[Cite as Stevens v. Dept. of Mental Health, 2012-Ohio-6354.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

ROBERT STEVENS, II 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF MENTAL HEALTH 

 Defendant 

Case No. 2010-09256 

Judge Patrick M. McGrath 

DECISION

{¶ 1} This case is sua sponte assigned to Judge Patrick M. McGrath to conduct 

all proceedings necessary for decision in this matter. 

{¶ 2} On August 20, 2012, defendant filed a motion for summary judgment 

pursuant to Civ.R. 56(B). On September 4, 2012, plaintiff filed a response. The motion 

is now before the court for a non-oral hearing pursuant to L.C.C.R. 4(D). 

{¶ 3} Civ.R. 56(C) states, in part, as follows: 

{¶ 4} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that reasonable 

minds can come to but one conclusion and that conclusion is adverse to the party 
Case No. 2010-09256 - 2 - ENTRY

against whom the motion for summary judgment is made, that party being entitled to 

have the evidence or stipulation construed most strongly in the party’s favor.” See also 

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc., 50 Ohio St.2d 317 (1977). 

{¶ 5} Plaintiff was employed as a Therapeutic Program Worker for defendant at 

Northcoast Behavioral Healthcare (Northcoast). Plaintiff suffers from severe 

gastrointestinal problems and avascular necrosis, which interferes with his ability to 

stand for prolonged periods of time. On July 11, 2008, plaintiff was advised by Paul 

Guggenheim, Chief Executive Officer for Northcoast, that his employment was 

terminated.1 The letter from Guggenheim, dated July 9, 2008, states, in part: “You have 

failed to meet performance expectations in the following areas: You have been 

frequently observed sitting behind the desk on all three shifts during orientation and not 

interacting with the patients in the milieu.” (Plaintiff’s Exhibit A.) 

{¶ 6} On April 27, 2009, plaintiff filed an Equal Employment Opportunity 

Commission (EEOC) charge of discrimination with the Ohio Civil Rights Commission 

against defendant wherein he asserted that he was removed from employment on July 

11, 2008, in violation of Title I of the Americans with Disabilities Act of 1990 (ADA). 

(Plaintiff’s Exhibit F.) On November 13, 2009, the EEOC issued a dismissal and notice 

of rights to plaintiff, which states in relevant part: “Title VII, the Americans with 

Disabilities Act, and/or the Age Discrimination in Employment Act: This will be the 

only notice of dismissal and or your right to sue that we will send you. You may file a 

lawsuit against the respondent(s) under federal law based on this charge in federal or 

state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this 

notice, or your right to sue based on this charge will be lost. (The time for filing suit 

 1

In plaintiff’s second amended complaint, he states that he was notified of his termination on July 

9, 2008. In its answer, defendant admits plaintiff was notified on July 11, 2008. For purposes of this 

decision, July 11, 2008 shall be used. 
Case No. 2010-09256 - 3 - ENTRY

based on a state claim may be different.)” (Emphasis in original.) (Plaintiff’s Exhibit G.) 

On February 11, 2010, plaintiff filed a complaint against defendant under Title I of the 

ADA in federal court. (Plaintiff’s Exhibit H.) On May 21, 2010, defendant filed a motion 

to dismiss plaintiff’s complaint on the basis that it was immune from suit in federal court 

on a Title I ADA claim. On May 24, 2010, plaintiff filed an amended complaint in that 

action which asserted that he had been wrongfully excluded from programs, services or 

benefits provided by the State of Ohio when his employment was terminated, in 

violation of Title II of the ADA. On June 12, 2010, plaintiff dismissed his case in federal 

court. On July 19, 2010, plaintiff filed his complaint in this court alleging claims of 

employment discrimination in violation of the ADA. On September 9, 2010, plaintiff filed 

an amended complaint to include claims of disability discrimination under Title II of the 

ADA, Section 504 of the Rehabilitation Act of 1973, and R.C. 4112.02. On February 27, 

2012, plaintiff filed his second amended complaint, which added a claim for injunctive 

relief under the ADA, and also alleged that the doctrine of equitable tolling should apply 

to render his claims timely filed. 

{¶ 7} In its motion, defendant asserts that plaintiff’s claims are barred by the 

applicable statutes of limitations, and that the doctrine of equitable tolling does not 

apply. The court agrees. 

I. ADA CLAIMS

{¶ 8} R.C. 2743.16(A) states that: “civil actions against the state permitted by 

sections 2743.01 to 2743.20 of the Revised Code shall be commenced no later than 

two years after the date of accrual of the cause of action or within any shorter period 

that is applicable to similar suits between private parties.” (Emphasis added.) Although 

plaintiff timely filed his ADA claims in federal court on February 11, 2010, plaintiff did not 

file his complaint in this court until July 19, 2010. 
Case No. 2010-09256 - 4 - ENTRY

{¶ 9} To seek relief under the ADA, a plaintiff must file suit within 90 days of 

receipt of a right to sue letter from the EEOC. See Section 12117(a), Title 42, U.S. 

Code; Peete v. American Standard Graphic, 885 F.2d 331 (6th Cir.1989). Plaintiff 

argues that because he timely filed a complaint in federal court, the Ohio savings 

statute operates to save his claim in this court. R.C. 2305.192 may be invoked to save 

state law claims that were filed in federal court. Crawford v. Medina Gen. Hosp., 9th 

Dist. No. 2604-M (Aug. 20, 1997). However, R.C. 2305.19 “cannot save a federal claim 

that contains a specific limitations period.” McNeely v. Ross Correctional lnst., 10th 

Dist. No. 06AP-280, 2006-Ohio-5414, ¶ 9. The only claims that plaintiff filed in federal 

court were based upon violations of the ADA, which contains a specific limitations 

period. Construing the facts most strongly in plaintiff’s favor, the only reasonable 

conclusion to be drawn is that plaintiff’s claims, under both Titles I and II of the ADA 

were not timely filed in the Court of Claims. Therefore, defendant is entitled to summary 

judgment as a matter of law on those claims. 

II. OTHER STATE AND FEDERAL CLAIMS 

{¶ 10} R.C. 4112.02 provides, in pertinent part, that: “It shall be an unlawful 

discriminatory practice: (A) For any employer, because of the * * * disability * * * of any 

person, to discharge without just cause, to refuse to hire, or otherwise to discriminate 

against that person with respect to hire, tenure, terms, conditions, or privileges of 

employment, or any matter directly or indirectly related to employment.” 

 2

R.C. 2305.19(A) states, in relevant part: 

 “In any action that is commenced or attempted to be commenced, if in due time a judgment for 

the 

plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence 

a 

new action within one year after the date of the reversal of the judgment or the plaintiff's failure otherwise 

than upon the merits or within the period of the original applicable statute of limitations, whichever occurs 

later.” 
Case No. 2010-09256 - 5 - ENTRY

{¶ 11} The two-year statute of limitations found in R.C. 2743.16 applies to claims 

that seek monetary damages for discrimination against the state. McFadden v. 

Cleveland State University, 10th Dist. No. 06AP-638, 2007-Ohio-298. For 

discrimination claims under R.C. 4112, the statute of limitations begins to run when the 

plaintiff is “unequivocally informed” of the alleged adverse action underlying the 

complaint. Kozma v. AEP Energy Services, 10th Dist. No. 04AP-643, 2005-Ohio-1157, 

¶ 38. In paragraph two of his second amended complaint, plaintiff states that on July 9, 

2008, he was advised “that he was being terminated, among other reasons, for sitting, 

rather than standing, behind his desk. See, Exhibit A.” In paragraph 8 of his second 

amended complaint, plaintiff states “it is Exhibit C, dated July 23, 2008, that advised 

Plaintiff that the State violated his rights under the ADA, not the July 9, 2008 

correspondence.” Plaintiff argues that he was unequivically informed of his termination 

on the basis of his disability on July 23, 2008, when staff counsel for the office of legal 

services for defendant responded to a letter from his former attorney who had asserted 

that his termination was in violation of the ADA. 

{¶ 12} The July 23, 2008 letter states: “The department has received your request 

relating to the dismissal of your client from Northcoast Behavioral Healthcare in Toledo. 

Please see the enclosed letter provided to your client on July 9th, 2008 listing the 

reasons for his dismissal. As is noted on the letter, your client stated that he did not 

want this letter.” (Plaintiff’s Exhibit C.) However, nothing in the July 23, 2008 letter sets 

forth an additional basis for plaintiff’s removal. Indeed, the July 23 letter refers plaintiff 

to the reasons for his removal that were listed in the July 9 letter. Moreover, in his 

EEOC charge, plaintiff asserted that he was removed from employment on July 11, 

2008, in violation of Title I of the Americans with Disabilities Act of 1990 (ADA). 

(Plaintiff’s Exhibit F.) Construing the evidence most strongly in plaintiff’s favor, the only 

reasonable conclusion is that plaintiff was “unequivocally informed” of the termination of 

his employment on July 11, 2008, and that he was “excluded from the participation in, 
Case No. 2010-09256 - 6 - ENTRY

denied the benefits of, or was subjected to discrimination or activity” when he was 

informed of his termination. Therefore, none of plaintiff’s claims filed in his July 19, 

2010 complaint, as amended on September 9, 2010, and again on February 27, 2012, 

were timely filed, including plaintiff’s claims under section 504 of the Rehabilitation Act 

of 1973, 29 U.S.C. 794. 

III. EQUITABLE TOLLING

{¶ 13} The Tenth District Court of Appeals has stated that the doctrine of 

equitable tolling is to be applied sparingly and only in exceptional circumstances, and is 

generally limited to those circumstances in which an employee is intentionally misled or 

tricked into missing the filing deadline. Moore v. Dept. of Rehab. & Corr., 10th Dist. No. 

10AP-732, 2011-Ohio-1607, citing McNeely, supra, at ¶ 11. “The following five factors 

are relevant to a determination of whether tolling should be allowed: (1) lack of notice of 

the filing requirement; (2) lack of constructive knowledge of the filing requirement; (3) 

diligence in pursuing one’s rights; (4) absence of prejudice to the defendant; and (5) the 

plaintiff’s reasonableness in remaining ignorant of the particular legal requirement.” 

(Internal citations omitted.) Brown v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 

08AP-239, 2008-Ohio-6523, ¶ 14. 

{¶ 14} In response to defendant’s motion, plaintiff submitted the affidavit of his 

former attorney, Percy Squire, who avers in pertinent part: “4. In filing Mr. Stevens’ 

original case I relied upon the language in the Equal Employment Opportunity 

Commission (EEOC) Notice which states that Mr. Stevens’ ADA claim could be brought 

in either state or federal court. Mr. Stevens should not be penalized for my reliance 

upon the plain language of the EEOC notice.” 

{¶ 15} Plaintiff argues that the language contained in the EEOC notice advised 

him that his Title I ADA claim could be filed in federal court; that he relied on that advice 

to file the Title I claim in federal court; that he proceeded timely in federal court; and that 
Case No. 2010-09256 - 7 - ENTRY

based upon the state’s objection, plaintiff dismissed his federal action and refiled in 

state court. Plaintiff argues that defendant’s motion for summary judgment amounts to 

“active deception,” and that defendant was not prejudiced by his late filing in this court 

because it was aware of plaintiff’s federal action. Plaintiff asserts that material issues of 

fact exist as to whether he was diligent in pursuing his rights and as to whether the state 

was prejudiced by the multiple filings that eventually led to the filing in this court. 

{¶ 16} However, construing the evidence most strongly in plaintiff’s favor, the only 

reasonable conclusion to be drawn from the EEOC notice is that plaintiff’s ADA claim 

had to have been timely filed in either state or federal court within 90 days of plaintiff’s 

receipt of the notice. Nothing in that language supports the inference that plaintiff was 

not given notice of the filing requirement or that it would be reasonable for plaintiff to 

remain ignorant of the particular filing requirement. Indeed, plaintiff was aware on May 

21, 2010, that a jurisdictional question existed with respect to his federal action, but 

plaintiff did not file his claim in this court until July 19, 2010, nearly two months later. 

Plaintiff does not offer any explanation for his failure to file an action in this court on or 

before July 11, 2010. 

{¶ 17} For the foregoing reasons, defendant’s motion for summary judgment is 

well-taken and it shall be granted. 
Case No. 2010-09256 - 8 - ENTRY

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

ROBERT STEVENS, II 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF MENTAL HEALTH 

 Defendant 

Case No. 2010-09256 

Judge Patrick M. McGrath 

JUDGMENT ENTRY

{¶ 18} A non-oral hearing was conducted in this case upon defendant’s motion for 

summary judgment. For the reasons set forth in the decision filed concurrently 

herewith, defendant’s motion for summary judgment is GRANTED and judgment is 

rendered in favor of defendant. All previously scheduled events are VACATED. Court 

costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this 

judgment and its date of entry upon the journal. 

 _____________________________________ 

 PATRICK M. MCGRATH 

 Judge 
Case No. 2010-09256 - 9 - ENTRY

cc: 

 

Emily M. Simmons 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Lee A. Rabe 

Assistant Attorney General 

Education Section 

30 East Broad Street, 16th Floor 

Columbus, Ohio 43215-3400 

William C. Wilkinson 

341 South Third Street, Suite 101 

Columbus, Ohio 43215 

002 

Filed November 13, 2012 

To S.C. Reporter March 22, 2013