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Oker v. Ameritech Corp.12/10/1998
JUDGMENT AFFIRMED.
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:
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 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 fil
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