on the date of her termination in March 2005 or when the state entered a nolle prosequi on the indictment pending against plaintiff on June 23, Even if we apply the later of those two dates, plaintiffs claim for abuse of process accrued on June 23, Her March 25, 2008 complaint thus was filed outside the two-year statute of limitations. D. Breach of Contract { 30} PlaintifPs complaint alleges defendant breached its contract with her when it violated a clause in the employee handbook that required defendant to return plaintiff to the same position and worksite when it rehired her. According to the complaint, defendant instead transferred plaintiff to a new worksite and "forced plaintiff to travel to Canton to work," also violating a handbook provision precluding certain activities when the employee has restrictions from a physician. (Complaint, 63.) A claim for breach of contract accrues when the breach actually occurs. See Bell at 27. Plaintiff returned to work on August 25, The complaint does not specify on what date defendant required plaintiff to travel to Canton, but it necessarily occurred sometime prior to her termination in March The latest date at which plaintiffs claim for breach of contract Appx. -12-

26 No. 09AP accrued is March Her March 25, 2008 complaint thus was filed outside the two-year statute of limitations. E. Wrongful Termination { 31} Lastly, plaintiff asserts a claim for wrongful termination, arguing defendant had no cause to terminate plaintiff because she did not engage in any fraudulent behavior. A claim for wrongful termination accrues on the actual date of termination from employment. See Gleason v. Ohio Army Nati. Guard (2001), 142 Ohio App.3d 697, 703. Because we concluded plaintiffs Esselbume argument is unpersuasive, plaintiffs claim for wrongful termination accrued at the latest on March 31, Her March 25, 2008 complaint thus was filed outside the two-year statute of limitations. { 32} The trial court did not err in granting defendant's motion to dismiss based on plaintiffs failure to commence her action within the two-year statute of limitations set forth in R.C (A). PlaintifPs second assignment of error is overruled. VI. Disposition { 33} Because the trial court did not err in determining the two-year statute of limitations contained in R.C (A) applied to plaintiffs claims, rendering all five of plaintiffs claims untimely, we overrule plaintiff's two assignments of error and affirm the judgment of the Court of Claims. Judgment affirmed. TYACK, P.J., and FRENCH, J., concur