COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71168 JOHN C. WRIGHT, JR. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION PETROLEUM HELICOPTERS, INC., : ET AL. : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 18, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-292123 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: BARBARA KAYE BESSER (#0017624) BRUCE B. ELFVIN (#0015694) Elfvin & Besser 4070 Mayfield Road Cleveland, Ohio 44121 For Defendant-Appellee, Petroleum Helicopters, Inc.: BARTON A. BIXENSTINE (#0034130) GREGORY A. GORDILLO (#0063445) ULMER & BERNE LLP 900 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114 For Metrohealth Medical Center, William Fallon, M.D., Betty Kovach and Charlene Mancuso: ROBERT M. WOLFF (#0006845) PAUL A. MONAHAN (#0039337) DUVIN, CAHN & HUTTON 20th Floor - Erieview Tower 1301 East Ninth Street Cleveland, Ohio 44114-1886 - 2 - LEO M. SPELLACY, J.: Plaintiff-appellant, John C. Wright, Jr. ("appellant"), appeals the judgment of the trial court granting the motions for summary judgment of defendants-appellees Petroleum Helicopters, Inc., et al. ("PHI") and MetroHealth Medical Center, et al. ("MetroHealth"). Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, TO THE PREJUDICE OF PLAINTIFF IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS WHERE, (A) GENUINE ISSUES OF MATERIAL FACT WERE IN DISPUTE; AND (B) INFERENCES DRAWN FROM THE RECORD WERE NOT CONSTRUED IN THE LIGHT MOST FAVORABLE TO PLAINTIFF, THE NONMOVING PARTY. II. THE TRIAL COURT ERRED, AS A MATTER OF LAW, TO THE PREJUDICE OF PLAINTIFF BY APPLYING THE WRONG LEGAL STANDARD IN DETERMINING THE CAUSAL CONNECTION BETWEEN PLAINTIFF'S PROTECTED CONDUCT AND HIS TERMINATION. III. THE TRIAL COURT ERRED, AS A MATTER OF LAW, TO THE PREJUDICE OF PLAINTIFF BY APPLYING THE WRONG LEGAL STANDARD IN FINDING THAT THE REASONS ADVANCED BY DEFENDANTS FOR THEIR DISCHARGE OF PLAINTIFF WERE NOT PRETEXTUAL. IV. THE TRIAL COURT ERRED, AS A MATTER OF LAW, TO THE PREJUDICE OF PLAINTIFF IN HOLDING THAT METROHEALTH MEDICAL CENTER ENJOYED A PRIVILEGE TO REQUEST THAT PHI TERMINATE PLAINTIFF. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. - 3 - I. On July 11, 1995, appellant filed a five count complaint against Petroleum Helicopters, Inc., Wayne Thompson, MetroHealth Medical Center, William Fallon, Betty Kovach, and Charlene Mancuso. Count I of appellant's complaint alleges tortious interference against MetroHealth; count two of appellant's complaint alleges retaliatory discharge against PHI; counts III and IV of appellant's complaint allege breach of settlement agreement and promissory estoppel against PHI; and count V of appellant's complaint alleges defamation against defendants Wayne Thompson, Betty Kovach, and Charlene Mancuso. On April 19, 1996, PHI and MetroHealth filed separate motions for summary judgment. On April 23, 1996, PHI and Wayne Thompson filed a supplemental brief in support of its motion for summary judgment. The supplemental brief denied appellant's defamation claim against Wayne Thompson. On August 5, 1996, after considering PHI and Thompson's motion for summary judgment and supplemental brief in support of its motion, as well as the summary judgment motion of MetroHealth, Charlene Mancuso, Betty Kovach, and Dr. William Fallon, the trial court, in its Opinion and Order, granted the motions as to all parties and claims. II. Appellant was employed as a Life Flight helicopter pilot for PHI from September 1989 through April 6, 1995. A Life Flight is an air-lift medical service which transports patients in emergency - 4 - situations. Pursuant to a contract with MetroHealth, PHI provides helicopters and pilots to MetroHealth for its emergency airlift medical services. In 1991, appellant became engaged to a MetroHealth nurse, Martha Sabol, who was assigned to Life Flights. MetroHealth, however, had a nepotism policy which prohibited married couples from working together on Life Flights. On November 17, 1992, MetroHealth informed appellant and his wife that as a married couple in the same unit, they would be in violation of MetroHealth's nepotism policy and that one of them would have to transfer to another unit. On December 19, 1992, appellant married Martha Sabol. On December 20, 1992, MetroHealth requested that PHI transfer appellant from the Life Flight crew, and the next day, PHI informed appellant that he was being transferred to Louisiana. Appellant and his wife sued MetroHealth and PHI, alleging intentional infliction of emotional distress, the nepotism policy violated their constitutional rights, and MetroHealth had tortiously interfered with appellant's business relationship. United States District Court Judge John M. Manos found that MetroHealth's nepotism policy did not violate appellant and his wife's constitutional rights, and dismissed the stated claims. Appellant settled his remaining claims with PHI. Subsequently, appellant and his wife appealed Judge Manos' decision as to the claims against MetroHealth. The ruling was affirmed by the United - 5 - States Court of Appeals, Sixth Circuit, in Wright v. MetroHealth Medical Center, et al. (6th Cir. 1995), 58 F.3d 1130. On April 6, 1995, PHI discharged appellant. Appellant's discharge stemmed primarily from an incident which occurred at MetroHealth's Solon Life Flight base. An established procedure is utilized when an emergency arises and Life Flight is needed. Initially, MetroHealth issues a stand- by page. At this time, at least one of the pilots is to proceed to the aircraft to await further instructions. If a Life Flight is necessary, MetroHealth will then issue a "go" page. PHI's guideline for response time in "green conditions," when weather conditions are favorable, is six minutes from receipt of the "go" page until the helicopter is in the air. Response time in "yellow conditions", when the weather or aircraft status is such that a delay will be experienced, is twenty minutes from receipt of the "go" page. On March 16, 1995, appellant was on duty as Pilot in Command at MetroHealth's Solon base. Ernie Jones was Second in Command. At 5:50 p.m., a standby page was received from MetroHealth by appellant and Jones. At 5:55 p.m., appellant informed the MetroHealth dispatcher that they had accepted the flight. At approximately 6:02 p.m., a "go" page was issued, but the page was not received at the Solon base. At approximately 6:14 p.m., a dispatcher called the Solon base and gave Jones the "go" command. Jones told appellant and John Davis, who was going to replace him - 6 - on the flight, that the "go" page had been received. Appellant and Davis, however, did not take the flight. Rather, the nightshift pilots took the flight and lift off occurred at approximately 6:26 p.m., approximately twelve minutes after Jones received the call from the dispatcher and informed appellant of the "go" page. An investigation into the delay of the flight on March 16, 1995, was conducted by MetroHealth. Betty Kovach, Life Flight's chief nurse, spoke with Life Flight nurse Liz Patris who informed her that the medical crew, after receiving the stand-bye page, left for the aircraft and waited on the aircraft for what seemed like a long time. (Depo., Kovach, ex. 42). Further, Ms. Patris informed Betty Kovach that it was the night shift pilots who eventually came out and took the flight. (Depo., Kovach, ex. 42). Afte r determining the delay was not caused by the medical crew, Betty Kovach turned the investigation over to Wayne Thompson, base manager at PHI. Thompson, after investigating the delay and listening to the tapes of the incident, determined that appellant had accepted the flight at 5:55 p.m. on March 16, 1995; the "go" page was received at 6:14 p.m.; the flight did not depart until 6:26 p.m.; appellant was not at the aircraft at the time the "go" page was received per PHI policy; appellant was responsible for the excessive delay; and appellant's responsibility for the delay constituted serious misconduct and was severe enough to warrant termination. (Depo., Thompson, p.101). Thompson reported his findings to Pete Sorenson and recommended appellant be terminated - 7 - for substandard performance, lack of cooperation, and not meeting the criteria in PHI's local publication. (Depo., Thompson, p. 11). Appellant was terminated on April 6, 1995. Thompson's decision to recommend appellant be terminated only took into consideration the incident of the delayed flight which occurred at the Solon base on March 16, 1995. (Depo., Thompson, p. 101). However, another incident which occurred at MetroHealth's Lodi Life Flight base may have also been a contributing factor. (Opinion and Order, August 5, 1996). On February 24, 1995, appellant volunteered to work at MetroHealth's satellite facility in Lodi, Ohio. While there, appellant made strong derogatory remarks regarding the facility. Although appellant does not remember the words he used, he acknowledged that he said "I didn't want to be there or whatever. As far as the language, there is no excuse for language like that anyplace and I admitted that." (Depo., Wright, p. 38). The incident at the Lodi base was brought to the attention of Wayne Thompson. After having investigated the incident, Thompson issued appellant a letter of reprimand. (Depo., Thompson, p. 118). III. For purposes of this appeal, appellant's first, second and third assignments of error will be addressed together. Each assignment of error sets forth that the trial court abused its discretion in granting the summary judgment motions filed by PHI and MetroHealth. In particular, appellant contends that material - 8 - issues of fact exist and that the trial court applied the wrong legal standards when it determined that the public policy exception to the employment-at-will doctrine did not exist. The test for granting a motion for summary judgment is set forth in Civ.R. 56 and in numerous cases interpreting the rule. The law is clear that: Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Lovsin, et al. v. J.C. Penney Company, Inc., et al. (May 9, 1996), Cuyahoga App. No. 69520, unreported, citing to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. The non-movant has the burden to set forth facts for which it has the burden of production at trial. Wing v. Anchor Media (1991), 59 Ohio St.3d 100. In this case, appellant must meet his burden of proof that his discharge falls under an exception to the general rule that employment is presumably "at will" and can be terminated for any reason which is not contrary to law. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 103. The three exceptions to the general rule are: (1) an implied contract alters the employee-at-will relationship, Briner v. National City Bank (February 17, 1994), Cuyahoga App. No. 64610, unreported, p. 5, (2) the doctrine of promissory estoppel, Id., and (3) a public policy - 9 - exception to the employment-at-will doctrine. Greeley v. Miami Valley Maintenance Constrs., Inc. (1990), 49 Ohio St.3d 228. In the present case, appellant contends his discharge is actionable because it was in retaliation for his filing a prior lawsuit against MetroHealth and PHI. The plaintiff has the burden of proving a prima facie case of retaliatory discharge before the employer has to present any evidence that the adverse action against the employee was taken for a legitimate, nondiscriminatory reason. Briner, supra, citing Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248. Federal law provides the applicable analysis for reviewing retaliation claims. Chandler v. Empire Chem., Inc., (1994), 99 Ohio App.3d 396, 402. In order for appellant to support his claim for retaliatory discharge, he must prove: (1) that he engaged in a protected activity; (2) that he was the subject of adverse employment action; and (3) that there was a causal link between his protected activity and the adverse action of his employer. Cooper v. City of North Olmsted (6th Cir. 1986), 795 F.2d 1265, 1272. If and when appellant has established a prima facie case, the burden of production of evidence shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for its actions. Canitia v. Yellow Freight System, Inc. (6th Cir. 1990), 903 F.2d 1064, 1066, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The plaintiff, who bears the burden of persuasion throughout the entire process, then must demonstrate - 10 - "that the proffered reason was not the true reason for the employment decision." Yellow Freight System, Inc., supra, citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). In the case sub judice, the lower court found that appellant established the first two elements of his claim, but had failed to establish the causal connection between his nepotism lawsuit and his termination, stating: "[a]gain, there is no evidence of causation. Although Plaintiff submitted a great deal of evidence, the evidence fails to demonstrate that a causal relationship existed between the prior lawsuit and Plaintiff's discharge." (Opinion and Order, August 5, 1996). We must examine the timing of events, appellant's nepotism lawsuit, and appellant's disciplinary problems to determine whether he has established a prima facie case through use of circumstantial evidence or otherwise. Appellant's prior case was on appeal at the time he was terminated. However, evidence presented in the present case reveals that appellant, on March 16, 1995, caused the delay of a Life Flight at the Solon base and that appellant was disciplined on a separate occasion by PHI for an incident that occurred at the Lodi Life Flight base on February 24, 1995. Although appellant presented evidence of other delayed Life Flights to show disparate treatment, he failed to present evidence that the flight delays were due to pilot neglect or misconduct. Boththe Lodi incident - 11 - and the Solon incident were considered by PHI and MetroHealth to be very serious. And, although Wayne Thompson stated that his decision to recommend appellant be terminated was based solely on the delayed flight incident at the Solon base, he did not have the ultimate decision making authority. Thus, it appears after completely reviewing the record that the Lodi incident was also a contributing factor to appellant's final termination. As stated previously, appellant claims that he was terminated in retaliation for filing the prior lawsuit against MetroHealth and PHI. The record reveals that William Fallon, Director of the Division of Trauma, Critical Care, Burns and Metro Life Flight at MetroHealth, referred to appellant in a letter written to Carol Suggs, President and CEO of PHI, on March 19, 1995, as "the individual [who] is also part of the nepotism lawsuit at MetroHealth Medical Center." (Fallon letter to Carol Suggs, 3-19- 95). Although the letter did make reference to the nepotism lawsuit, it did not state PHI should fire appellant, but rather stated that MetroHealth would not tolerate less than 100% participation in the Life Flight program. Evidence was also presented that Charlene Mancuso, a MetroHealth employee, referred to appellant as "the enemy". Although both incidents show that MetroHealth employees were aware of the nepotism lawsuit brought by appellant, neither incident indicates that a causal relationship existed between the prior lawsuit and appellant's discharge. Furthermore, evidence was - 12 - presented that once MetroHealth determined that the delayed flight was not due to any action or inaction by its medical crew, it turned over the investigation to PHI, and PHI alone determined that the delayed flight was caused by appellant's misconduct. In light of the delayed flight at the Solon base, appellant was terminated. Thus, the trial court properly determined that appellant failed to establish a prima facie case of retaliatory discharge where appellant was unable to establish a causal connection between his termination and his prior lawsuit. Further, the trial court's conclusion that no issue of material fact existed regarding appellant's termination was also proper. Even assuming that appellant did make out a prima facie case of retaliatory treatment, which we have not found, PHI did supply ample evidence to meet its burden of establishing a legitimate reason for its termination of appellant. Appellant's further burden, then, was to produce direct, indirect or circumstantial evidence that his treatment was the result of retaliatory motive. Yellow Freight System, Inc., supra at 1067. "It is clear that merely making out a prima facie case does not automatically save appellant from a summary judgment motion. Indeed, the inference of discrimination created by the prima facie case is dispelled once the employer's reason is stated, until and unless the latter is shown to be a pretext." Id. A plaintiff in this type of case must establish that the decision complained about as retaliatory would not have been made - 13 - "but for" the protected status of the plaintiff. Id., citing Gutzwiller v. Fenik (6th Cir. 1988), 860 F.2d 1317, 1325. In view of the entire record at the time the trial court made its decision on the summary judgment motion, we can find no error in the trial court's conclusion that appellant has not met this standard. The evidence, and any reasonable inference to be drawn therefrom, relied upon by appellant is insufficiently probative to overcome PHI's and MetroHealth's substantial proof in support of summary judgment. Accordingly, appellant's first, second and third assignments of error are overruled. IV. In his fourth assignment of error, appellant contends the trial court erred in holding MetroHealth enjoyed a privilege to request PHI terminate appellant. Particularly, appellant asserts MetroHealth intentionally interfered with his contractual relationship with PHI. In the present case, MetroHealth contends that appellant's action against them is barred pursuant to the doctrine of res judicata, as the prior suit involved the same parties and issues. The trial court, however, found that appellant's discharge in April, 1995, was not, and could not have been adjudicated in the previous action. We agree. Further, although the prior lawsuit does not serve as a bar to the within action pursuant to the doctrine of res judicata, we find, as did the trial court, that it - 14 - does provide relevant law regarding MetroHealth's privilege with regard to communications with PHI. In Wright v. MetroHealth Medical Center (6th Cir. 1995), 58 F.3d 1130, the Sixth Circuit Court of Appeals held that: Under Ohio law, 'a cause of action for [tortious interference with business relations] is made out when * * * one who, without a privilege to do so, induces or otherwise purposely causes a third party not to enter into, or continue, a business relationship with another, or perform a contract with another * * * .' Smith v. Klein (1985), 23 Ohio App.3d 146, 148, quoting Juhasz v. Quik Shops, Inc. (1977), 55 Ohio App.2d 51, 57. Id. at 1139. "In Ohio, 'one is privileged to purposely cause another not to perform a contract with a third person where he in good faith is asserting a legally protected interest of his own, which he believes will be impaired or destroyed by the performance of the contract.'" Id.A privilege is determined by examining the following factors: a) the nature of the actor's conduct, b) the nature of the expectancy with which his conduct interferes, c) the relations between the parties, d) the interests sought to be advanced by the actor and e) the social interests in protecting the expectancy on the one hand and the actor's freedom of action on the other hand. Id. - 15 - In his prior lawsuit, appellant alleged that MetroHealth tortiously interfered with PHI's decision to transfer him to Louisiana. The court concluded that "MetroHealth was privileged to request that PHI transfer plaintiff * * * by virtue of its contract. Pursuant to this contract, PHI supplied pilots to MetroHealth for its Life Flight unit. Thus, MetroHealth had an interest in the employees that PHI provided MetroHealth." Id. In the present case, appellant contends that MetroHealth tortiously interfered in PHI's decision to terminate appellant. The record fails to provide this court with evidence which supports appellant's contention that MetroHealth played any role in PHI's decision to terminate appellant. However, even if such evidence existed, MetroHealth, by virtue of its contract with PHI, was privileged in its communications with PHI. Accordingly, appellant's fourth assignment of error is overruled. Judgment affirmed. - 16 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J. CONCURS; DIANE KARPINSKI, J. CONCURS AND DISSENTS (SEE CONCURRING AND DISSENTING OPINION ATTACHED) LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(B). See, also S.Ct.Prac.R. II, Section 2(A)(1). - 17 - COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71168 JOHN C. WRIGHT, JR. : : : CONCURRING Plaintiff-Appellant : : AND . : : DISSENTING PETROLEUM HELICOPTERS, INC., : ET AL. : OPINION : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 18, 1997 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I respectfully dissent from the majority opinion regarding retaliatory discharge against the employer-defendant Petroleum Helicopters, Inc., but concur with the remainder of the majority opinion. First, I disagree with the trial court's and majority's conclusion that plaintiff failed to establish a prima facie case for retaliatory discharge. The majority holds that plaintiff failed to establish a causal connection between the filing of plaintiff's nepotism lawsuit and his discharge. At the summary judgment stage, plaintiff was not required to establish a causal connectionbetween his discharge and the lawsuit. On the contrary, he was required to submit sufficient evidence to state merely a prima facie case. - 2 - The majority opinion states that plaintiff failed to establish a causal connection between the nepotism lawsuit and plaintiff's termination. I disagree. Such a connection can be established from the following facts: (1) plaintiff was discharged while the appeal of his nepotism lawsuit was pending, (2) in 1994, after the lawsuit was filed but before the Solon incident, a Life Flight administrator from Metrohealth referred to plaintiff as the enemy, and (3) plaintiff was fired less than a month after the Fallon memo, which, by describing him as the person who had filed the nepotism lawsuit, singled out his being engaged in a protected activity. If we review this evidence in a light favorable to plaintiff, it is fair to infer that MetroHealth's criticism of plaintiff was a factor in his termination and that MetroHealth's criticism is tainted by its reference to the nepotism lawsuit and its employee calling him the enemy. It is for a jury to decide whether the employer acquiesced to any improprieties in its client's criticism. See, generally, Oldham v. West (8th Cir. 1995), 47 F.3d 985. More importantly, proof of causal connection can be established by evidence of disparate treatment. Johnson v. Palma (2nd Cir. 1991), 931 F.2d 203, 207. As will be discussed infra, plaintiff presented substantial evidence that other pilots involved in delayed Life Flights were not disciplined or discharged. Albeit circumstantial, this evidence suffices to establish the first stage of a prima facie case. - 3 - Plaintiff must then show that the employer's proffered reasons were pretextual. This third stage 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. Manzer v. Diamond Shamrock Chemicals Co.(6thCir. 1994), 29 F.3d 1078, 1084. This process of analysis must be located within the standard required for motions for summary judgment. At this point, neither the trial court nor this court assesses the credibility of plaintiff's evidence. Oldham, supra at 989. Rather, assuming the evidence to be true, the court asks whether there is sufficient circumstantial evidence to permit a reasonable jury to conclude that the employer discharged plaintiff not for the reasons it proffered but in retaliation for having filed a civil rights suit in federal court. To satisfy the third stage, plaintiff provided evidence that (1) no other persons involved in the Solon delay were fired or even suspended and (2) other pilots involved in similar delays were not fired or suspended.1The majority answers, however, that plaintiff 1 The record provides six instances of Life Flight delays longer than the 11- to 13-minute delay for which plaintiff was terminated: October 26, 1994 -- 32-minute delay (organ harvest) January 7, 1995 -- 23-minute delay (cardiac) January 28, 1995 -- 30-minute delay (pediatric truama) March 20, 1995 -- 26-minute delay (adult trauma) April 30, 1995 -- 45-minute delay (overdose) April 31, 1995 -- 26-minute delay (respiratory distress) The event on October 26 resulted from pilots not being ready because of a shift change. The record does not include reviews of - 4 - failed to present evidence that the other flight delays were due to pilot neglect or misconduct. Plaintiff has no such burden, however, since the employer never showed any such evidence in the Solon delay. Indeed, there is nothing in the record to show the employer made even a cursory inquiry into most of the 17 other reported delays. Such disparate treatment would indicate, at least facially, the employer's reasons were pretextual. The Eighth Circuit Court of Appeals clearly states the standard to be employed, As we noted in [Crawford v. Runyon, (8th Cir. 1994), 37 F.3d 1338], discrimination cases are frequently not supported by direct evidence. Because plaintiffs must often rely on inferences and because courts should not grant summary judgment unless the evidence could not support any reasonable inference for the non-movant, we cautioned that summary judgment should seldom be used in employment-discrimination cases. 37 F.3d at 1341. Oldham, supra at 988. In the case at bar plaintiff's evidence supports a reasonable inference to establish a prima facie case of retaliatory discharge in order to overcome a motion for summary judgment. I do not agree with the majority's conclusion that even if a prima facie case had been established there was no genuine issue of material fact as to whether employer had a legitimate reason for terminating plaintiff. Under Dresher v. Burt (1995), 75 Ohio St.3d the other incidents. No one was discharged for any of these delays, five of which were twice as long as the Solon delay and one over three times longer. - 5 - 280, a defendant, as the moving party, has the initial burden to demonstrate there is no genuine issue of material fact by pointing to evidentiary materials in the record. The employer's failure to explain exactly why plaintiff was terminated fails to satisfy this burden. First, there appears to be no policy as to who is responsible for flight delays during crew changes. Thus it is a question for the jury whether the crew going off the shift or the crew coming on is responsible during a crew change. Second, it is not clear whether the pilot alone is responsible for any delays. The employer says Wright caused the delay. Ernie Jones, the second-in- command on the flight, however, states that the delay was not attributable to any one factor. The Life Flight quality improvement form, moreover, notes that paging system, lift-off times were the issues that needed to be addressed in response to the Solon incident. Third, the employer does not specify precisely how plaintiff caused the delay that allegedly resulted in his termination. Plaintiff denies he ever refused to fly and claims he acted properly in the Solon incident. Employer never states specifically what plaintiff did that caused the delay or how his action, or inaction, constituted misconduct or neglect. Employer's vagueness provides nothing definite to refute. Under Dresher, therefore, employer fails to meet its burden. - 6 - The employer's explanation for terminating plaintiff focuses not on what he did but on the magnitude of the delay. The Solon delay, however, was only 11-13 minutes. It is a question for the jury to decide whether he and he alone caused the delay and whether that delay was unreasonable, given the circumstances, and there must be an opportunity for those circumstances to be developed. The record shows six other comparable incidents, moreover, one in which there was a 32-minute delay by a pilot also on a Life Flight program but no one from this flight was terminated. It is a question for the jury to decide whether the situations of the other pilots were different and whether plaintiff was treated differently from the other pilots. Finally there is the question of whether plaintiff's behavior in the Lodi incident was a factor in his termination. Wright states the only reason he received was that he delayed a flight. Thompson's recommendation to fire plaintiff, moreover, was based solely on Solon. If the employer claims the Lodi incident was also a factor, then there is a factual conflict and another reason to send the case to a jury. There is sufficient evidence, at least circumstantially, that plaintiff's termination was based on a retaliatory motive. Moreover, there are many unanswered questions and discrepancies. Such unsettled evidence, viewed in a light favorable to the non- moving party, as we are required to view it, requires a jury, not .