COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72556 MICHAEL R. OKER, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : AMERITECH CORP. & AMERITECH : OHIO, : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 10, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 291700 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Niki Z. Schwartz Orville E. Stifel, II GOLD, ROTATORI & SCHWARTZ 1500 Leader Building 526 Superior Avenue, N.E. Cleveland, Ohio 44114 For defendants-appellees: Janette M. Louard Robert M. Wolff DUVIN, CAHN & HUTTON 1301 East Ninth Street Erieview Tower, 20th Floor Cleveland, Ohio 44114-1886 -2- NAHRA, P.J.: Michael Oker, appellant, appeals the trial court's grant of summary judgment in favor of Ameritech Ohio and the Ameritech Corporation in Chicago (hereinafter Ameritech ), appellees, on appellant's complaint alleging age discrimination pursuant to R.C. 4112.02(N) and R.C. 4112.99. The trial court granted summary judgment by finding that Oker did not timely file his claim within the then applicable 180 day period. Appellant, an attorney, was a seventeen-year employee of the legal department of first Ohio Bell, then Ameritech Ohio, a subsidiary of Ameritech. In 1994 he was one of three attorneys assigned to Ameritech Ohio's litigation subsection of its legal department. In the fall of 1994, Ameritech announced that it was disbanding all its subsidiaries' legal departments and invited Ameritech Ohio's attorneys to apply for positions with a centralized legal department. On November 9, 1994, appellant was told that he would not be hired by Ameritech and that he would remain in his position until January, 1995 when the Ameritech Ohio's legal department would be disbanded. In January, 1995, appellant continued to work at Ameritech Ohio as a non-management employee while he searched for work as an attorney. On April 11, 1995, a younger attorney was hired by Ameritech. Appellant filed his complaint alleging age discrimination on June 29, 1995. I. Appellant's first assignment of error reads: -3- I. THE TRIAL COURT ERRED IN HOLDING THAT APPELLANT'S STATUTORY AGE CLAIM IS BARRED BY THE STATUTE OF LIMITATIONS. An appellate court's power to review a trial court's decision on a motion for summary judgment is conducted de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1158. A court may grant a motion for summary judgment pursuant to Civ.R.56 when it determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears form the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 369 N.E.2d 267, 274. Under former R.C. 4112.02(N), a claim for age discrimination was required to be filed within 180 days. It is well settled in Ohio that for a cause of action to accrue and for the statute of limitation to begin to run, the injury caused must be presently injurious. Children's Hosp. v. Ohio Dept. of Pub. Welfare (1982), 69 Ohio St.2d 523, 433 N.E.2d 187. Where a plaintiff alleges age discrimination, this court has held that the statute of limitations begins to run when the alleged discriminatory act is committed. Mizenko v. First Catholic Slovak Ladies Association (1989), 49 Ohio App.3d 6, 550 N.E.2d 541. In this case, appellant was informed in the fall of 1994, that all the positions in Ameritech Ohio's legal department were being eliminated and that the attorneys would have to apply for positions -4- with Ameritech. Accordingly, if Ameritech illegally discriminated against appellant based upon his age, the discriminatory act suffered by appellant would not be the termination from employment as an attorney, but rather would be the failure of Ameritech to hire him based upon his age. Appellant was informed he was not hired by Ameritech on November 9, 1994. This was the alleged act of age discrimination. The 180 day statute of limitations began to run at that time and ended May 8, 1995. Appellant did not file this action until June 29, 1995. Appellant argues that the statute of limitations should not begin to run until a plaintiff can make a showing of a prima facie case of discrimination as set forth in Barker v. Scoville, Inc. (1983), 6 Ohio St.3d 146, 451 N.E.2d 807. Here, appellant claims he could not establish a prima facie case until his replacement was hired. The rules set forth to establish a prima facie case of discrimination which Barker describes are those of an indirect method of proof and an evidentiary framework, not the requisite elements to file a lawsuit. Appellant cites Bd. of Ed. of Lordstown Local School Dist. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 252, 421 N.E.2d 511, to support his claim that the statute of limitations did not begin to run until he was terminated from his position. In Lordstown, the Ohio Supreme court found that the statute of limitations for a discrimination claim brought by tenured teachers whose contracts were not renewed occurred at the end of their last contract, not -5- when they were informed of their employer's intent not to renew their teaching contracts. Although the facts in Lordstown appear similar to those in this case, Lordstown is not applicable to this case. In Lordstown, the alleged discriminatory act was the failure by the Board of Education to automatically renew the tenured teachers' contracts, an event which occurred at the expiration of their last contracts. In this case, the alleged discriminatory act was the failure to hire appellant on November 9, 1994. The date appellant's position was terminated was not discriminatory in this case because the entire legal department was eliminated. The facts in this case parallel those in Delaware State College v. Ricks (1980), 449 U.S. 250, which the Lordstown court distinguished. In Ricks, plaintiff, a college professor, was denied tenure, but given a one-year contract with notice the college intended to terminate him at the expiration of the one year. The United States Supreme Court held the discriminatory act was failure to grant tenure and the statute of limitations began to run on that date. Likewise here, it is the failure to hire that is the alleged discriminatory act which triggers the running of the statute of limitations, not the failure to renew or continue appellant's employment. For these reasons, appellant's first assignment of error is overruled. II. Appellant's second assignment of error reads: II. THE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT ON STATUTE OF LIMITATIONS GROUNDS, WHEN IT ALLEGED -6- FACTS CONSTITUTING THE TORT OF WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY, WHICH IS GOVERNED BY THE 4-YEAR STATUTE IN R.C. 2305.09(D). Appellant's complaint did not allege wrongful discharge, he did not move the trial court for leave to amend his complaint to state a cause of action for wrongful discharge, and he did not argue in response to appellees' motion for summary judgment that he was wrongfully discharged. Appellant cannot raise for the first time upon appeal an argument not brought before the trial court. See, e.g., Allis-Chalmers Credit Corp. v. Herbolt (1984), 17 Ohio App.3d 230, 479 N.E.2d 293, 297. Appellant's second assignment of error is overruled. Judgment affirmed. -7- It is ordered that appellees 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. JOSEPH J. NAHRA PRESIDING JUDGE TIMOTHY E. McMONAGLE, J., CONCURS. KARPINSKI, J., DISSENTS (See attached dissenting opinion.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72556 : : :MICHAEL R. OKER, Plaintiff-Appellant : : DISSENTING v. : : OPINION AMERITECH CORP. & AMERITECH OHIO, : : : Defendants-Appellees : DATE: DECEMBER 10, 1998 KARPINSKI, J., DISSENTING: I respectfully dissent from the majority's draconian application of the 180-day statute of limitations in this case. R.C. 4112.08 specifically provides that civil rights statutes shall be liberally construed. The Supreme Court of Ohio cited this provision in the context of a statute of limitations question. Board of Ed. of Lordstown Local School Dist. v. Ohio Civil Rights Commission (1981), 66 Ohio St.2d 252, 256-257. The Supreme Court in Lordstown determined, contrary to the majority, that the limitations period began to run in an employment discrimination case when the teacher's contract expired rather than the day the teacher was served with written notice of non-renewal.1As in Lordstown, I would not deem the date 1 Unlike the case at bar which involved a 180-day limitations period, Lordstown involved a 1-year limitations period that was subsequently extended to 2 years. -2- of notice of a future termination as the date when an age discrimination claim accrued. Ohio courts have routinely followed Lordstown and have declined to follow the sole federal case cited by the majority.2 The majority's reliance on Ricks (ante at pp. 5-6), to support its argument to the contrary, ignores the peculiarity of university faculty contracts involved in Ricks. The real decision to employ faculty for another year is made in tenure decisions, which are made well in advance of the date of termination. The reasons are many. University faculty are usually recruited nationally and hired long before the academic year begins. The decision to deny tenure, however, is the key because without it faculty cannot be retained. The Ohio Supreme Court in Lordstown specifically recognized that this unique feature of professorial tenure is the reason the limitations period commenced in Ricks upon notice of the denial of tenure. Id. at 255. The special factor of university tenure, however, did not occur in the Lordstown Local School case. Nor did anything like it occur in the case at bar. Therefore, there is 2 E.g., Cincinnati Metropolitan Housing Authority v. State Employment Relations Board (1990), 53 Ohio St.3d 221 (90-day limitations period for unfair labor practice charge begins to run when an unlawful act occurs, not upon advance notice of the act); and FraternalOrder of Police, Ohio Labor Council, Inc. v. Hubbard Twp. Trustees (1990), 68 Ohio App.3d 843 (90-day limitations period begins to run on claim for failure to recall laid off employee when she learned her employer was subcontracting her former position, rather than when she was laid off). -3- sufficient reason to question the applicability of Ricks over Lordstown to the case at bar.3 The most objectionable aspect of the majority's opinion is that it ignores the fundamental approach of Lordstown concerning the application of the statute of limitations to claims of employment discrimination. The Supreme Court of Ohio quotes the following from a federal case: There is an additional factor equally vital to the resolution of this case. Title VII is rife with procedural requirements which are sufficiently labyrinthine to baffle the most experienced lawyer, yet its enforcement mechanisms are usually triggered by laymen. Were we to interpret the statute's procedural prerequisites stringently, the ultimate result would be to shield illegal discrimination from the reach of the Act. Prior decisions, both of the Supreme Court and of this Circuit have, for this reason, taken a flexible stance in interpreting Title VII's procedural provisions. We follow this realistic approach today. Lordstown, citing Egelston v. State University College at Geneseo (C.A.2, 1976) 535 F.2d 752, 754-755. In applying this flexibility, the Supreme Court of Ohio cited one of its earlier opinions addressing the statute of limitations: Normally, a cause of action does not accrue until such time as the infringement of a right arises. It is at this point that the time within which a cause of action is to be commenced begins to run. The time runs forward from that date, not in the opposite direction, and thus when one's conduct is not presently injurious a statute of limitations begins to run against an action for consequentialinjuries resulting from such act only from the time that actual damage ensues. 3 Lordstown also recognizes that federal cases are not always applicable to interpret R.C. Chapter 4112. Accord De Loach v. American Red Cross (N.D. Ohio 1997), 74 FEP 663 ( The fact that a state legislates in areas also treated under federal law does not mean the state statutes must exactly fit or be squeezed in to the federal mold. ). -4- Lordstown, citing State, ex rel. Local Union 377 v. Youngstown (1977), 50 Ohio St.2d 200, at 203-204. Despite the absence of any present injury or ensuing actual damage, the majority holds that the date of notice of a future employment termination constitutes the date when a discrimination claim accrues. Even if one were inclined to use such date, however, it is impossible on this record to hold that Oker's claim is barred as a matter of law. The majority opinion ignores evidence of record which does not support its result, and improperly selects the most unfavorable scenario, contrary to our well-established obligation when we review summary judgment. The majority maintains that Oker was notified by defendants on November 9, 1994 that he was terminated effective December 31, 1994. It chooses, contrary to Lordstown and its progeny, to use this November 9, 1994 notification date as the date Oker's claim accrued. The majority ignores, however, that Oker was also notified by defendants in late December 1994" that he was terminated effective January 8, 1995. (Depo. at 429.) Under the majority's own reasoning, Oker's claim was timely filed in this case, without regard to any other issue, if this second notice of a different termination date occurred as late as December 31, 1994.4 4 Under Lordstown, this action was timely filed regardless of whether the original termination date of December 31, 1994, or the subsequent termination date of January 8, 1995, is used to begin the 180-day statute of limitations. -5- Defendants created significant ambiguity by giving Oker one notice followed by a different notice. This ambiguity was further compounded by rehiring him for a different position. When viewed in the light most favorable to Oker, as we are required on a motion for summary judgment, his employment discrimination claim did not accrue more than 180 days before he filed this action. Moreover, these circumstances are sufficient to raise a factual question as to whether they tolled the limitations period, constituted renewed or continuing age discrimination, or estopped defendant from relying on the original notice to trigger the limitations period. .