[Cite as Vossman v. AirNet Sys., Inc., 2018-Ohio-1940.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Dan W. Vossman,                                      :

                 Plaintiff-Appellant,                :

[Russell A. Kelm et al.,                             :        No. 16AP-801
                                                            (C.P.C. No. 11CV-7360)
                           Appellants],              :
v.                                                        (REGULAR CALENDAR)
                                                     :
AirNet Systems, Inc. et al.,
                                                     :
                 Defendants-Appellees.
                                                     :




                                            D E C I S I O N

                                       Rendered on May 17, 2018


                 On brief: Law Offices of Russell A. Kelm, and Russell A.
                 Kelm, for appellants. Argued: Russell A. Kelm.

                 On brief: Elfvin, Klingshirn, Royer & Torch, LLC, and
                 Neil E. Klingshirn, for Amicus Curiae Ohio Employment
                 Lawyers Association.

                 On brief: Vorys, Sater, Seymour and Pease LLP, David A.
                 Campbell, and Gregory C. Schneiderer, for appellees.
                 Argued: David A. Campbell.

                   APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
        {¶ 1} Plaintiff-appellant, Dan W. Vossman ("Vossman"), along with his attorneys,
Russell A. Kelm and Joanne Detrick (collectively "appellants"), appeal the November 7,
2016 judgment entry of the Franklin County Court of Common Pleas which made final and
appealable the court's: (1) February 12, 2015 decision and entry finding defendants-
appellees, AirNet Systems, Inc. ("AirNet"), Thomas Schaner, and Quinn Hamon
(collectively "appellees"), are entitled to recover attorney fees from appellants, pursuant to
No. 16AP-801                                                                              2


R.C. 2323.51(A)(2)(a)(ii), for the time period April 26 through December 10, 2012, and
(2) October 19, 2016 decision and entry finding the amount of attorney fees owed to be
$45,714.53. For the following reasons, we reverse.
I. Procedural History
   A. Merit Determination
       {¶ 2} The facts of this case are summarized in Vossman v. AirNet Sys., Inc., 10th
Dist. No. 12AP-971, 2013-Ohio-4675, and will only be repeated herein as relevant to the
analysis of the assignments of error. On June 15, 2011, Vossman filed suit against appellees
asserting a single cause of action for age discrimination under R.C. 4112.14. On July 12,
2011, appellees filed a motion to dismiss, pursuant to Civ.R. 12(B)(6), asserting Vossman
failed to state a claim upon which relief could be granted. On September 22, 2011, the trial
court denied appellees' motion to dismiss.
       {¶ 3} On October 19, 2012, upon appellees' motion, the trial court entered a
decision granting summary judgment in favor of appellees. The trial court reasoned that:
(1) there was no evidence age discrimination was the basis for Vossman's termination, and
(2) Vossman admitted he does not believe age discrimination was the cause of the
allegations and investigations into his conduct. Vossman appealed. On October 22, 2013,
this court affirmed the trial court's granting of summary judgment in favor of appellees.
Vossman. Vossman appealed to the Supreme Court of Ohio. On March 26, 2014, the
Supreme Court declined to accept jurisdiction of the appeal. Vossman v. AirNet Sys., Inc.,
03/26/2014 Case Announcements, 2014-Ohio-1182.
   B. Motion for Attorney Fees
       {¶ 4} On November 7, 2012, appellees moved for an award of attorney fees against
appellants in the trial court, alleging Vossman's claim was frivolous and Vossman's counsel
vigorously continued to pursue the frivolous claim pursuant to R.C. 2323.51 and Civ.R. 11.
In the motion for attorney fees, appellees stated the allegations made by Vossman in his
complaint and relied on to overcome appellees' motion to dismiss were ultimately revealed
to be untruthful when appellees' counsel deposed Vossman. Appellees argued the following
allegations made by Vossman were unsubstantiated: (1) his co-worker's allegations
regarding his flying behavior was false and based on his age, (2) the investigation into his
behavior revealed his co-worker's allegations were unsubstantiated, (3) he was never
directed to keep the investigation confidential, and (4) he was pretextually terminated
No. 16AP-801                                                                                 3


because of his age. In support of its argument, appellees pointed to Vossman's own
admissions in his deposition testimony that: (1) there was truth to his co-worker's
allegations of his flying behavior, (2) he was directed to keep the investigation confidential,
(3) he violated the confidentiality directive, and (4) he never believed his co-worker's
allegations against him were age based. Appellees argued Vossman's own admissions made
the initial complaint lack evidentiary support and that his initial filing of the complaint and
subsequent pursuit of the case through baseless arguments served only to harass and
impose litigation costs on appellees. Appellees argued Vossman's pursuit of the case
through baseless and untrue allegations was in violation of Civ.R. 11 and constituted
frivolous conduct in violation of R.C. 2323.51. Therefore, appellees argued the case was
frivolous as it could not be supported by a good-faith argument.
       1. Entitlement Determination
       {¶ 5} On May 22, 2013, the magistrate conducted a hearing on the motion for
attorney fees. On June 3, 2014, the magistrate rendered a decision which granted appellees'
motion for an award of attorney fees, in part. The magistrate found, pursuant to R.C.
2323.51(A)(2)(a)(ii), appellees were entitled to recover reasonable attorney fees they
incurred from April 26 through December 10, 2012 from appellants. The magistrate
reasoned: "It was absolutely clear, under existing age-discrimination law, that no
reasonable attorney would have continued to prosecute [Vossman's] age-discrimination
cause of action after April 26, 2012," the date appellees' counsel deposed Vossman. (June 3,
2014 Mag. Decision at 14.)
       {¶ 6} On June 17, 2014, appellants filed objections to the magistrate's decision.
Along with the objections, appellants submitted three affidavits, one from Vossman's trial
counsel, Kelm, one from attorney Paul Tobias of Cincinnati, and one from attorney
Frederick Gittes of Columbus. All the affiants are employment law practitioners in Ohio.
Appellees did not file a response.
       {¶ 7} On February 12, 2015, the trial court overruled appellants' objections to the
magistrate's decision and found the magistrate properly determined the factual issues and
applied the law correctly. The court reasoned "there is no evidence, direct or indirect, that
[Vossman's] age actually motivated [appellees] to terminate him or that his age played any
role in his termination." (Feb. 12, 2015 Decision at 8.) The court found:
              The record indicates that by April 26, 2012, [Vossman] and his
              counsel knew: (1) [appellees] had a legitimate reason to
No. 16AP-801                                                                                              4


                investigate and suspend [Vossman], (2) [Vossman] was the
                only employee under suspension, under investigation, and
                issued a confidentiality directive, and (3) [appellees'] stated
                reason for terminating [Vossman's] employment was true.
                Nevertheless, with no proof that age was a factor behind his
                termination, [Vossman] and his counsel continued to
                prosecute this action.

(Feb. 12, 2015 Decision at 8-9.) Finally, the trial court held: "Upon review, this Court finds
that [Vossman] and his counsel definitively knew by April 26, 2012, that there was no
evidence of similarly situated employees being treated more favorably than [Vossman].
[Vossman] and his counsel also knew, by April 26, 2012 at latest, that there was no
evidence, circumstantial or direct, indicating that age actually motivated [appellees']
decision to terminate [Vossman's] employment." (Feb. 12, 2015 Decision at 9.) The trial
court adopted the magistrate's decision and held appellees were entitled to recover attorney
fees from appellants, pursuant to R.C. 2323.51(A)(2)(a)(ii), which were incurred from
April 26 through December 10, 2012. The court referred the matter back to the magistrate
to determine the reasonable amount of attorney fees due to appellees.
        2. Amount Determination
        {¶ 8} On June 18, 2015, the magistrate conducted an evidentiary hearing to
determine the amount of attorney fees owed to appellees. Appellees presented expert
testimony as well as several exhibits which were admitted into evidence. (See Deft.'s Ex. A
through H.) Appellants presented the testimony of Schaner and Vossman's own trial
counsel, Kelm. Appellants presented several exhibits, only some of which were admitted
into evidence. (See Pltf.'s Ex. 8 through 15.)1 The magistrate found appellees incurred
reasonable attorney fees in the amount of $45,714.53 from April 26 through December 10,
2012. The magistrate further found that AirNet is the real party in interest pursuant to the
receiver (appointed by the United States District Court for the Northern District of Georgia,
Atlanta Division, in case N.D.Ga. No. 1:14-cv-00178-WSD), having authorized AirNet's
counsel to prosecute AirNet's claim for attorney fees and conclude this litigation. The court
found the receiver confirmed appellees' counsel's authority in an e-mail communication.




1Plaintiff's Exhibits 1 through 7 were proffered but not admitted into evidence. Appellants, however, do not
assign as error on appeal the trial court's determination to deny the motion to admit such exhibits into
evidence. Therefore, they will not be considered as part of the court's record.
No. 16AP-801                                                                                5


       {¶ 9} On August 3, 2015, appellants submitted their objections to the magistrate's
decision on grounds that the decision: (1) granted attorney fees for illegal activity by
appellees and their counsel, (2) granted attorney fees to AirNet now in receivership, in
violation of a federal court ordered stay of proceedings, and (3) granted attorney fees to
appellees who are not the real party in interest, since these claims are owned by a federal
court receiver. On August 31, 2015, appellees filed a memorandum contra appellants'
objections to the magistrate's decision.
       {¶ 10} On October 19, 2016, the trial court overruled appellants' objections and
adopted the magistrate's decision in its entirety.      The trial court found appellants'
objections to be not well-taken. The court found appellees were entitled to recover attorney
fees in the amount of $45,714.53, pursuant to R.C. 2323.51(A)(2)(a)(ii), from appellants.
   C. Final Appealable Order
       {¶ 11} On November 7, 2016, the trial court filed a final judgment entry thereby
making final and appealable the court's judgment entries filed February 12, 2015 and
October 19, 2016. Appellants filed a notice of appeal to this court.
II. Assignments of Error
       {¶ 12} Appellants appeal and assign the following three assignments of error for our
review:
              I. THERE WERE SUFFICIENT FACTS AVAILABLE TO
              PLAINTIFF AT TRIAL TO MAKE IT ERROR TO AWARD
              SANCTIONS    FOR    FRIVILOUS  CONDUCT   FOR
              PROCEEDING WITH THE CASE.

              II. DEFENDANTS AND COUNSEL ENGAGING IN ILLEGAL
              CONDUCT SHOULD NOT BE AWARDED SANCTIONS
              WHICH WOULD REWARD THEIR CONDUCT IN
              OBTAINING    SUMMARY    JUDGMENT     THROUGH
              PERJURED TESTIMONY.

              III. OWNERSHIP OF A RECEIVERSHIP ASSET CANNOT BE
              PROVEN BY HEARSAY TESTIMONY AS TO WHAT THE
              RECEIVER TOLD THEM.

III. Analysis
       {¶ 13} Before discussing appellants' assignments of error, it is important to consider
what was actually appealed and what can be considered on appeal. In simplest terms, this
case breaks down to three trial court determinations. First, the trial court determined to
No. 16AP-801                                                                               6


grant summary judgment on the complaint in favor of appellees.                It made this
determination in the October 19, 2012 decision granting appellees' motion for summary
judgment. As noted previously, we affirmed this determination in Vossman, and the
Supreme Court declined to review this determination. The appeal before us today will not
address this first determination as it has already been reviewed and affirmed by this court.
We will refer to this determination as the "merits determination."
       {¶ 14} Second, the trial court determined appellees are entitled to recover attorney
fees from appellants. The court made this determination in the February 12, 2015 decision
overruling appellants' objections to the magistrate's June 3, 2014 decision. We will refer to
this determination as the "entitlement determination."
       {¶ 15} Third, the trial court determined the amount of attorney fees to which
appellees were entitled from appellants.      The court made this determination in the
October 19, 2016 decision and entry adopting the magistrate's June 19, 2015 decision and
overruling appellants' objections to the magistrate's decision.      We will refer to this
determination as the "amount determination."
       {¶ 16} On November 7, 2016, the trial court entered a final judgment entry making
the entitlement determination and the amount determination final and appealable.
       {¶ 17} Appellants' notice of appeal states they are appealing from: (1) the court's
final judgment entry dated November 7, 2016 (which encompasses the entitlement and
amount determinations), and (2) the October 19, 2016 decision adopting the magistrate's
June 19, 2015 decision and overruling appellants' objections to the magistrate's decision
(the amount determination).
       {¶ 18} Although appellants specifically state in the notice of appeal they are
appealing the amount determination, the assignments of error address the entitlement
determination only. Appellants do not challenge the amount determination. For that
reason, we will focus our analysis on the trial court's second determination—that appellees
are entitled to recover attorney fees from appellants.
   A. First Assignment of Error
       {¶ 19} In their first assignment of error, appellants argue the trial court erred by
awarding sanctions for frivolous conduct because there were sufficient facts for them to
proceed with the case.
No. 16AP-801                                                                                                     7


        1. Authority for Trial Court's Determination of Frivolous Conduct
        {¶ 20} The trial court awarded attorney fees, pursuant to R.C. 2323.51(B), having
found that appellants engaged in frivolous conduct as defined in R.C. 2323.51(A)(2)(a)(ii).2
R.C. 2323.51(A)(2)(a)(ii) defines frivolous conduct as:
                 [Conduct which] is not warranted under existing law, cannot
                 be supported by a good faith argument for an extension,
                 modification, or reversal of existing law, or cannot be
                 supported by a good faith argument for the establishment of
                 new law.

        2. Standard of Review
        {¶ 21} Here, we apply the standard of review as previously outlined in Vossman. In
Vossman, we stated:
                 Pursuant to R.C. 2323.51, a court may "award * * * court costs,
                 reasonable attorney's fees, and other reasonable expenses
                 incurred in connection with a civil action or appeal * * * to any
                 party to the civil action or appeal who was adversely affected
                 by frivolous conduct." R.C. 2323.51(B)(1). "Conduct" includes
                 "[t]he filing of a civil action, the assertion of a claim, defense,
                 or other position in connection with a civil action, the filing of
                 a pleading, motion, or other paper in a civil action, * * * or the
                 taking of any other action in connection with a civil action."
                 R.C. 2323.51(A)(1)(a). "Frivolous conduct" is conduct that
                 (1) obviously serves merely to harass or maliciously injure
                 another party to the civil action; (2) is not warranted under
                 existing law and cannot be supported by a good-faith
                 argument for an extension, modification, or reversal of
                 existing law; or (3) consists of allegations or other factual
                 contentions that have no evidentiary support or are not likely
                 to have evidentiary support after a reasonable opportunity for
                 further investigation. R.C. 2323.51(A)(2)(a).



2 Before the trial court, appellees also argued that appellants' conduct was frivolous because: (1) it served
merely to harass or maliciously injure appellees or is for another improper purpose, including, but not limited
to, causing unnecessary delay or a needless increase in the cost of litigation, and (2) it consisted of allegations
or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to
have evidentiary support after a reasonable opportunity for further investigation or discovery. See R.C.
2323.51(A)(2)(a)(i) and (iii). The trial court did not make any determination, express or implicit, whether
appellants' conduct served merely to harass or maliciously injure appellees or was for another improper
purpose. We decline to make such a determination in the first instance. The trial court did, however, make an
implicit determination that appellants' allegations and factual contentions had no evidentiary support,
although the court did not refer to the specific statutory authority in making such findings. Furthermore,
appellants' assignment of error specifically argues there existed sufficient facts for them to proceed.
Accordingly, we will discuss these determinations as relevant to our analysis of the trial court's finding
pursuant to R.C. 2323.51(A)(2)(a)(ii).
No. 16AP-801                                                                              8


              "No single standard of review applies in R.C. 2323.51 cases;
              the inquiry is one of mixed questions of law and fact." [Judd
              v. Meszaros, 10th Dist. No. 10AP-1189, 2011-Ohio-4983,] at
              ¶ 18, citing Wiltberger v. Davis, 110 Ohio App.3d 46, 51 (10th
              Dist.1996). Initially, the court must conduct a factual inquiry
              to determine whether the party's conduct was frivolous. Judd
              at ¶ 18. "Review of a trial court's factual determinations
              involves some degree of deference, and we will not disturb a
              trial court's findings of fact where the record contains
              competent, credible evidence to support such findings." Id.,
              citing Wiltberger at 52.

              " 'A determination that conduct is not warranted under
              existing law and cannot be supported by a good faith
              argument for an extension, modification, or reversal of
              existing law requires a legal analysis.' " Stuller v. Price, 10th
              Dist. No. 03AP-30, 2003-Ohio-6826, ¶ 14, quoting Sain v.
              Roo, 10th Dist. No. 01AP-360 (Oct. 23, 2001). See also Riston
              v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, ¶ 20-21,
              (1st Dist.); Judd at ¶ 19. We review pure questions of law
              under a de novo standard. Id. at ¶ 19.

Id. at ¶ 40-42.
       3. Standard for Trial Court to Award Attorney Fees
       {¶ 22} Appellants cite McCallister v. Frost, 10th Dist. No. 07AP-884, 2008-Ohio-
2457, ¶ 31, to support the argument that "only" where there is an absolute dearth of any
evidence are sanctions appropriate. (Appellants' Brief at 15.) We disagree that this court
has set such a high standard for the award of sanctions. Appellants mischaracterize
McCallister. McCallister does not use the term "only" and does not require an absolute
dearth of evidence before sanctions are awarded. Rather, the McCallister court, regarding
the specific circumstances before it, commented that there was an absolute dearth of
evidence to support the plaintiff's claim.
       {¶ 23} We agree with appellants, however, that even where there is not enough
evidence to survive a motion for summary judgment, this does not necessarily translate into
a frivolous claim. See Homewood Homes, Inc. v. Helwig, 10th Dist. No. 08AP-406, 2009-
Ohio-1699, ¶ 33. We also agree that the inquiry into whether a claim is frivolous may be
informed by an examination of a lawyer's obligations pursuant to the Ohio Rules of
Professional Conduct. Appellants point us in particular to Rule 3.1 and the official comment
thereto, which read in relevant part:
No. 16AP-801                                                                              9


              RULE   3.1: MERITORIOUS                      CLAIMS         AND
              CONTENTIONS

              A lawyer shall not bring or defend a proceeding, or assert or
              controvert an issue in a proceeding, unless there is a basis in
              law and fact for doing so that is not frivolous, which includes a
              good faith argument for an extension, modification, or reversal
              of existing law. A lawyer for the defendant in a criminal
              proceeding, or the respondent in a proceeding that could result
              in incarceration, may nevertheless so defend the proceeding as
              to require that every element of the case be established.

                                        Comment

              [1] The advocate has a duty to use legal procedure for the fullest
              benefit of the client's cause, but also a duty not to abuse legal
              procedure. The law, both procedural and substantive,
              establishes the limits within which an advocate may proceed.
              However, the law is not always clear and never is static.
              Accordingly, in determining the proper scope of advocacy,
              account must be taken of the law's ambiguities and potential
              for change.

              [2] The filing of an action or defense or similar action taken for
              a client is not frivolous merely because the facts have not first
              been fully substantiated or because the lawyer expects to
              develop vital evidence only by discovery. What is required of
              lawyers, however, is that they inform themselves about the
              facts of their clients' cases and the applicable law and
              determine that they can make good faith arguments in support
              of their clients' positions. Such action is not frivolous even
              though the lawyer believes that the client's position ultimately
              will not prevail. The action is frivolous, however, if the lawyer
              is unable either to make a good faith argument on the merits of
              the action taken or to support the action taken by a good faith
              argument for an extension, modification, or reversal of existing
              law.

       {¶ 24} Finally, both parties agree that in order for a trial court to award attorney
fees, pursuant to R.C. 2323.51(A)(2)(a)(ii), the court must find that "no reasonable lawyer
would have brought the action in light of the existing law." We have previously stated that:
              R.C. 2323.51 employs an objective standard in determining
              whether sanctions may be imposed for frivolous conduct.
              Stevenson v. Bernard, 11th Dist. No. 2006-L-096, 2007-Ohio-
              3192, ¶ 41. Therefore, a finding of frivolous conduct under R.C.
              2323.51 is determined without reference to what the individual
              knew or believed. Wauseon v. Plassman, 6th Dist. No. F-96-
No. 16AP-801                                                                                               10


                003 (Nov. 22, 1996). Accordingly, R.C. 2323.51 is broader in
                scope than Civ.R. 11. State Farm Ins. Cos. v. Peda, 11th Dist.
                No. 2004-L-082, 2005-Ohio-3405, ¶ 25.
Stafford v. Columbus Bonding Ctr., 177 Ohio App.3d 799, 2008-Ohio-3948, ¶ 6 (10th
Dist.).
          4. Law of Employment Discrimination
          {¶ 25} Taking all this into consideration, we now examine the existing law of
employment discrimination. In Vossman, we stated:
                "To prevail in an employment discrimination case, a plaintiff
                must prove discriminatory intent" and may establish such
                intent through either direct or indirect methods of proof.
                Ricker v. John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th
                Dist.1998), citing Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d
                578, 583 (1996). Absent direct evidence of age discrimination,
                a plaintiff may indirectly establish discriminatory intent using
                the analysis promulgated in McDonnell Douglas Corp. v.
                Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), as adopted by
                Supreme Court of Ohio in Barker v. Scovill, Inc., 6 Ohio St.3d
                146 (1983), and modified in Coryell v. Bank One Trust Co.
                N.A., 101 Ohio St.3d 175, 2004-Ohio-723.

Id. at ¶ 15.
                a. Law of Establishing a Prima Facie Case
          {¶ 26} Appellants stated they intended to prove discriminatory intent on the part of
appellees indirectly, using circumstantial evidence. The Supreme Court of Ohio outlined
the test for proving such intent indirectly in Coryell v. Bank One Trust Co., N.A., 101 Ohio
St.3d 175, 2004-Ohio-723:
                [A]bsent direct evidence of age discrimination, in order to
                establish a prima facie case of a violation of R.C. 4112.14(A) in
                an employment discharge action, a plaintiff-employee must
                demonstrate that he or she (1) was a member of the statutorily
                protected class, (2) was discharged, (3) was qualified for the
                position, and (4) was replaced by, or the discharge permitted
                the retention of, a person of substantially younger age.3

Id. at ¶ 20.




3In Coryell, the Supreme Court held that "[a]ccordingly, we hold that a plaintiff may plead a prima facie case
of age discrimination by pleading 'a short and plain statement of the claim showing that the party is entitled
to relief.' " Id. at ¶ 25, citing Civ.R. 8(A)(1).
No. 16AP-801                                                                                11


       {¶ 27} Alternatively, a plaintiff can establish the fourth prong by demonstrating that
a " 'comparable non-protected person was treated better.' " Vossman at ¶ 16, quoting
Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir.1992); Clark v. Dublin, 10th Dist.
No. 01AP-458, 2002-Ohio-1440. Establishing a prima facie case " 'creates a presumption
that the employer unlawfully discriminated against the employee.' " Williams v. Akron,
107 Ohio St.3d 203, 2005-Ohio-6268, ¶ 11, quoting Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981).
       {¶ 28} The trial court determined Vossman established a prima facie case, and we
affirmed that determination in Vossman.
           b. Law of Articulating a Legitimate Non-discriminatory Reason for
              Terminating Vossman's Employment

       {¶ 29} If a plaintiff establishes a prima facie case, the burden of production shifts to
the employer to articulate some legitimate, non-discriminatory reason for discharging the
employee. Caldwell v. Ohio State Univ., 10th Dist. No. 01AP-997, 2002-Ohio-2393, ¶ 61,
citing Burdine at 253. "The employer meets its burden of production by submitting
admissible evidence that ' "taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action" ' * * * that the prima facie case
establishes." (Emphasis sic.) Vossman at ¶ 17, quoting Williams at ¶ 12, quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993).
       {¶ 30} Appellants did not contest that appellees established a legitimate, non-
discriminatory reason for Vossman's termination: "because [Vossman] violated a known
directive [that Vossman cease communicating with other AirNet employees regarding the
complaint by continuing to communicate with other co-employees regarding the
continuing investigation]." Id. at ¶ 24.
           c. Law of Pretext
       {¶ 31} If the employer meets its burden of production by articulating a legitimate
non-discriminatory reason for termination, a plaintiff must prove by a preponderance of
the evidence that the employer's legitimate, non-discriminatory reason was merely a
pretext for unlawful discrimination. Barker v. Scoville, Inc., 6 Ohio St.3d 146, 148 (1983).
" 'The ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.' " Ohio Univ. v.
Ohio Civ. Rights Comm., 175 Ohio App.3d 414, 2008-Ohio-1034, ¶ 67 (4th Dist.), quoting
No. 16AP-801                                                                                12


Burdine at 253. " '[A] reason cannot be proved to be "a pretext for discrimination" unless' "
plaintiff demonstrates " 'both that the reason was false, and that discrimination was the
real reason.' " (Emphasis sic.) Williams at ¶ 14, quoting St. Mary's Honor at 515.
       {¶ 32} The trial court found that "[ Vossman] and his counsel * * * knew, by April 26,
2012 at [the] latest, that there was no evidence, circumstantial or direct, indicating that age
actually motivated [appellees'] decision to terminate [Vossman's] employment." (Feb. 12,
2015 Decision at 9.) In particular, the court found that after the April 26, 2012 deposition,
Vossman and his counsel knew "[appellees'] stated reason for terminating [Vossman's]
employment was true [and] no proof that age was a factor behind his termination." (Feb. 12,
2015 Decision at 9.) The trial court also found that Vossman and his counsel "definitively
knew by April 26, 2012, that there was no evidence of similarly situated employees being
treated more favorably than [Vossman]." (Feb. 12, 2015 Decision at 9.)
       {¶ 33} In support of the trial court's finding, appellees point this court to Vossman's
own testimony and admission that he was instructed to cease communications with other
AirNet employees regarding the investigation and that he violated this instruction.
Appellees argue, therefore, that given Vossman's own testimony, Vossman and his counsel
were aware that they could not meet the first criteria for proving pretext—that the reason
given by the employer was false. We will consider the same in light of the existing law of
pretext and whether a reasonable lawyer would have continued to pursue the action.
       {¶ 34} Appellants point to the general law outlined in St. Mary's Honor, and Manzer
v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994), as case law
supporting the continued pursuit of this case after Vossman's deposition. In St. Mary's
Honor, the United States Supreme Court clarified the court's role at the pretext stage:
              [Once t]he defendant's "production" (whatever its persuasive
              effect) [has] been made, the trier of fact proceeds to decide the
              ultimate question: whether plaintiff has proved "that the
              defendant intentionally discriminated against [him]" because
              of his [age], Burdine, 450 U.S. 248, 253. The factfinder's
              disbelief of the reasons put forward by the defendant
              (particularly if disbelief is accompanied by a suspicion of
              mendacity) may, together with the elements of the prima facie
              case, suffice to show intentional discrimination. Thus, rejection
              of the defendant's proffered reasons will permit the trier of fact
              to infer the ultimate fact of intentional discrimination, and * * *
              upon such rejection, "no additional proof of discrimination is
              required," * * * (emphasis added). But the Court of Appeals'
              holding that rejection of the defendant's proffered reasons
No. 16AP-801                                                                         13


              compels judgment for the plaintiff disregards the fundamental
              principle of Rule 301 that a presumption does not shift the
              burden of proof, and ignores our repeated admonition that the
              Title VII plaintiff at all times bears the "ultimate burden of
              persuasion."

               ***

              But a reason cannot be proved to be "a pretext for
              discrimination" unless it is shown both that the reason was
              false, and that discrimination was the real reason.

(Emphasis sic.) Id. at 511, 515.
       {¶ 35} In Manzer, the federal court held:
              To make a submissible case on the credibility of his employer's
              explanation, the plaintiff is "required to show by a
              preponderance of the evidence either (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 discharge." McNabola v. Chicago
              Transit Authority, 10 F.3d 501, 513 (7th Cir.1993) (emphasis
              added and quotation marks omitted). The first type of showing
              is easily recognizable and consists of evidence that the
              proffered bases for the plaintiff's discharge never happened,
              i.e., that they are "factually false." [Baxter Healthcare v.
              Anderson, 13 F.3d 1120, 1123-24 (7th Cir.1994).] The third
              showing is also easily recognizable and, ordinarily, consists of
              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 the plaintiff. These two
              types of rebuttals are direct attacks on the credibility of the
              employee's [sic] proffered motivation for firing plaintiff and, if
              shown, provide an evidentiary basis for what the Supreme
              Court has termed "a suspicion of mendacity." Hicks, 113 S.Ct.
              at 2749. As Hicks teaches, such a showing permits, but does not
              require, the factfinder to infer illegal discrimination from the
              plaintiff's prima facie case.

              The second showing, however, is of an entirely different ilk.
              There, the plaintiff admits the factual basis underlying the
              employer's proffered explanation and further admits that such
              conduct could motivate dismissal. The plaintiff's attack on the
              credibility of the proffered explanation is, instead, an indirect
              one. In such cases, the plaintiff attempts to indict the credibility
              of his employer's explanation by showing circumstances which
              tend to prove that an illegal motivation was more likely than
No. 16AP-801                                                                                                 14


                  that offered by the defendant. In other words, the plaintiff
                  argues that the sheer weight of the circumstantial evidence of
                  discrimination makes it "more likely than not" that the
                  employer's explanation is a pretext, or coverup.

(Emphasis sic.) Id. at 1084.
          {¶ 36} This court cited this holding from Manzer in Vossman and discussed therein
whether, pursuant to the third prong of Manzer, the trial court erred in granting summary
judgment to appellees.4 Now, however, appellants assert they were justified in continuing
to pursue the claim of age discrimination following Vossman's deposition under the second
prong of Manzer—that the proffered reasons did not actually motivate his discharge. As
noted above, under the second prong of Manzer, a plaintiff may admit the facts underlying
an employer's proffered explanation and concede that such conduct could motivate




4   In Vossman, at ¶ 28, we observed:

          Plaintiff contends defendants' reason was insufficient to motivate his discharge under the
          third prong of Manzer since similarly-situated employees received more favorable treatment
          despite engaging in the same conduct. To establish that defendants' legitimate,
          nondiscriminatory reason was insufficient, 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 the plaintiff." Id. at 1084.

We ultimately held, at ¶ 30:

          Plaintiff specifically claims that AirNet did not equally enforce a policy that investigations
          were to be confidential because other employees also discussed the investigation as it was
          ongoing, but were not terminated. However, AirNet did not claim to have a policy that
          investigations were to be confidential. Rather, Schaner and Miller instructed plaintiff to cease
          discussing the complaint because, by actively recruiting other employees to lobby on his
          behalf to management, he was disrupting the ongoing investigation into the truth of
          Blackburn's complaint. Although plaintiff notes that other pilots also discussed the
          investigation with one another, he does not contend that any of the alleged comparables were
          the subject of an ongoing investigation. Further, plaintiff stated he was unaware of any pilot
          who was asked to maintain confidentiality and then breached that agreement.
No. 16AP-801                                                                                                     15


discharge, yet still pursue the case by attacking the credibility of the employer's explanation.
Appellants point to several pieces of evidence to support this claim.5
        {¶ 37} First, appellants claim there was evidence that appellees changed their
explanation for terminating Vossman. Specifically, appellants point to: (1) appellees' initial
statements that Vossman was terminated pursuant to an official policy regarding
investigations, although there was no evidence of such policy and appellees later claimed
that Vossman was terminated for violating a verbal directive, and (2) appellees' statement
that Vossman was twice told to refrain from speaking about the investigation, although the
evidence reflected only one instance in which Vossman was verbally told to refrain from
discussions.
        {¶ 38} Appellants provided several evidentiary materials attached to their
objections to the magistrate's entitlement decision to support these contentions. In
response to an interrogatory seeking "each and every reason Plaintiff's employment with
AirNet was terminated, the factual basis for the reason(s), and identify all persons who
made that decision on behalf of AirNet," appellees responded:
                 Subject to and without waiving any objections, [appellees] state
                 that as a result of complaints relating to his unsafe flying
                 practices, [Vossman] was placed on paid leave while [AirNet]
                 investigated the allegations against him. These allegations, if
                 proven true through AirNet's investigation, warranted
                 disciplinary action up to and including discharge. Pursuant to
                 Company policy, AirNet requested [Vossman's] cooperation
                 with the investigation and specifically asked that [Vossman]
                 keep the fact of the investigation confidential on no less than
                 two occasions. Nonetheless, [Vossman] repeatedly breached
                 this confidentiality by openly discussing the ongoing
                 investigation. [Vossman's] efforts made it impossible for
                 AirNet to properly investigate the complaints made against
                 [Vossman]. In addition, [Vossman's] efforts caused other
                 AirNet employees to suffer retaliation. As a result, [Vossman]

5 We note that appellants raise several additional arguments, which we do not discuss in detail in the body of

this decision, including: (1) other senior pilots were no longer employed by AirNet within months following
Vossman's termination, AirNet previously tried to get Vossman to retire, and that AirNet had a history of
seeking to terminate older employees, (2) Schaner notified other employees by e-mail, instructing them to
refrain from discussing the matter, and some of those employees, who were substantially younger than
Vossman, violated this directive but were not terminated or otherwise disciplined, (3) appellees made several
untrue representations to the trial court, including that "Bill Ronk did not know about the investigation of
Vossman until after Miller told Vossman not to discuss it, when an e-mail produced in discovery showed
otherwise," (4) AirNet changed its story regarding who among its senior staff was involved in the decision to
terminate Vossman, and (5) AirNet moved its base to St. Louis in order to terminate two older pilots. (See
Appellants' Brief at 19-20, 24, and 29 and Appellants' Reply Brief at 7-8.) As it is not necessary for us to analyze
these contentions in order to reach our determination, we decline to address them.
No. 16AP-801                                                                          16


                was terminated. Quinn Hamon, Kim Miller and Thomas
                Schaner were involved in the decision to terminate [Vossman].
                Amy Blackburn, Mike Troy, and Keith McGeorge presented
                complaints to AirNet regarding [Vossman] failure to comply
                with AirNet's policies and procedures. Further answering, see
                documents produced herewith.
(Emphasis added.) (Appellants' Objs. to Mag.'s Entitlement Determination, Ex. E at 4-5.)
Appellants also pointed to a personnel action form purportedly authored by Schaner, which
stated:
                During the course of the investigation, Dan spoke to
                individuals not directly associated with the investigating team.
                His actions compromised the investigation, may have
                subjected other parties associated with the investigation to
                attempts of retribution and his sharing of information was
                indirect [sic] violation of company policy. The policy states
                that such violations are grounds for termination of
                employment. Consistent with the stated policy Dan's
                employment with AirNet was terminated.
(Emphasis added.) (Appellants' Objs. to Mag.'s Entitlement Determination, Ex. D.)
          {¶ 39} In their motion for summary judgment, appellees made no mention of a
policy or multiple directives but, instead, stated that "[Vossman] admits that AirNet
directed him to maintain the confidentiality of the investigation" and that "[Vossman]
admits that he knowingly violated the directive." (Emphasis added.) (Mot. for Sum. Jgmt.
at 12-13.) Schaner, in his affidavit filed in support of the motion for summary judgment,
made no mention of the discussion being in violation of company policy or that Vossman
violated more than one directive to maintain confidentiality:
                Unfortunately, [Vossman] did not permit me to continue the
                investigation. [Vossman] e-mailed, phoned and texted various
                AirNet pilots and solicited generic statements on his behalf.
                These solicitations were particularly harmful to the
                investigation because [Vossman] advised the potential
                witnesses of the complaint and underlying issues.
                At my request, Ms. Miller contacted [Vossman] on Friday,
                March 12, 2011, to instruct him to discontinue all discussions
                with AirNet employees regarding the investigation, the
                allegations made against him, or his response to the
                allegations.
                Despite this instruction, I learned from two AirNet pilots, Keith
                McGeorge and Bill Ronk, that [Vossman] contacted them to
                discuss the ongoing investigation after [Vossman] spoke with
                Ms. Miller on March 12, 2011.
No. 16AP-801                                                                              17


              As a result of Mr. Vossman's complete disregard of a Company
              directive, which hindered the Company's ability to conduct an
              investigation, * * * I decided to terminate [Vossman's]
              employment.
(Emphasis added.) (Mot. for Sum. Jgmt. Ex. A at 4-5.)
       {¶ 40} In support of their argument that this evidence demonstrated Vossman's
claim was warranted under existing law, appellants cited to several cases arguing the
shifting explanations by appellees raised an inference of mendacity. (See Appellants' Brief
at 22, quoting Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir.1996);
Edwards v. United States Postal Serv., 909 F.2d 320, 324 (8th Cir.1990); and Schmitz v.
St. Regis Paper Co., 811 F.2d 131, 132 (2d Cir.1987) ("An employer's changing rationale for
making an adverse employment decision can be evidence of pretext.").
       {¶ 41} Second, appellants point to evidence they contend calls into question
whether appellees' stated reason for terminating Vossman was the actual reason for his
termination. Appellants attached to their objections to the magistrate's entitlement
decision a copy of an e-mail exchange between Schaner and Miller. With respect to an e-
mail he received from an AirNet employee in support of Vossman, Schaner wrote to Miller:
"In addition to this little beauty I have also taken a call from [two other AirNet employees]
on this topic. This is lining up as a 'damned if we do, damned if we don't' scenario for us
quickly." (Appellants' Objs. to Mag.'s Entitlement Determination, Ex. G.) Miller replied:
"Before I left I asked Quinn to make sure that he knows that he cannot retaliate against any
pilot or talk to anyone about this. Did he tell [D]an that? I'm assuming these people know
because Dan told them? Totally inappropriate of Dan and the others commenting."
(Appellants' Objs to Mag.'s Entitlement Determination, Ex. G.)
       {¶ 42} Although appellants, in the course of their representation, did not present
these evidentiary materials in response to the motion for summary judgment, they did
impliedly raise the issue of whether the stated reason actually motivated the challenged
employment action. In the memorandum in opposition to the motion for summary
judgment, Vossman made the following argument:
              In this case, a co-worker complained about [Vossman's] safety
              on two flights and accused him of violating FAA regulations
              and company policies. [Vossman] knew that he did not do
              what he was being accused of doing. [Vossman] was placed on
              leave and told an investigation would be conducted. Initially,
              [Vossman] was not told the investigation was confidential, so
No. 16AP-801                                                                       18


               he spoke to other long-term employees who had flown with him
               many times over the years about the allegations. When
               [appellees] began receiving letters of support from
               [Vossman's] co-workers, [appellees] told [Vossman] not to
               communicate with anyone during the investigation. Knowing
               the allegations could not be proven with objective evidence,
               [appellees] then terminated [Vossman's] employment for
               speaking to his co-workers during the investigation.
(Emphasis added.) (Vossman's Memo. in Opp. to Mot. for Sum. Jgmt. at 12.)
       {¶ 43} Appellants further support their argument with the affidavits of three
experienced employment lawyers, Vossman's lawyer Kelm, Attorney Tobias, and Attorney
Gittes, who averred that no competent employment lawyer would have dismissed this case
after Vossman's deposition. Attorney Tobias averred that:
               Based on [his 35 years of] experience [practicing employee-side
               employment law], frequently there is evidence and testimony
               concerning discrimination from sources other than the plaintiff
               victim of discrimination, both direct and circumstantial
               evidence and evidence of pretext, which if believed warrants a
               finding of discrimination.

               ***

               In this case where the plaintiff established a prima facie case
               and presented substantial evidence of pretext in the reason
               given for discharge, no competent employment attorney would
               abandon his client and dismiss the case after the plaintiff
               testified that he knew of no direct evidence of age
               discrimination and that the employer was justified in
               investigating allegations of unsafe flying, particularly when
               substantial discovery was yet to be conducted.

(Tobias Aff. at ¶ 6, 9.)
       {¶ 44} Attorney Gittes averred:
               With some exceptions, in employment discrimination cases, it
               is unusual for a plaintiff's deposition testimony to provide
               outcome-determinative discovery information. Most employee
               plaintiffs do not have nearly as much information (either
               documents or admissible testimony) about the employer's
               motivation for the challenged employment decision. The
               discovery process, in employment litigation, is typically an
               opportunity for the plaintiff employee to obtain documents and
               testimony from the defendant employer's managers and
               employees (such as internal emails and memos, personnel file
               information about the plaintiff and comparator employees,
No. 16AP-801                                                                                                19


                 information about past disciplinary actions, investigations, or
                 instances of potential discrimination, and the decision-makers'
                 explanations for their actions, along with their reaction to
                 contradictory evidence). Whether a case develops to the point
                 that the plaintiff's case can survive summary judgment and
                 proceed to a jury trial depends largely on what records the
                 employer produces, whether the employer's decision-making
                 was documented in potentially damaging emails and memos,
                 whether other employees were treated equally under similar
                 circumstances, and whether the employer "gets it story
                 straight" and avoids inconsistencies in key managers'
                 testimony. The plaintiff employee's testimony generally has
                 little impact on any of these areas.

(Gittes Aff. at ¶ 10.) Gittes further pointed the court to the second factor of Manzer and
reiterated much of the evidence appellants pointed to as well as evidence suggesting that
appellees attempted to suppress positive information about Vossman while collecting
negative information.         Finally, in reference to another experienced employment law
attorney, appellants point to the fact that David Campbell, AirNet's counsel, conceded that
appellants did not take too many depositions, but he thought they should have taken two
more, or six in total.
        {¶ 45} Appellees did not address Manzer in their brief before this court; rather, as
noted above, they relied on Vossman's own testimony in support of its argument that the
trial court should be affirmed. Nor did the magistrate or the trial court6 address the law of
Manzer in its entitlement determination.
        {¶ 46} Although appellants, prior to summary judgment, may not have artfully or
fully pursued Vossman's claim in light of existing law, based on the foregoing evidence in
the record and under the law of St. Mary's Honor and Manzer, we cannot find that "no
reasonable lawyer would have brought the action in light of the existing law." Stafford at
¶ 6. Therefore, we find the trial court erred in awarding sanctions based on a finding that
appellants' claims were not warranted under existing law, could not have been supported
by a good-faith argument for an extension, modification, or reversal of existing law, or could




6 Our review of the record does not reveal that appellants raised Manzer in briefing or objections filed before

the trial court. However, Attorney Gittes discussed Manzer, in particular the second prong of Manzer, in his
affidavit which was submitted to the trial court as an attachment to appellants' objections to the magistrate's
decision. In its entitlement determination, the trial court acknowledged the submission of affidavits of
Attorneys Gittes and Tobias. Accordingly, we determine it is appropriate to address the same.
No. 16AP-801                                                                                   20


not have been supported by a good-faith argument for the establishment of new law.
Accordingly, we sustain appellants' first assignment of error.
       B. Second and Third Assignments of Error
       {¶ 47} Having sustained appellants' first assignment of error, appellants' second
and third assignments of error are rendered moot.
IV. Conclusions of Law
       {¶ 48} Having sustained appellants' first assignment of error and rendered moot
appellants' second and third assignments of error, we reverse the judgment of the Franklin
County Court of Common Pleas. We remand for the trial court to vacate the judgment entry
of November 7, 2016, as well as the decisions of February 12, 2015 and October 19, 2016,
finding appellants' engaged in frivolous conduct and awarding attorney fees to appellees
for the same.
                                                                    Judgment reversed and
                                                           cause remanded with instructions.

                                    BROWN, P.J., concurs.
                                    HORTON, J., dissents.

HORTON, J., dissenting.
       {¶ 49} I respectfully dissent with the majority's finding any error in the trial court's
adoption of the magistrate's June 3, 2014 decision, which rejects appellants' objections. In
short, Vossman's own admission elicited from his deposition caused irreparable injury to
his case. Furthermore, in light of these facts, I do not believe that appellees or the trial court
and magistrate had any obligation to address the Manzer v. Diamond Shamrock Chems.
Co., 29 F.3d 1078 (6th Cir.1994), decision. The magistrate authored a well-reasoned
decision and addressed all necessary standards of law.
                                     _______________
