The opinion of the court was delivered by: Judge Michael R. Barrett
This matter is before the Court on Count I of Plaintiff's complaint alleging Workers' Compensation retaliation in violation of O.R.C. §4123.90 (Doc. 1). See Meyer v. UPS, 170 Ohio App.3d 339, 2007 Ohio 7063 (Statutory retaliation claim under O.R.C. §4123.90 affords equitable relief without the right to a jury trial). O.R.C. §4123.90 provides the following:
No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings 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 in which the relief which may be granted shall be limited to reinstatement with back pay, if the action is based upon discharge, or an award for wages lost if based upon demotion, reassignment, or punitive action taken, offset by earnings subsequent to discharge, demotion, reassignment, or punitive action taken, and payments received pursuant to section 4123.56 and Chapter 4141. of the Revised Code plus reasonable attorney fees. The action shall be forever barred unless filed within one hundred eighty days immediately following the discharge, demotion, reassignment, or punitive action taken, and no action may be instituted or maintained unless the employer has received written notice of a claimed violation of this paragraph within the ninety days immediately following the discharge, demotion, reassignment, or punitive action taken.
O.R.C. §4123.90. This notice is a jurisdictional requirement which can not be waived. Burress v. Sears, 1995 U.S. Dist. LEXIS 22408 (S.D. Ohio July 18, 1995, J. Rubin) citing Cross v. Gerstenslager Co., 63 Ohio App. 3d 827 (Ohio Ct. App. 1989).
Defendant argues that this claim must be dismissed as it did not receive notice of the claimed violation within the ninety days immediately following Plaintiff's discharge. Plaintiff counters that she did, in fact, provide the required notice. A hearing was held on November 13, 2008 (the "hearing") for the parties to present evidence to the Court regarding the notice issue.
Plaintiff presented additional exhibits at the hearing, Exhibits 8, 9, 68, 69 and 70. Exhibit 8 is a typed letter addressed to Steve Ells from Plaintiff's counsel, Marcie Warrington dated September 8, 2006 notifying Mr. Ells of Ms. Ellert's claim of retaliation in violation of O.R.C. §4123.90. This letter is not on firm letterhead nor is it signed by Ms. Warrington. Exhibit 9 is a similar typed letter addressed to Steve Ells from Marcie Warrington dated November 15, 2006 following up on the September 8, 2006 letter. This letter is also not on firm letterhead nor is it signed by Ms. Warrington. Exhibits 68 and 69 are copies of letters printed on Freking & Betz letterhead and signed by Randolph Freking to Ann Dowell, Executive Director of Human Resources and Administration of Chipotle, regarding another former employee of Chipotle. Exhibit 69 is a follow up to Exhibit 68. Exhibits 68 and 69 were presented to show that Chipotle has a history of failing to respond to letters from Freking & Betz. Exhibit 70 is the detailed fee transaction file for work performed by Freking & Betz on Ms. Ellert's behalf. The entry of September 7, 2006 states that Ms. Warrington billed two hours to "draft letter." Also, on September 8, 2006 it states that Ms. Warrington billed for a "telephone conference with Amy; finalize, send investigation letter." Finally, on November 15, 2006 it states that Ms. Warrington billed to "draft and send second letter to Chipotle."
Ms. Warrington testified that she drafted, signed, and mailed Exhibits 8 and 9. She further testified that it was her practice to collect the information from the client, draft the letter, email the draft letter to the client, give the letter to her secretary to print it on letterhead, sign the letter and put it in a box for mailing. However, on cross-examination, Ms. Warrington admitted that she had no knowledge of the letter actually being sent, only of her practice. She also testified that she did not know if Ms. Ellert had been asked to produce her copy of the letter since the letter indicates that she was to be sent a carbon copy. Jackie Weaver, an employee of Freking & Betz who is in charge of the file room and mail room, testified that it is her practice to take a letter out of the tray next to the copier, copy the letter, place it in an envelope, add postage and mail the letter. She then puts the copies in the file. However, the file did not contain a signed, letterhead copy of Exhibit 8 or 9. Ms. Weaver also testified that if a letter is already folded in an envelope that she does not make a copy as she assumes that it has already been done. On cross-examination, Ms. Weaver admitted that she has no direct knowledge that Exhibits 8 and 9 were ever sent.
Defendant presented Mathew Ells, CEO and Chairman of the Board of Chipotle, via telephone to testify in this matter. Mr. Ells testified that he had never seen Exhibits 8 and 9 and that he keeps correspondence of this type in his files. He also testified as to Chipotle's procedures and that if he had received the letters he would have contacted General Counsel and CFO as well as Bob Wilner, the Chief Administrative Officer. However, on cross examination, Mr. Ells admitted that his assistant does not give him all his mail and that she reroutes mail as necessary. Defendant then called Shari Buck, Mr. Ells assistant to testify, via telephone. Ms. Buck testified that if Exhibits 8 and 9 were received that she would have given them to Mr. Ells and that it is her practice to pick up the mail, review, sort, copy and file it. She also testified that she looked for copies of Exhibits 8 and 9 in Mr. Ells' files and was unable to located any. However, on cross examination, Ms. Buck testified that, occasionally, other people open Mr. Ells' mail and that she does not remember every letter Mr. Ells receives.
1. It is clear from the evidence presented that the notification letter was drafted by Ms. Warrington and placed in the out box; however, it can not be determined from the evidence presented that the letter was actually mailed. Although both Ms. Warrington and Ms. Weaver testified as to their respective practices regarding mailing letters, because there is not a signed copy of the letters on firm letterhead in evidence, the Court cannot find that these practices were followed in this instance.
2. The Court cannot find that Mr. Ells received the September 8, 2006 notification letter or the November 15, 2006 follow up letter. Plaintiff has failed to meet her burden as the evidence presented does not tip the scale in her favor. As such, the Court cannot find that Chipotle received written notice of Plaintiff's claim within ninety days following her discharge.
Since Defendant did not receive the September 8, 2006 letter from Ms. Warrington regarding Plaintiff's claim, Count I of the Complaint must be dismissed.*fn1 Even if the Court had found that Plaintiff did, in fact, mail the required notice, the claim must still be dismissed. The statute is clear. It provides that "no action may be instituted or maintained unless the employer has received written notice of a claimed violation of this paragraph within the ninety days immediately following the discharge...". O.R.C. §4123.90 (emphasis added). As an Ohio Court of Appeals properly set forth, "Words in a statute must be read in context and construed according to the rules of grammar and common usage. O.R.C. 1.42. The language of O.R.C. 4123.90 is plain and unambiguous. The employer must receive written notice within ninety days after the employee's discharge. 'Receive,' as defined in Webster's Ninth Collegiate Dictionary (1990), means 'to come into possession of: ACQUIRE' and cannot be synonymous with the verb 'mail' which means 'to send by mail.'" Barringer v. The Kroger Company, 1996 Ohio App. LEXIS 597, *5 (Ohio Ct. App., Wood County Feb. 23, 1996)(emphasis in original). There was no evidence presented by Plaintiff to show receipt of the letter by Mr. Ells or ...