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Woody v. Sears

August 15, 2006

LARRY WOODY, PLAINTIFF,
v.
SEARS, ROEBUCK AND CO., DEFENDANT.



The opinion of the court was delivered by: Judge Thomas M. Rose

JUNE 6, 2006

ORDER CERTIFYING ITS OPINION FOR INTERLOCUTORY APPEAL

This matter is before the Court upon the Motion of Defendant Sears, Roebuck & Co., for an Interlocutory Appealable Order pursuant to 28 U.S.C. §1292(b). For the reasons below, the Court finds this Motion to be supported by law and shall be granted.

The Court further finds that the issues pertaining to the summary judgment that was granted to Plaintiff by this Court on June 6, 2006, and simultaneously denying a similar summary judgment to Defendant, involved a controlling question of law. This controlling question of law is whether an at-will employee who was discharged from employment following the exhaustion of a 12 month leave of absence policy, which leave included 9 months of workers' compensation-related absences, could bring a public policy claim pursuant to the Supreme Court of Ohio holding in Coolidge v. Riverdale Local School District, 100 Ohio St.3d 141 (2003), even thought he employee had reach maximum medical improvement and was no longer entitled to nor receiving temporary total disability under Ohio's Workers' Compensation system. See, 28 U.S.C. §1292(b), also In Re: Memphis, 293 F.3d 345 (6th Circ. 2002); Gionis v. Javitch, Block & Rathbone, 405 F. Supp.2d 853 (S.D. Ohio 2005).

This Court further finds that there is a substantial ground for a difference of opinion on this controlling question, and an immediate appeal from the Order of June 6, 2006 may materially advance the ultimate termination of this litigation. The Court further finds that the controlling question of law has not been squarely addressed by either the Supreme Court of Ohio or Federal bench.

IT IS THEREFORE ORDERED that according to the findings of this Court, the Order of June 6, 2006 is certified as appropriate for an immediate discretionary interlocutory appeal to the Sixth Circuit Court of Appeals pursuant to 28 U.S.C. §1292(b).

IT IS SO ORDERED.

JUDGE THOMAS M. ROSE

20060815

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