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IN "1'IlE SUPREME COURT OF OI3 I0
DAN W. VOSSMAN. Case No. 13-1949
Appellant, : On Appeal from the FranklinCounty Court of Appeals
V. : Tenth Appellate District
AIRitiIETSYSTEMS, INC., et al.,
Appellees.
Court of AppealsCase No, 12AP-971
APPELLEES' MEMORANDUM OPPOSING 3-JRISDICTI{4N
Russell A. Kelm (0011034)Joanne W. Detrick (0041512)Law Offices of Russell A. KelrnSuite 86037 W. 13road StreetColumbus, Ohio 43215Telephone: (614) 246-1000Facsimile: (614) 246-8110kelmC&.kclmlawfirm. corndetrick @kelznlawfirm,com
COUNSEL FOR APPELLANTDAN W. VOSSMAN
David A. Campbell* (0066494)*Counsel of'RecclYd
G. Ross I3ridgman (0012945).Gregory C. Scheiderer (0087103)Vorys, Sater, Seymour and Pease LLP52 East Gay StreetP. O. Box 1008Columbus, Ohio 43216-1008'Celephone: (614) 479-6100Facsimile: (614) 479-6060dacampbell'L;vorys. comgrbridgman c7r [email protected]
COUNSEL FOR APPELLEESAIRNET SYSTEMS, INC., 'I'OM SCHANER,& QUINN HAMON
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TABLE OF CONTENTS
PAGE
STATEMEN"I' IN OPPOSITION TO JURISDICTION; THIS CASE IS NOT OFPUI3LIC OR GREAT GENERAL IN'IEREST ........................................... .... .......... ............. 1
STATEMENT OF THE CASE AND FACTS ........................ ...............,...................................... 3
1. Procedural I-listory ......................... ...:...........................:......... ...................... 3
II. Plaintiff s Employment with AixNet ........................... ..................................... 3
III. Complaint of Plain.tiff's I:hisafe Flying and the ResultingInvestigation................................. .... ... .. . .. ......... ... ...... ....... .. . .. . .... . .. ..... ... . 3
IV. Plaintiffs Interference with the Investigation ...................... . ................................. 4
V. Directive to Plaintiff to Cease Interfering with the Investigation ........................... 5
VI. Plaintiff Violates the Directive ... ..................................... ..... ...................... 5
VZI. I'laintiff's Discharge #or Violating the Directive........ .. .......................................... 6
LAW A:NIa ARGUMEN'I' IN OPPOSITION TO PROPOSITIONS OF LAW ............................. 6
1. Plailltiff-Appellant's Proposition No. 1: An employee accused ofwrongdoing by the employer should have the right to defend againstthe allegations and terminating the employee for mounting a defensedoes not constitute a legitimate business justification . .......:.................................. 6
A. No Employees Were Similarly Situated to Plaintiff ............ .. ..................... 7
B. National Labor Relations Board Law is Consistent withAirNet's Practice ............................. ............. ........................... . . . $
II. Plaintiff-Appellant's I'roposition No. 2: Once an EmployeeEstablishes a Prima Facie Case of Age Discrimination By ShowingThat I-Ie Was Replaced by Sorneone Substantially Younger, I-1e DoesNot Need to Meet the "Similarly Situated" Standard Set Forth inErcegovich and Kroh in the Pretext State of the Analysis .................................,.. 10
CONCLUSION .............................................. ............................................. ..... ......... 13
CERTIFICATE OF SERVICE ................... . . . ... .......................... . . ......... ...................... 14
I
TABLE OF AUTIIORITIES
PAGE
CASES
Banner Estrella Med Ctr., 358 NLRB NNo. 93 (N.L.R.B. July 30, 2012) ............................ T9,10
Boeing Co., 2013 NLRB LEXIS 537 (NLRB 2013) ........... ................................... ......... ............. 9
Chandler v. Dunn Hardware, Inc., 168 Ohio App.3d 496, 2006-Ohio-4376, 860N.E.2d 1042 (8th Dist.).. ....... ... ..... ............................................... ......... ............................. ..., 13
Dautartas v. AbUott Labs., 10th Dist. Franklin No. 11AP-7(16, 2012-Ohio-1709 ........................ 11
L?etzel v. Brush, 141 Ohio App.3d 474, 751 N.E.2d 1067 (6th Dist.) .......... ......... .................... 13
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998) ................ 8, 10, 11;12
Gaither v. Toledo Area Reg'l TransitAuth., 6th Dist. I,,ucas No. L-12-1359, 2013-C?hio-3181 ................................................ . ............................................ .................... 13
Hapner v. Tuesday Morning, 2d Dist. No. 19395, 2003-Ohio-781 .............................................. 13
Hazen I'crper Co. v. Biggins, 507 U.S. 604 (1993) ... ...... .............. ...................... . . ..... .. ,..,..,.... 9
Hyundai Anzerica ShippingAgency, Inc., 357 NLRB No. 80, 2011 NLRB LEXIS498 (NRLB 2011) . .... .... ....... ....................................,.....................,. ........,................,..,... 9
Indep. Elec. Contrs. v. Hamilton Cty. Div, Pub. Works, 101 Ohio App.3d 580, 656N.E.2d 18 (1 st Dist. 1995) ..................... ......... ....,.... ........... .......... ........ . ................. 9
Illanzer v. Diamond 4'hamrock C'henzs: Co., 29 F.3d 1078 (6th Cir, 1994) ........................ 7, 11, 13
Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Car. 1992). . ...............................................:....>.. 8, 12
San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959) ..... .................... ,..................;. 8
Sweet v. Abbott Foods, Inc., 10th Dist. Franklin No. O4AP-1145, 2005-Ohio-6880 ............. 11, 12
lVigglesworth v, iVfettler Toledo Int'l, Inc., 10th Dist. Franklin No. 09AP-411, 2010-Ohio-2019 . ..................................... .......................................... ..... ..... ...................... 7
STATUTES
National Labor Relations Act § 7 ............................... ............ ............................................ . 8
National Labor Relations Act § 8 .................... .. . ....,.................................. ..........,....... 8
ii
STATEMENT IN OPPOSITION TO JURISDICTION:T1IIS CASE IS NOT OF PUBLIC OR GREAT GENERAL INTEREST
This case does not involve a matter of public or great general interest. Rather, this matter
involves a traditional age discrimination claim that, based on established Ohio law, failed to
survive the summary judgment stage. The trial court and I Oth District Court of Appeals both
determined that Plaintiff Dan Vossman ("Plaintiff') inras unable to prove that the legitimate,
nondiscriminatory reason for his discharge was a pretext under the long-established method for
analyzing claims of discrimination. Plaintiff misconstrues the record in an attempt to allege err
on the part of the lower cour-ts. However, the straightforward and well-reasoned decision by the
10th District (the "Decision") does not present any issues of interest to anyone outside of the
parties. Plaintiff was employed as a pilot for Defendant AirNet Systems, Inco ("AirNet"). He was
accused of violating significant safety policies during some of his flights. AirNet conducted an.
investigation into the allegations that included gathering information through interviews of its
other piiots. However, during the investigation, Plaintiff contacted the other pilots in an effort to
sway the information they provided to AirNet. Accordingly, AirNet directed Plaintiff to cease
discussing the investigation with his co-workers. Plaintiff admits he understood the directive,
but admittedly proceeded to violate the directive by continuing to contact his co-workers about
the investigation. Plaintiff was discharged as a result of his violation of AirNet's confidentiality
directive. Plaintiff has admitted that the reason provided to him for his discharge, his violation
of the directive, was legitimate and trtithful.
Following his discharge, Plaintiff brought his claim for age discrimination against
AirNet and two AirNet employees, Summary judgment was granted dismissing Plaintiff's claim
by the trial court and affirnled by the 10th District. Plaintiff clairnsthat the 10th District's
Decision presents two Propositions of Law for this Court, but neither presents a matter of public
or great general interest.
For is first Proposition of Law, Plaintiff claims that AirNet had a blanket policy regarding
the eonfidentiality of investigations and that the policy runs contrary to federal law and is, thus, a
pretext for age discrimination. Plaintiff s az:gzzment completely misrepresents the record and
AirNet's confidentiality directive. AirNet does not have a blanlcet policy regarding the
confidentiality of investigations. Rather, as recognized by the l Oth District's Decision, AirNet
issued the individualized directive to Plaintiff after deternlining that he was interfering with the
investigation. Thus, no employees violated the same directive and were similarly-situated to
Plaintiff. Additionally, Plaintiff's argument completely misrepresents the National Labor
Relations Board law he relies upon to claim AirNet's requirement of confidentiality ran contrary
to federal law. The Board law actually supports AirNet's use of an individualized directive
rather than a blanket, generalized policy.
For his second Proposition of Law, Plaintiff claims that summary judgment should not be
granted if a plaintiff ineets the prima facie case of discrimination. However, rather than
supporting a reversal of established law as indicated by the Proposition, Plaintiff s argument
focuses on claiming the Decision erred in finding Plaintiff could not show pretext dtte to his
inability to show similarly-situated employees. As discussed in response to the first Proposition
of Law, Plaintiff is unable to show pretext by pointing to similarly-situated employees because
no other employees were subject to the confidentiality directive as was Plaintiff. The Decision
correctly applied well established federal and Ohio law to determine that Plaintiff is unable to
show that AirNet's legitimate, nondiscriminatory reason for his termination was a pretext.
2
STATEMENT QF TI-lE CASE AND FAC7'S
1. Procedural I-listorv
This is an age discrimination case brought by a pilot Nvho was discharged for violating a
clear directive issued to him by his employer, AirNet. Following his discharge, Plaintiff brought
his complaint for age discrimination against AirNet and two AirNet employees, Quinn I-lamon
("Hamon") and Tom Schaner ("Schaner") (AirNet, Hamon, and Schaner are, collectively,
"Defendants"). During the proceedings in trial court, Defendants sought leave to file an
amended answer in order to assert a single additional affirmative defense. After the court
granted Defendants' motion for leave, Plaintifj'sought sanctions against Defendants for having
sought leave to assert the defense. The trial court denied Plainti.ff's motion for sanctions.
Subsequently, on October 19, 2012, the trial court granted summa.ry judgment in favor of
Defendants against Plaintiff's single claim. Plaintiff appealed both the trial court's (1) decision
granting summary judgment and (2) decisions granting leave to Defendants to assert the
affirnlative defense and denying Plaintiff's motion for sanctions, The Tenth District Court of
Appeals overruled both of Plainti-ff's assignments of error.
H. Plaintiff s Employment with AirNet
AirNet is an airline carrier in the business of time-sensitive eargodelivery. Plaintiff
worked at AirNet as a pilot for 17 years. For the time-period relevant to this matter, Schaner
worked as AirNet's Director of Operations, and l-lamon reported to Schaner and worked as
A.irl^Tet's Chief Pilot.
III. Complaint of Plaintiff's Unsafe Flying and the Resulting Investiaation
In March of 2011, an AirNet employee, Amy Blackburn, reported to 1-Iamon and
AirNet's Director of Safety of multiple unsafe flying experiences with Plaintiff. The reports of
3
Plaintiff's behavior, if true, would entail AirNet policy violations and subject him to discharge.
Accordingly, AirNet began an investigation into the reports of Plainbff's flying behavior.
Initially, for the investigation, Schaner, Blackburn, and AirNet's Director of Htiman
Resources met with Plaintiff to discuss the allegations of Plaintiff's behavior. Plaintiff recalled
the flying incidents prior to being infornled of the complaining employee. Based on the
seriousness of Blackburn's complaint and Plaintiff's recollection of the flightsat issue, AirNet
made the decision to suspend Plaintiff with pay pending the completion of the investigation.
Due to the lack of objective information on the two flights that initiated the employee complaint,
the next step in the investigation was to interview other pilots regarding Plaintiff s flying habits.
IVa Plaantpff s Interference with the Investigation
After the initial interview of Plaintiff, Plaintiff admits that he was aware that the
allegations were serious and that AirNet would be conducting an investigation into the
allegations. However, AirNet was able to interview only two pilots for the investigation into
Plaintiff's flying behavior, Keith McGeorge and Mike Troy. Both pilots reported incidents of
Plaintiff intentionally violating AirNet and/or FAA regulations.
Following the initial interview, Plai7itiff immediately began contacting his co-workers in
an attempt to gain their support' and, in the process, informed his co-workers of the ident.ity of
the complainant. Based Plaintiff's pleas for suppoi-t, Schaner received communications from
Plaintiff's co-workers regarding the investigation.
' Plaintiff's Memorandum claims that he contacted co-workers based on the advice of counsel.In his Brief before the 10th District, Plaintiff identified this counsel as Roy BrennLr, an "AirNetpilot who was also an attorney.°" (1'laintiff"s Appellate Brief at 4, 6). fIowever, based on theOhio Supreme Court's website, Roy Brenner has not been registered as an attorney.
4
V. Directive to Plaintiff to CeaseTnterferiny, with the Investi ation
The day after Schaner received cominunications made at 1'laintiff's urging, AirNet's
Director of Iluman Resources informed Plaintiff that he was not permitted to have any further
contact with his co-workers regarding the investigation issues. Contrary to Plaintiff's claim in
his memorandum that he was not provided an explanation for the directive, Plaintiff admitted in
his deposition that the Director of f1R advised him that the directive was issued because his pleas
to co-workers were preventing AirNet from conducting an investigation into the matter.
(Plaintiff's Deposition at 105).
Contrary to Plaintiffys argurnent, on which he bases nearly all his argurnents for
jurisdiction of this Court, the directive to Plaintiff was not a blanket AirNet policy. Rather thail
being a blanket policy, the directive was issued only to Plaintiff based on the need to end his
interference with the investigation. (See Decision at 3; 6).
VI. PlaintiffVialates the Directive
Plaintiff admits that he understood AirNet's directive and that it was reasonable.
Nonetheless, Plaintiff violated the directive and continued to contact his co-workers about the
investigation, (See Decision at 1^1j 6, 24; Plaintiff's Deposition at 105-106, 116 ("Q. And you
knowingly, violated that directive after that discussion? A. That is correct.")). Schaner learned
from two AirNet pilots, Keith McGeorge and Bill Ronk, that Plaintiff contacted them to discuss
the ongoing investigation after Plaintiff received the directive from I1R to cease his pleas to co-
workers.2 Plaintiff acknowledges that, when speaking with one co-worker about the
2 PIaintiff s memorandum makes the unsupported allegation that Tom Schaner perjured himselfwhen stating that he learned from Keith McGeorge and Bill Ronk that Plaintiff was violating thedirective. However, Plaintiffs memorandum rnakes the same error as Plaintiff's appellate briefbefore the 10th District, in that Plaintiff bases his entire argument on language regarding a phonecall and timing of that phone call that are not in the affidavit. Schaner's affidavit is wholly
investigation after the directive, Plaintif#' infornted the co-worker that he was not supposed to be
speaking to him about the investigation.
VII. Plaintiff's Discharge for Violatiiig the I)irective
On March 17, 2011, Tom Schaner made the decision to discharge Plaintiff because
Plaintiff openly discussed the ongoing investigation with co-workers in violation of AirNet's
directive to him. Schanernotified Plaintiff of his reasoning for the discharge, and Plaintiff
admits that Schaner's grounds for the discharge were truthful. Plaintiff is aware of no other
AirNet pilot that partook in misconduct similar to his own. Further, Plaintiff adi-nits that he
never experienced any age-based comments during his employment and, during the investigation
of allegations of Plaintiff's unsafe :tlying, never asserted any belief that he thottght the
investigation was iinpacted at all by his age.
LAW AND ARGUMENT IN OPPOSITION TO PROPOSITIONS OF LAW
1. Plaintiff-Appellant's Proposition No. 1: An employee accused of wrongdoing by theemployer should have the right to defend against the allegations and terminating theemployee for mounting a defense does not constitute a legitimate businessj ustification.
Plaintift's proposition of law is predicated on two flawed prenzises. First, in arguing that
AirNet used the directive as pretext for age discrimination, Plaintiff argues that other employees
violated the directive and were not disciplined. However, Plaintiff fails to acknowledge that the
directive was not a blanket policy, but was issued to Plaintiff in response to his repeated
interference with the investigation into serious allegations of his unsafe flying. Second, Plaintiff
argues that National Labor Relations Board law is inconsistent with his discharge. However,
regardless of federal courts' jurisdiction over Board law, Plaintiff completely misrepresents the
consistent with the fact that, after receiving the directive, Plaintiff discussed the investigationwith Bill Ronk and Keith McGeorge. (Decision at ^,I, 6).
6
lone Board decision he relies on, Banner E'strella 1VTed Ctr., 358 NLRB No. 93 (N.L,IZ.I3.
July 30, 2012). The Banner _F„strellcr Aled. Ctr, decision actually suppoi-ts AirNet's directive, for
it encourages employers to first determine the need for a directive rather than iitstitute a blanket,
generalized rule against employees discussing ongoing investigations.
A. No Employees Were Similarly Situated to Plaintiff
The first portion of Plaintiff's argument in favor of the first proposition of law does not
present an issue of public or great general interest, but, iYlstead, merely argues that the appellate
court erred in determining that AirNet's legitimate reason for his discharge was not a pretext.
Plaintiff's argument that AirNet's legitimatereason for his discharge, Plaintiff s violation of the
directive, was a pretext relies upon his assertion that three other employees, Blackburn,
McGeorge, and Troy, all discussed the investigation and were not disciplined. As with other
portions of his memorandum, to make this argtiment, Plaintiff must misrepresent the directive
that was issued to him as a blanket Airl4Tet policy. Contrary to Plaintiff's assertion, rather than
being a blanket policy, the directive was issued only to Plaintiff after the deternlination that
Plaintiff was contacting co-worlcers and encouraging them to take his side and issue statements
on his behalf to AirNet. (Decision at ^, 6).
"[A] plaintiff may establish pretext'oy demonstrating that an employer applied conipany
policy differently in disciplining similarly-situated employees, iVig^,rlesworth v. lVettler Toledo
Int'l. 1'nc., 1Oth Dist. Pranklin No. 09AP-411, 2010--Ohio-2019,11,1124. To do so, a plaintiff must
present "evidence that other employees, particularly employees not in the protected class, were
not fired even though they engaged in substantially identical conduct to that which the employer
contends motivated its discharge of plaintiff. " Manzer v. Dianzond Sharycrock Chems. Co., 29
F.3d 1078, 1084 (6th Cir. 1994). "[T]he individuals with whom the plaintiff seeks to compare
7
hislher treatment must have dealt with the same supervisor, have been subject to the same
standards and have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer's treatment of them for it. "'
Ercegovich v. Goodyear 2'ii-e & Rubber Co., 154 F.3d 344; 352 (6th Cir. 1998) (quoting lllfitchell
v. Toledo 17osp., 964 F.2d 577, 583 (6th Cir. 1992)).
Here, AirNet does not have a policy that investigations must be confidential. (Decision at
30). Rather, the directive to cease contacting co-workers about the iilvestigation was issued
only to Plaintiff because his pleas encouraging co-workers to support him disrupted the
investigation. (Decision at1I 30). Plaintiff was the only employee subject to the investigation of
his flying behavior, the only employee contacting others and encot7raging they take a certain
position and contact AirNet, and the only employee told to cease contacting others. As other
employees had different circumstances from Plaintiff, he fails to point to a similarly situated
employee and, thus, fails to show pretext.
B. Natiortal Labor Relations Board Law is Consistent with AirNefi's Practice
Plaintiff claims that AirNet's reason for discharging Plaintiff, Plaintiff s violation of the
confidentiality directive, was instzfficient because it is inconsistent with federal law. However,
the National Labor Relations Board law relied upon by Plaintiff to support this claim actually
supports AirNet's confidentiality directive and discharge of Plaintiff
Initially, Piaintiff's reliance on the National Labor Relations Act for his state age
discrimination claim is inappropriate. "When it is clear or may fairly be assumed that the
activities which a State purports to regulate are protected by § 7 of the National Labor Relations
Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires
that state jurisdiction must yield," San Diego Bldg. Trades Council v. Gar7non, 359 U.S. 236,
8
244 (1959); see also Indep. Llec. Conlrs. v. Hainilton Cty. Div. I'uh. Morlrs, 101 Ohio App.3d
580, 583, 656 N.E.2d 18 (1 st Dist. 1995). Further, the Supreme Court, in Ilazen Paper Co. v:
Biggins, 507 U.S. 604 (1993), provides that "a plaintiff may not argue that the violation of one
employment statute is somehow evidence of the violation of another employment statute." Icl. at
612. Accordingly, I'laintiff's argunient that the NLRA and its protections for collective
bargaining can establish age discrimination under Ohio law contradicts clear Supreme Court
authority.
Second, even if Board law can be litigated in state court, the Banner Estrella decision
relied upon by Plaintiff does not support the :Iinding of an unfair labor practice in this case. In
I3anner• Estrella, the Board found that the en-iployer's blanket, generalized rule prohibiting
employees from discussing ongoing investigations violated the NLRA. Banner Estrella, 358
NLRB No. 93, 2012 NLRB LEXIS 466, *7-8 (NLRB 2012); see also .floeing Co., 2013 NLRB
LEXIS 537, *5 (NLRB 2013) ("Board law is clear that such blanket confidentiality directives"
are impermissible); Hyunciai America Shilal)ing Agency, Inc., 357 NLRB No. 80, 2011 NLRB
LEXIS 498 (NRLB 2011) (employer violated the NLRA by routinely instructing employees not
to talk to other employees about matters under investigation without consideration of whether
confidentiality was necessary to prevent corruption of the investigation). While the Board holds
that blanket, generalized confidentiality rules violate the NLRA, the Board allows confidentiality
requirements with the burden on the employer "to first determine whether any given
investigation Aztnesses needed protection, evidence was in danger of being destroyed, testimony
was in danger of being fabricated, or there was a need to prevent a cover tip." Banner EstT ella,
2012 NLRB LEXIS 466, * 8(inte.rnal forn-iatting omitted).
9
I-lere, unlike the employer's blanket rule in Banner Estrella, AirNet did not have a
generalized confidentiality policy. Rather, AirNet prohibited Plaintiff from discussing the
investigation only after determining he was contacting witnesses and influencing their testimony.
(Decision at T 6; Plaintiff's Deposition at 99-100, 105-06). Accordingly, AirNet's directive,
made only to Plaintiff after determining he was putting the objectivity of the investigation at risk,
was in full compliance with Board law. Because this case does not present an issue where the
employer's policy conflicts with Board law, P.laint..iff's arguments for jurisdiction fail.
H. Plaintiff-Appellant's Proposition No. 2r Once an Employee Establishes a PrimaFaeie Case of Age Discrimination By Showing That He Was Replaced by SomeoneSubstantially Younger, He Does Not Need to Meet the "Similarly Situated"Standard Set Forth in Ercegavich and Kroh in the Pretext State of the Analysis.
While Plaintiff's Proposition of Law No. 2 seeks to completely remove any analysis of
"similarly situated" employees fronl the summary judgment stage, Plai.ntiff's argument in
support of the Proposition merely rehashes his claim that the trial and appellate courts erred in
determining that he was unable to prove any similarly situated, unprotected employees were
treated more favorably. Plaintiff recognizes that he attempted to prove pretext by arguing that he
was treated differently that similarly situated employees who were substantially younger.
(Plaintiff's Brief at $-9 ("a plaintiff who shows dissimilar discipline of a younger employee for
violations of comparable seriousness establishes pretext and, therefore, raises a question of fact
as totheultinlate issue of discrimination"). I-Iowever, here, the trial and appellate court correctly
recognized that no similarly situated employees engaged in the sanie behavior as Plaintiff. The
decision that Plaintiff could point to no similarly situated employees was not in error, and the
determination that Plaintiff could not point to similarly situated eniployees as a matter of law is
an issue regularly decided by courts at the summary judgment stage. Accordingly, the Decision
follows established Ohio law and is not of public or great general interest.
10
Plaintiff does not dispute that AirNet's reason for Plaintiff s discharge, Plaintiff's
violation of the confidentiality directive, is a legitimate, nondiscriminatory reason. (Decision at
25). A plaintiff cannot establish that a reason is a pretext "unless it is shown both the reason
was false, and that discrimination was the real reason." Dautartas v. Abbott Lahs., l Oth Dist,
Franklin No. 1 IAP-706, 2012-Ohio-1709, ¶ 28. In order to establish that a reason was pretext,
the plaintiffmustprove "(1) that the proffered reasons had no basis in fact, (2) that the proffered
reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate his
discharge." Siveet v. Abbott Foods, Inc., 10th Dist. Franklin No. 04AP-1145, 2005-Ohio-6880, ¶
34 (quoting Manzer v. Diamond Shamrock Cherns. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)).
Plaintiff attempts to show pretext under the third prong of the lllanzer analysis by arguing
that similarly-situated employees received more favorable treatment despite engaging in the
same conduct. (Decision at 1128), Accordingly, Ptaintiffmust present "evidence that other
employees, particularly employees not in the protected class, were not fired even though they
engaged in substantially identical condtict to that which [AirNet] contends motivated its
discharge of [Plaintiff]." (Decision at ¶ 28 (quoting Manzer, 29 F.3d at 1084)). "[T]he plaintiff
and the employee with whom the plaintiff seeks to compare himself or herself must be similar in
all of the relevant aspects." Ercegovich v. Goodyear Tire &Ruhber Co., 154 F.3d 344, 352 (6th
Cir. 1998). As previously discussed, "'the individuals with whom the plaintiff seeks to compare
his/her treatnient must have dealt with the same st.ipervisor, have been subject to the same
standards and have engaged in the same conduct witliout such differentiating or mitigating
circumstances that would distinguish their conduct or the employer's treatment of them for it.""
Ercegovich, 154 F.3d at 352 (6th Cir. 1998) (quoting Ivlitchell V. Toledo Hosp., 964 F.2d 577,
583 (6th Cir. 1992)).
11
Here, as set forth above, Plaintiff cannot point to any other employees that were treated in
a substantially different rnanner because Plaintiff is the only employee that was issued the
confidentiality directive. AirNet does not have a policy that investigations must be confidential,
but, instead, issued a directive individually to Plaintiff after Plaintiff disrupted AirNet's
investigation. (Decision at T 30). Thus, the trial and appellate cour-ts did not err in determining
that Plaintiff cannot show that he was similarly situated to any AirNet employees that engaged in
the same conduct.
In the alternative to simply arguing the trial and appellate courts erred in determining
Plaintiff cannot show similarly situated employees, Plaintiff seems to argue that he has pointed
to other employees that were treated in a substantially different manner and, tllus, the courts
should not have next proceeded to determine whether those employees that were treated
differently than Plaintiff were also "similarly-situated's to Plaintiff. (See Plaintiffs Brief at 10).
Plaintitf s argument is flawed for two rea:sons. First, as discussed above, Plaintiff is in unable to
show that "other individuals... involved in the investigation... were treated in a substantially
different manner," which Plaintiff seems to argue is an easier test to meet than showing
"similarly-situated." (See Plaintiff's Brief at 10). No other employees were issued the
confidentiality directive that was required by Plaintiff s interference, Second, the determination
that Plaintiff could not show similarly situated employees, an analysis that Plaintiff claims
should always proceed to the jury, is regularly considered at the summary judgment stage. See
Sweet v, Abbott Foods, 1(}th Dist. Franklin No. 04AP-1145, 2005-Ohio-6880, Tj^j 39-43
(summary judgment affirmed as plaintiff could not make the showing of similarly situated
employees for the third h1anzer pretext prong); .Flaps2er v. Tiiesday Morning, 2d Dist. No, 19395,
2003-Ohio-781; ^ 119 (same); Gaither v. Toledo Area IZeg'I Z'ransitAuth., 6th Dist. Lucas No.
12
I,-12-1359, 2013-Ohio-3181, ^j 29 (same); Chandler r>. Dunn Hardtivare, .fnc., 168 Ohio App.3d
496, 2006-Ohio-4376, 860 N.E.2d 1042,T, 42 (8th Dist.) (same); Detzel v. Brush, 141 Ohio
App.3d 474, 486, 751 N.E.2d 1067 (6th Dist.) (same). As the lower court decisions followed
established Ohio law and were not in err, this case does not present an issue of public or great
general interest,
CONCLUSION
The 10th District opinion is straightforward and correctly applies established Ohio law.
This case does not present an issue of public or great general interest and, accordingly, this Court
should not accept jurisdiction over this appeal.
It.espectfully submitted,
./ sc10-avid A. Campbell (0066494G. Ross Bridgman (0012945)Gregory C. Scheiderer (00871VORYS, SA'I'FR, SEYMOUR AND PEASE LLP2100 One Cleveland Center1375 East Ninth StreetCleveland, Ohio 44114-1724Telephone: (216) 479-6100Facsitnile: (216) 479-6060Email: gcscheidererLvorvs.com
Attorneys for Defendants
13
CEIZTI1NICA'TI+". OF SERVICE
The undersigned hereby certifies that on this 13th day of January 2014, a true and correct
copy of the above and foregoing document was served via U.S. Mail upon the following:
Russell A. KehmJoanne W. DetrickLAW OFFICES OFRUSSELL A. KEI1M37 W. Broad Street, Suite 860Columbus, Ohio 43215kelm `c;kehnlawfirni. comdetrick(czJkehnlaw firm. com
• ^ ^^ 1,^ ^.w.-..-David A. Campbell (0066494)G. Ross Bridgman (()012945)Gregory C. Seheidercr (0087103)VORYS, SAT'ER, SEYMOUR AND PEASE LLP2100 One Cleveland Center1375 East Ninth StreetCleveland, Ohio 44114-1724Telephone: (216) 479-6100Facsimile: (216) 479-6060Email: gcscl3eiderer (-vvorys.com
14
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