Case No. 0^ ® A694

IN THE SUPREME COURT OF OHIO

REGGIE ANGLEN,

Plaintiff-Appellant,

vs.

THE OHIO STATE UNIVERSITY

Defendant-Appellee.

Claimed Appeal as of Right and Discretionary AppealFrom the Court of Appeals, Tenth Appellate District, Franklin County, Ohio

Case No. 06AP-901

MEMORANDUM IN SUPPORT OF JURISDICTION

PHILLIPL. HARMON, Esq. (#0033371), Counsel of Record6649 N. High Street, Suite 105Worthington, Ohio 43085(614) 433-9502 (Office)(614) 433-9503 (Fax)E-mail: philharmon@msn.comCounsel For Plaintiff-Appellant Reggie Anglen

MARCDANN, Esq., Ohio Attorney General (#0039425)SUSANM. SULLIVAN, Esq., Asst. Attorney General, Esq. (#0012081), Counsel of RecordCourt of Claims Defense SectionOffice of the Ohio Attorney General150 East Gay Street, 23`d FloorColumbus, OH 43215-3130(614) 466-7447 (Office)(614) 644-9185 (Fax)E-mail: Ssullivan@ag.state.oh.usCounsel For Defendant-Appellee The Ohio State University

TABLE OF CONTENTS

1. EXPLANATION WHY ISSUES RAISED IN THIS CASE PRESENTSUBSTANTIAL CONSTITUTIONAL QUESTIONS AND ARE OFPUBLIC OR GREAT GENERAL INTEREST ..................................................1

II. STATEMENT OF THE CASE AND FACTS .....................................................3

III. ARGUMENT ..........................................................................................................4

Proposition Of Law No. I ......................................................................................4The Court of Appeals erred as a matter of law by applying the two-yearstatute of limitations holding from McFadden v. Cleveland StateUniversity, which was issued in violation of controlling case authority.(R 33; Apdx. l, 2, p. 13-20).

Proposition Of Law No. II .....................................................................................4The Ohio Court of Appeals erred as a matter of law by failing to apply thesix year statute of limitations in Senegal v. Ohio Department ofRehabilitation and Correction. (R 33; Apdx. 1, 2, p. 13-20).

Proposition Of Law No. III ...................................................................................7The Ohio Court of Appeals erred as a matter of law by finding that OhioRev. Code §2743.16(A), as applied to the facts of this case, isconstitutional. (R 33; Apdx. 1, 2, p. 13-20).

IV. CONCLUSION ..... ...............................................................................................11

V. PROOF OF SERVICE ........................................................................................12

VI. APPENDIX

Apdx. Court of AppealsEx. Record Number Date Description

01

Paee

02 Opinion in Favor of Appellee13

TABLE OF AUTHORITIES

STATE AND FEDERAL CASE AUTHORITY

Boddie v. Connecticut, 401 U.S. 371 (1971) .......................................................................9

Conley v. Shearer (1992), 64 Ohio St.3d 284 ..................................................................8, 9

In re JJ., 111 Ohio St.3d 205, 2006-Ohio-5484 ............................................................. 2, 5

Manning v. Ohio State Library Bd., 62 Ohio St.3d 24 (1991) ...........................................10

Massachusetts Ed. ofRetirement v. Murgia (1976), 427 U.S. 307 ......................................9

McCoy v. Toledo Correctional Institution, (Apri125, 2005),Franklin App. No. 04AP-1098 ..................................................................................... 1-6, 8

McFadden v. Cleveland State University, Franklin App. No. 06AP-638,2007-Ohio-298 .............................................................................................................2, 3, 5

Senegal v. Ohio Department of Rehabilitation and Correction, (March 10, 1994),

Franklin App. No. 98API08-1161 (unreported) . ...................................................... 1-2,4-6

Sexton v. Barry (6th Cir. 1956), 233 F.2d 220 ......................................................................8

State ex rel. Brown v. Summit Cty. Bd. of Elections, 46 Ohio St.3d 166 (1989) ..:............9

CONSTITUTIONAL PROVISIONS

Ohio Const., Art. l, Sect. 16 .................................................................................................9

STATUTESOhio Rev. Code § 2305.07 ...................................................................................................1

Ohio Rev. Code § 2743.02 ...................................................................................................7

Ohio Rev. Code § 2743.16 ..................................................................................:.....1-2, 4-5

Ohio Rev. Code § 4112.02 ...................................................................................................1

Ohio Rev. Code § 4112.14 ...................................................................................................1

RULESRule 4(C) of the Supreme Court Rules For Reporting Of Opinions ....................................6

- iii -

I.

EXPLANATION OF WHY THE ISSUES RAISED IN THIS CASEPRESENT SUBSTANTIAL CONSTITUTIONAL QUESTIONS AND ARE

OF PUBLIC OR GREAT GENERAL INTEREST

The issue in this case is whether a handicap discrimination / wrongful discharge claim

against a state university, filed in the Ohio Court of Claims, is subject to a two-year statute of

limitations under Ohio Rev. Code §2743.16, or to longer limitations under R.C. §4112.14(A),

§4112.02(A), or §2305.07.

The Tenth District Court of Appeals, Franklin County, applied the two-year statute

affirmed the dismissal of Plaintiff-Appellant Anglen's case by the Ohio Court of Claims, and

thereby violated Mr. Anglen's constitutional access to the courts, his equal protection rights, and

his due process rights. Copies of the Opinion and Judgment Entry below are attached herewith.

(R. 33, Judgment Entry, Opinion, Appdx. 1, 2, p. 13-21). 1

The Court below relied upon one case which it had decided in 2005, McCoy v. Toledo

Correctional Institution, (Apri125, 2005), Franklin App. No. 04AP-1098 (unreported), while

disavowing the opposing precedent a different panel of the same court had established in 1994 in

a different case, Senegal v. Ohio Department of Rehabilitation and Correction, (March 10,

1994), Franklin App. No. 98API08-1161 (unreported).

iR. 33,; Appellant Anglen hereby adopts the record references to the docket maintainedby the Court of Appeals in Case No. 06AP-901, below, to wit: "(R. _, documentname)".

1

The Court in this case below acknowledged that its Decision in Senegal had never been

overruled at any time relevant herein except to point out that in 2007, it did expressly overrule

Senegal in the case of McFadden v. Cleveland State University, Franklin App. No. 06AP-638,

2007-Ohio-298.

Appellant Anglen contends that while the Court of Appeals may have attempted to

overrule Senegal in 2007, it did so in a manner which directly violated the legal requirements

established by this Court for all Ohio courts of appeals to follow in resolving an intra-district

conflict in the case of In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484.

Specifically, the McFadden court refused to convene an en bane review to resolve the

intra-district conflict between Senegal and McCoy, as mandated by In re J.J.

So, in a nutshell, the six-year statute of limitations in Senegal was published and

unreversed case law at the flme Mr. Anglen filed his Complaint in this case. Since the two-year

statute of limitations in McFadden which overruled Senegal was decided in clear violation of

law, and decided after the Complaint was filed in this case, the Court's ruling in this case below,

founded upon McFadden, must also be error.

The plaintiff in the McFadden case has or will file his appeal to the Ohio Supreme Court

on or before Apri120; 2007. This Court is urged to consider that appeal at the same time it

considers the instant action.

It is critical not only to the parties in this case, but to the parties in McFadden and to all

other similarly situated parties tliroughout the State of Ohio that this Court hear this case and

clarify the constitutional and statutory limits of R.C. §2743.16.

2

II.

STATEMENT OF THE CASE AND FACTS

Plaintiff-Appellant Reggie Anglen, who is a blind African-American, was discharged

from his job at The Ohio State University in August 2002. He filed a lawsuit against the

university with the Ohio Court of Claims in April 2006, alleging handicap discrimination, age

discrimination, racial discrimination, wrongful discharge, and breach of employment contract.

The Court of Claims dismissed all of his claims on August 10, 2006 finding them time-

barred pursuant to the two-year statute of limitations under McCoy, Supra.

Mr. Anglen filed an appeal with the Tenth District Court of Appeals which ultimately

dismissed his appeal, based not only on McCoy but also on McFadden, Supra,

3

IIL

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition Of Law Number One: "I'he Court of Appeals erred as a matter oflaw by applying the two-year statute of limitations holding from McFadden v.Cleveland State University, which was issued in violation of controlling caseauthority. (R 33; Apdx. p. 13-21).

Proposition Of Law Number Two: The Ohio Court of Appeals erred asa matter of law by failing to apply the published and unreversed six yearstatute of limitations in Senegal v. Ohio Department of Rehabilitation andCorrection. (R 33; Apdx. p. 13-21).

Propositions of Law Number One and Two both require a statutory interpretation

of R.C. §2743.16 and so both are therefore argued together.

In Senegal, the Tenth District Court of Appeals clearly held that in cases alleging age and

racial discrimination, "the two year statute of limitations set forth in R.C. 2743.16 is not

applicable and the appropriate statute of limitations is the six-year statute, as set forth in R.C.

2305.07". (emphasis added).

In McCoy, however, the Tenth District Court of Appeals held that the two-year statute of

limitations under R.C. §2743.16(A) does apply to cases involving racial and sexual

discrimination claims. McCoy was decided on April 21, 2005.

The court in McCoy did not overrule Senegal. In fact, the court in that case stated that,

"... we can only conclude that, although Senegal indeed stands for the principle for which

appellant cites it, ...". That is not the kind of language a court uses to overrule a past decision.

It is axiomatic that whatever other qualifying language the McCoy court directed toward

Senegal, it did not reverse Senegal.

4

Once McCoy was decided, the intra-district holdings in Senegal and McCoy (or any other

case consistent with the McCoy two-year limitations ruling) fell into hopeless, irreconcilable

conflict in terms of defining the applicable statute of limitations which applies in the Tenth

District to the facts of this case.

The Tenth District Court of Appeals did expressly overrule Senegal in McFadden,

decided January 25, 2007.

In choosing to reverse Senegal by way of a ruling from a three judge panel, however, the

Tenth District Court expressly ignored this Court's Order that, "[a]ppellate courts are duty-bound

to resolve conflicts within their respective appellate districts through en bane proceedings". In re

J.J., 111 Ohio St. 3d 205, 2006-Ohio-5484 (Syllabus 2), p. 205.

The Tenth District Court then relied on its improper holding in McFadden to justify its

Opinion and Judgment Entry in this case, stating at p. 7 of its Opinion, as follows:

"Subsequent to plaintiffs brief and oral argument in this matter, this court held inMcFadden v. Cleveland State Univ., Franklin App. No. 06AP-638, 2007-Ohio-298, thatthe statute of limitations found in R.C. 2743.16(A) applies to claims of racediscrimination filed in the Court of Claims. In so concluding, this court stated that"McCoy more accurately reflects the law applicable to appellant's claim. Therefore, wereiterate the holding from McCoy that the two-year statute of limitations in R.C. 2743.16applies to claims such as appellant's that seek monetary damages for discriminationagainst the state." Id. at ¶10. To eliminate further question on the viability of Senegal,McFaddon states that "[t]o the extent that we did not explicitly overrule Senegal in ourdecision in McCoy, we do so now." Id. "

On April 23, 2002, the date of Mr. Anglen's discharge, Senegal had been at a minimum,

persuasive authority for over eight years on the limitations issue before this court. Under

Senegal; Mr. Anglen had six years from his date of discharge to file his handicap discrimination

complaint. Mr. Anglen's Complaint, filed on Apri121, 2006, was thus timely.

5

McCoy was not decided until Apri121, 2005. But by that date, the two-year limitation

period therein had already expired in Appellant's case a year earlier, i.e. on April 23, 2004.

McCoy, as applied, retroactively shortened Appellant's statute of limitations from six years to

two years, but did so only after the two year period had already run on Appellant's claims herein.

Finally, Rule 4(C) of the Supreme Court Rules For Reporting Of Opinions, reads in

relevant part, as follows:

"... court of appeals opinions may always be cited and relied upon for any of thefollowing purposes:

***

(2) Demonstrating to an appellate court that the decision, or a later decisionaddressing the same point of law, is of recurring importance or for other reasonswarrants further judicial review".

(4) Any other proper purpose between the parties, or those otherwise directlyaffected by a decision. (emphasis added).

Rule 4(C)(2) explicitly authorizes Mr. Anglen to cite and rely upon Senegal as

controlling authority, albeit in conflict with McCoy. Defendant-Appellee The Ohio State

University (cited hereinafter as "OSU") was therefore not entitled to judgment as a matter of law

at the Court of Claims level, nor on appeal. The Entry of Dismissal should thus be reversed and

the case remanded.

6

Proposition Of Law Number Three: The Ohio Court of Appeals erred as a matter oflaw by finding that Ohio Rev. Code §2743.16(A), as applied to the facts of this case, isconstitutional. (R 33; Apdx. p. 13-21).

The Court of Appeals applied a "rational nexus" test below and determined that the two-

year statute of limitations does not violate his equal protection rights, vis a vis, private sector

victims of handicap discrimination because the state has a rational basis in conserving its fiscal

resources.

There was no evidence presented in this case, however, which showed the State had any

legitimate state interest, financial or otherwise, in limiting the period of time in which an

aggrieved person must challenge a state agent who has engaged in handicap or racial

discrimination.

The Ohio Supreme Court should articulate a demonstrably fair and equitable legal

standard that state employees will be held henceforward to the same standards of compliance

under the state and federal anti-discrimination laws that apply to private sector actors, no more,

certainly no less.

In fact, there is a more-than-legitimate state interest in holding public employers who

discriminate against the weakest in our society to an even stricter standard of enforcement than

that levied against private employers, given the immense power the public officials have over the

employees who serve them.

It is an affront to common sense and legal decency to hold public sector employers to a

lesser standard of compliance with the law under the guise of protecting the public purse. We as

citizens don't need that kind of fiscal protection, thank you. Instead, we should insist, nay,

demand our govermnent follow the highest legal standards in protecting the rights of its people.

7

The duties of government do not distill into dollars and cents. They resolve, instead, into

right and wrong.

The Senegal court got it right when they held governrnent to the same standards which

apply to all employers. This court is requested to find likewise.

As early as 1961, the State of Ohio had affirmatively consented by statute to be bound

(and to be sued) by the anti-discrimination laws of the State of Ohio in the same manner as

private sector employers throughout the State. Per R.C. §2743.02(A)(1), therefore, R.C.

§2743.16(A) has no applicability to the instant action.

In addition, "[t]he equal protection of law implies that all litigants similarly situated may

appeal to courts for both relief and defense under like conditions, with like protection, and

without discrimination.' Sexton v. Barry (C.A.6, 1956), 233 F.2d 220, 224. 'Equal protection of

the law means the protection of equal laws". Conley v. Shearer (1992), 64 Ohio St.3d 284, 288.

(emphasis added).

R.C. §2743.16(A), as applied by the Ohio Court of Claims below, create two classes of

protected citizens, i.e. private sector employees and public sector employees. If Plaintiff were a

private sector employee and brought this identical case in the court of common pleas, his tort

claim for wrongful discharge would be subject to a 4-year statute of limitations and all of his

other claims would be subject to 6-year statutes of limitations.

As a public-sector employee, though, R.C. §2743.16(A) would subject all his claims to a

two-year statute of limitations.

If this Court follows McCoy rather than Senegal, it declares that public sector employees

may not appeal to courts for both relief and defense under like conditions, with like protection,

and without discrimination as compared to private sector employees. Id, at 288.

8

Inasmuch as R.C. §2743.16(A) purports to limit all claims of Plaintiff to a two-year

statute of limitations period, while all other employees throughout the State are granted as many

as four or six years to file their identical claims against their private-sector employers, Plaintiff

would be denied afundamental right of access to the court compared to private-sector

employees. Plaintiff would be denied the guarantees of like conditions, like protection, and

without discrimination given to private sector employees.

The right of access to the court is considered a fundamental right in questions involving

the constitutionality of a statute. Boddie v. Connecticut (1971), 401 U.S. 371; Ohio Const.,

Art. I, Sect. 16; Conley v. Shearer (1992), Id. at 290.

"Where a fundamental interest or suspect class is at issue, a stricter test is used,

Massachusetts Ed. ofRetirement v. Murgia (1976), 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520,

and the government will have to demonstrate that a classification created by law is necessary to

promote a compelling governmental interest. State ex rel. Brown v. Summit Cty. Bd. of Elections

(1989), 46 Ohio St.3d 166, 168, 545 N.E.2d 1256, 1259". Id, at 289. (emphasis added).

Defendant OSU cannot demonstrate any compelling governmental interest why its

employees should be afforded lesser legal protection from discrimination, compared and

contrasted to the rights and duties of all other similarly-situated employees throughout the State

of Ohio.

9

In a very well-reasoned dissenting opinion in the case of Manning v. Ohio State Library

Bd. (1991), 62 Ohio St.3d, 24, 33-34, Justice Douglas made the following argument which, while

made in support of a different point of constitutional law, is just as persuasive today in support of

Appellant's equal protection claims in this matter:

"Accordingly by requiring a claimant against the state to file her Title VII claim in theCourt of Claims, it is clear that such claimant has fewer rights than are accorded byCongress to any other Title VII claimant. In fact, the only Title VII claimants sorestricted are those who are proceeding against the state. All other such claimants arenow permitted to file in Ohio courts of general jurisdiction.

Appellant could have filed against the state in federal court. Had she done so, she wouldnot have been encumbered with any of the restrictions the majority now places upon her.Today, we acknowledge that federal law now requires that states have concurrent subjectmatter jurisdiction with federal courts over Title VII actions. States may not respond tomandated concurrent jurisdiction by evading federal law and discriminating againstfederal causes of action".

10

CONCLUSION:

It is respectfully submitted that R.C. §2743.16(A), as construed below and as applied to

the facts of this particular case, wrongfully discriminates against Mr. Anglen's fandamental

rights of access to the court in violation of his equal protection and due rights under the Ohio and

United States Constitutions.

This case also involves a question of public or great general interest concerning the

statutory interpretation of Ohio Rev. Code §2743.16 in light of the refusal by the Tenth District

Court of Appeals to follow the case law established by this Court.

The Supreme Court of Ohio is respectfully requested to exercise its jurisdiction to hear

this important case.

Respectfully submitted,

ip L°: Harmon, Esq. (#0033371)49 N. High Street, Suite 105

Worthington, Ohio 43085(614) 433-9502 (Office)(614) 433-9503 (Fax)E-mail: philharmon@msn.com

Counsel Of Record ForPlaintiff-Appellant Reggie Anglen

11

PROOF OF SERVICE

A copy of the foregoing Memorandum was sent by regular U.S. mail, postage prepaid,this 20th day of April, 2007 to the following:

Susan Sullivan, Esq.Court of Claims Defense SectionOhio Attorney General's Office150 E. Gay Street, 23rd FloorColumbus, Ohio 43215

Counsel for Defendant-Appellee,The Ohio State University

p L. 14armon (#0033371)bunsel Of Record For

Plaintiff-Appellant Reggie Anglen

12

IN THE COURT OF APPEALS OF 64I0';

Reggie Anglen,

Plaintiff-Appellant,

V.

The Ohio State University,

Defendant-Appeflee.

No. 06AP-901(C.C. No. 2006-03231)

(ACCELERATED CALENDAR)

JUDGMENT FNTRY

For the reasons stated in the opinion of this court rendered herein on

March 6, 2007, and having overruled both of plaintiffs assignments of error, it is the

judgment and order of this court that the judgment of the Court of Claims of Ohio is

affirmed. Costs to plaintiff.

BRYANT, J., SADLER, P.J., & PETREE, J.

\

ByJudg^̂g^ ry^^

M^MbN- A 41 . O

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

7111J7 C' ?^^ u•:Mxt^ _ ;^C(^R^ C 6 MM12:

CCURrSReggie Anglen,

Plaintiff-Appellant,

V.

The Ohio State University,

Defendant-Appellee.

O P I N I O N

No. 06AP-901(C.C. No. 2006-03231)

(ACCELERATED CALENDAR)

Rendered on March 6, 2007

Phillip L. Harmon, for appellant.

Marc Dann, Attorney General, and Susan M. Sullivan, forappellee.

APPEAL from the Ohio Court of Claims.

BRYANT, J.

{i1} Plaintiff-appellant, Reggie Anglen, appeals from a judgment of the Ohio

Court of Claims granting the motion to dismiss of defendant-appellee, The Ohio State

University ("OSU"), premised on plaintiffs failure to commence his action within the

applicable statute of limitations. Because the trial court properly determined R.C. 2743.16

bars plaintiffs claims, we affirm.

{12} On April 21, 2006, plaintiff filed a complaint in the Court of Claims. In it he

alleged that he, an African-American, had been an employee of OSU, and although he

- 14 -

No. 06AP-901 2

was handicapped by blindness, he was able to perform the duties of his position as a

media relations coordinator until he was discharged from employment on April 23, 2002.

He asserted that at the time of his discharge he was over 40, and that a person under the

age of 40 filled the position he once held. According to the complaint, plaintiff filed a

charge with the United States Equal Employment Opportunity Commission ("EEOC") on

August 6, 2002, alleging handicap and age discrimination; the EEOC closed its file on the

charge on January 14, 2003.

{13} In the meantime, pursuant to OSU's letter advising that plaintiff could

reapply for employment at any time in the future, plaintiff reapplied on six separate

.occasions during 2002 and 2003. According to the complaint, in each instance OSU,

"whether motivated by retaliatory animus for his filing of the EEOC Charge or by simple

discriminatory animus, refused to consider his application and did not even allow him to

interview for any of the positions he sought." (Complaint, ¶12.)

{14} Set out in five counts, the complaint alleges handicap discrimination, age

discrimination, racial discrimination, wrongful discharge in violation of public policy, and

breach of contract. In response to plaintiffs complaint, OSU filed a motion to dismiss.

Citing this court's opinion in McCoy v. Toledo Corr. Inst., Franklin App. No. 04AP-1098,

2005-Ohio-1848, OSU asserted that because plaintiff did not file his action within two

years of any of the relevant dates in the complaint, the statute of limitations set forth in

R.C. 2743.16 bars his action. Relying heavily on this court's opinion in Senegal v. Ohio

Dept of Rehab. & Con: (Mar. 10, 1994), Franklin App. No. 93AP108-1161, plaintiff

contended the six-year statute of limitations set forth in R.C. 2305.07 applies to actions

for age discrimination.

- 15 -

No. 06AP-901 3

{9[5} Following OSU's reply memorandum, the Court of Claims issued an entry of

dismissal on August 10, 2006, finding the statute of limitations set forth in R.C. 2743.16

barred each of the causes of action set forth in plaintiffs complaint. Plaintiff appeals,

assigning two errors:

1. The Ohio Court of Claims erred as a matter of law by failingto apply the six year statute of limitations in Senegal v. OhioDepartment of Rehabilitation and Correction, (March 10,1994), Franklin App. No. 98AP108-1161 (unreported).

2. The Ohio Court of Claims erred as a matter of law byignoring Plaintiff Appellant's argument that Ohio Rev. Code§2743.16(A), as applied, is unconstitutional.

1. Second Assignment of Error

{16} We first address plaintiffs second assignment of error. In it, he contends he

will be deprived of equal protection of the law if the state is permitted to invoke the two-

year statute of limitations in R.C. 2743.16(A). Asserting that the disparity between the

statute of limitations applicable to lawsuits generally and that applied to actions against

the state should be subject to a strict-scrutiny standard of review, plaintiff contends the

statute of limitations in R.C. 2743.16 must be declared unconstitutional as applied to him.

{17} Under R.C. 2743.02(A)(1), the state "waives Its immunity from liability ***

and consents to be sued, and have its liability determined, in the court of claims created

in this chapter in accordance with the same rules of law applicable to suits between

private parties, except that the determination of liability is subject to the limitations set

forth in this chapter ***" R.C. 2743.16, as relevant here, provides that all actions against

the state must be commenced no later than two years after the date of the accrual of the

cause of action.

- 16 -

No. 06AP-901 4

1181 The analysis of plaintift's equal protection contentions depends on the

nature of the interest involved. "Under the equal protection clause, in the absence of state

action impinging on a fundamental interest or involving a suspect class, a rational basis

analysis is normally used. Where the traditional rational basis test is used great deference

is paid to the state, the only requirement being to show that the differential treatment is

rationally related to some legitimate state interest." Conley v. Shearer (1992), 64 Ohio

St.3d 284, 289, quoting State ex reL Heller v. Miller (1980), 61 Ohio St.2d 6, 11.

{y[9} Plaintiff claims a disparity exists between the statute of limitations goveming

a public employee's action against the state as employer and that applicable to non-public

employees' actions against their non-state employers. The asserted classes, public

employees and non-public employees, set forth no suspect classification and involve no

fundamental right. Accordingly, we apply the rational basis test to plaintiffs contentions.

[1110} Wi'thout question, plaintiffs action against the state must be commenced

more quickly than a similar action against a non-state entity. Because, however, the state

voluntarily consented to be sued, it may limit its waiver of sovereign immunity and "qualify

and draw perimeters around the granted right [to sue] without violating equal protection."

Conley, supra, at 291, citing Grange Mut. Cas. Co. v. Columbus (1989), 49 Ohio App.3d

50, 52. Within these parameters, "[s]o long as the laws are applicable to all persons

under like circumstances and do not subject individuals to an arbitrary exercise of power

and operate alike upon all persons similarly situated, it suffices the constitutional

prohibition against the denial of equal protection of the laws." Conley, at 288-289. Here,

all state employees who seek to sue the state are treated similarly. Although the

challenged statute applies a different time period for state, as compared to private,

No. 06AP-901 5

employees who seek to sue their employers, the statute passes constitutional review

under the rational basis test because a limit on the state's liability has its rational basis in

the conservation of fiscal resources. Menefee v. Queen City Metro (1990), 49 Ohio St.3d

27, 29.

{9[11} Indeed, "[t]his court has held on several previous occasions that the

statute of limitations included in R.C. 2743.16 does not violate the equal protection or

due process clauses of the Ohio Constitution or the United States Constitution."

Thompson v. Ohio Dept. of Transp. (Nov. 26, 1996), Franklin App. No. 96AP104-497,

quoting Stanton v. Ohio State Univ. Hosp. (Mar. 13, 1979), Franklin App. No. 78AP-61 1.

Plaintiff, however, contends Stanton, on which Thompson relied, is factually

distinguishable from the present case.

{112} In Stanton, the court initially addressed former R.C. 2743.16(D), a

provision that was directed to plaintiffs who failed to timely file a written notice of

intention to sue. Under R.C. 2743.16(D), the court had the discretion to allow the

plaintiff to file a claim within two years of the accrual of the action if the state had

knowledge of the essential facts constituting the civil action prior to the expiration of the

180-day notice period. This court determined the plaintiff in that action should be

allowed the opportunity for an evidentiary hearing to demonstrate good cause for filing

beyond 180 days.

{113) In addition, however, the court addressed Stanton's contention that R.C.

2743.16(A) violated the equal protection clauses of the Ohio and United States

Constitutions. In resolving the issue, Stanton specifically held that R.C. 2743.16(A) does

not violate the equal protection or due process clauses of the Ohio or United States

-i8-

No. 06AP-901 6

Constitutions. Accordingly, plaintiffs attempts to distinguish Stanton and Thompson are

unavailing. .

{114} Similarly unavailing are plaintiffs contentions that R.C. 2743.16(A) violates

equal protection by limiting his access to the courts in violation of Section 16, Article I of

the Ohio Constitution, which provides: "All courts shall be open, and every person, for an

injury done him * * * shall have remedy by due course of law, and shall have justice

administered without denial or delay. Suits may be brought against the state, in such

courts and in such manner, as may be provided by law." Because plaintiffs right to sue

the state is created by the legislature, plaintiffs constitutional right to access to the courts

is limited by the conditions set forth vrithin the statute, including the applicable statute of

limitations. As a result, plaintiffs untimely filing under R.C. 2743.16(A) does not prevent

him access to the courts, but extinguishes his right to sue the state under R.C.

2743.02(A)(1). Accordingly; plaintiffs second assignment of error is overruled.

It. First Assignment of Error

{115} Plaintiffs first assignment of error asserts the trial court erred as a matter of

law in failing to apply a six-year statute of limitations pursuant to Senegal, supra. Although

Senegal applied a six-year statute of limitations to an age discrimination claim in the

Court of Claims, subsequent decisions from this court implicitly rejected Senegal and

applied the two-year statute of limitations contained in R.C. 2743.16(A). See, e.g., Ripley

v. Ohio Bur. of Empl. Serv., Franklin App. No. 04AP-313, 2004-Ohio-5577, at ¶20

(applying R.C. 2743.16 to a hostile environment sexual harassment action under R.C.

4112.02).

No. 06AP-901 7

{116} Noting that we tacitly rejected Senegal in cases decided after it, this court in

McCoy, supra, observed that Senegal as precedent "is an aberration and does not

represent existing law on this court's application of the Court of Claims Act's statute of

limitations." McCoy, at ¶10. Accordingly, we applied the two-year statute of limitations set

forth in R.C. 2743.16(A) to McCoy's complaint for discriminatory termination under R.C.

4112.02(A). We, however, did not explicitly overrule Senegal.

{1171 Because we did not overrule Senegal, plaintiff contends it remains viable

law properly applied to his complaint. Subsequent to plaintiffs brief and oral argument in

this matter, this court held in McFadden v. Cleveland State Univ., Franklin App. No.

06AP-638, 2007-Ohio-298, that the statute of limitations found in R.C. 2743.16(A) applies

to claims of race discrimination filed in the Court of Claims. In so concluding, this court

stated that "McCoy more accurately reflects the law applicable to appellant's claim.

Therefore, we reiterate the holding from McCoy that the two-year statute of limitations in

R.C. 2743.16 applies to claims such as appellant's that seek monetary damages for

discrimination against the state." Id. at ¶10. To eliminate further question on the viability of

Senegal, McFaddon states that "[t]o the extent that we did not explicitly overrule Senegal

in our decision in McCoy, we do so now." Id.

{R18} As a re'sult, Senegal no longer remains precedent for applying anything but

a two-year statute of limitations to discrimination claims filed against the state in the Court

of Claims. Moreover, to the extent plaintiff requested that we certify a conflict between

Senegal and McCoy, (1) that conflict no longer exists, and (2) the procedure for certified

conflicts does not apply to conflicts existing within an appellate district. In re J.J., 111 Ohio

No. 06AP-901 8

St.3d 205, 2006-Ohio-5484, paragraph three of the syllabus. Accordingly, plaintifPs first

assignment of error is overruled.

{1[19} Having overruled both of plaintifPs assignments of error, we affirm the

judgment of the Ohio Court of Claims.

Judgment affirmed.

SADLER, P.J., and PETREE, JJ., concur.