COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59195 ROSA LEDGER KANE : : : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : CLEVELAND METROPOLITAN GENERAL : OPINION HOSPITAL : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. 157860 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: VINCENT F. GONZALEZ 2159 West Boulevard Cleveland, Ohio 44102 For Defendant-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: MICHAEL P. BUTLER and STEVEN J. CELEBREZZE Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- SPELLACY, J.: Plaintiff-appellant Rosa Ledger Kane ("appellant") appeals from the trial court's judgment dismissing her case against defendant-appellee Cleveland Metropolitan General Hospital ("appellee"). On October 7, 1988, appellant filed a complaint against appellee, her former employer, alleging it discharged her because she filed a workers' compensation claim, a violation of R.C. 4123.90./1\ At trial, after appellant completed the presentation of her evidence, the trial court granted a motion to dismiss made by appellee pursuant to Civ. R. 41(B)(2). Appellant subsequently moved for findings of fact and conclusions of law. In response, appellee submitted proposed findings of fact and conclusions of law, which the trial court adopted verbatim. The findings of fact reveal the following: In 1982, appellant injured her back while working as a nurse's assistant at appellee. As a result of her injury, appellant filed a worker's compensation claim and took a leave of /1\ R.C. 4123.90 provides in pertinent part: No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim *** 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 *** The action shall be forever barred unless filed within one hundred eighty days immediately following the discharge, demotion, re- assignment, or punitive action taken. -3- absence. A letter from appellant's physician, dated April 25, 1983, indicates that appellant was not able to do heavy lifting or repeated bending. A return to work certificate, signed by appellant's physician, dated May 2, 1983, states appellant could return to light work. A second return to work certificate, dated July 5, 1983, states appellant could return to light work with the remark that she should not do any heavy lifting. Appellant subsequently returned to work, transferring to the position of emergency room receptionist. On December 31, 1985, appellant transferred to the position of medical records clerk. Appellant reinjured her back on April 29, 1986, and filed a second workers' compensation claim. On May 15, 1986, appellant requested a leave of absence from April 29, 1986, until May 11, 1986. Between May 14, 1986, and May 17, 1986, appellant worked approximately two days. Appellant then made several additional requests for leaves of absence. Appellant's last request, filed September 4, 1986, requested a leave of absence beginning April 29, 1986, and did not provide a time for an end to the leave. Appellant supported her September 4, 1986, request by providing a disability certificate, signed by her physician, dated September 4, 1986, stating she had been incapacitated on April 29, 1986, and that she would continue to be incapacitated until October 27, 1986. On November 2, 1986, appellee granted appellant's request, noting that the leave of absence would end April 29, 1988. -4- Between May 27, 1986 and August 30, 1986, appellant made five requests for a transfer to a different position. On September 4, 1986, Fred Hesse, appellee's manager of employment and records, circulated a memorandum stating there was no need to consider appellant's requests for a transfer because she was on a leave of absence. At trial, Mr. Hesse and Michael Camburako, appellee's supervisor of personnel, testified that, pursuant to a collective bargaining agreement, an employee who has transferred to a new position is not eligible for another transfer until he or she has worked in the new position for nine months, consisting of three months probation plus an additional six months. On September 23, 1987, appellant contacted appellee and requested information concerning why she could not return to work. She also presented a return to work certificate, signed by her physician, dated September 18, 1987, stating she could return to light work with the following restrictions -- no prolonged sitting, repeated bending or heavy lifting. Appellee informed appellant that she could not return to work because the position of medical records clerk required lifting and bending. On April 29, 1988, appellee terminated appellant's employment. Mr. Camburako testified that appellee terminated appellant pursuant to a policy requiring automatic termination when a leave of absence lasts for two years. Appellant timely appeals and raises the following assignments of error: -5- I. APPELLANT PROVED A PRIMA FACIE CASE OF DISCRIMINATION UNDER SECTION 4123.90 ORC AND IT WAS ERROR FOR THE COURT TO DISMISS THE APPELLANT'S CASE UNDER RULE 41(B) ORCP. II. THE COURT ERRED IN HOLDING THAT APPELLEE HAD ESTABLISHED A NON-DISCRIMINATORY REASON FOR APPELLANT'S DISCHARGE AND IN TREATING APPELLEE'S LEAVE POLICY AS AN ABSOLUTE BAR TO AN ACTION UNDER SECTION 4123.90 ORC. III. THE COURT COMMITTED REVERSIBLE ERROR BY ADOPTING APPELLEE'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AS ITS OWN AND IN FAILING TO ISSUE ITS OWN FINDINGS OF FACT AND CONCLUSIONS OF LAW PURSUANT TO 52 ORCP. I and II. We address appellant's first and second assignments of error together. Under these assignments of error appellant contends the trial court erred when it granted appellee's motion to dismiss. Appellant's assignments of error lacks merit. Civ. R. 41(B)(2) provides in pertinent part: After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. In addressing a motion to dismiss made pursuant to Civ. R. 41(B)(2), the trial court reviews the evidence and the law. Levine v. Beckman (1988), 48 Ohio App. 3d 24, 27. "In this respect, the trial court is not required to construe the evidence -6- in favor of the non-moving party, but rather may weigh the evidence and render judgment." Id. A review of the record reveals the trial court could properly find that appellant failed to meet her burden of demonstrating appellant terminated her because she filed a workers compensation claim. In Vince v. Parma Community General Hospital (January 21, 1988), Cuyahoga App. No. 53180, unreported, we addressed the validity of an employer's leave of absence policy in relation to R.C. 4123.90, finding that "[a]n employer's bona fide leave of absence policy at least rebuts the inference of a retalitory motive since such a policy on its face concerns only the duration of the employee's absence from employment." Id. at 8-9. See also Bertrand v. Collinwood Services CTR. (May 16, 1991), Cuyahoga App. No. 58508, unreported. Vince went on to state that "*** while the *** leave of absence policy is not an absolute defense to *** [the employee's] claims that she was rged in violation of R.C. 4123.90, nothing in the record refutes this defense." Id. at 10. Similarly, in the instant case, nothing in the record, including appellee's refusal to transfer appellant or allow her to return to work, refutes appellee's defense that it terminated appellant solely on a neutral leave of absence policy. Accordingly, appellant's first and second assignments of error are not well taken. -7- III. In her third assignment of error, appellant contends the trial court erred when it adopted appellee's proposed findings of fact and conclusions of law verbatim. Appellant's assignment of error lacks merit. A trial court may adopt proposed findings of fact and conclusions of law without alteration as long as it insures they are accurate in fact and law. Paxton v. McGranahan (October 1, 1985), Cuyahoga App. No. 49645, unreported, page 9; see also Hinton v. Dillon Company (March 27, 1985), Summit App. No. 11866, unreported, citing to United States v. El Paso Natural Gas Co. (1964), 376 U.S. 651. A review of the record reveals that the proposed findings of fact and conclusions of law submitted by appellee are accurate. Accordingly, appellant's third assignment of error is not well taken. Judgment affirmed. -8- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and PATTON, J., CONCUR LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .