[Cite as Pearl v. Wyoming, 2013-Ohio-2723.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



MICHAEL PEARL,                                :        APPEAL NO. C-120563
                                                       TRIAL NO. A-1007237
MONICA MILLER,                                :
                                                            O P I N I O N.
   and                                        :

CATHY DETERS,                                 :

        Plaintiffs-Appellees,                 :

  vs.                                         :

CITY OF WYOMING,                              :

        Defendant,                            :

   and                                        :

ROBERT HARRISON,                              :

     Defendant-Appellant.                     :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 28, 2013


Freking & Betz, LLC, Randolph H. Freking and Brian Gillam, for Plaintiffs-
Appellees.

Subashi & Wildermuth, Nicholas E. Subashi and Tabitha Justice, and Strauss &
Troy and Franklin A. Klaine, for Defendant-Appellant,




Please note: this case has been removed from the accelerated calendar.
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D INKELACKER , Judge.

       {¶1}    In one assignment of error, defendant-appellant Robert Harrison

argues that the trial court improperly denied his request for immunity for the claims

made by plaintiffs-appellees Michael Pearl, Monica Miller, and Cathy Deters in the

litigation they filed relating to their employment with defendant City of Wyoming.

Having thoroughly reviewed the record, we agree.

                     Drinking at City Event Leads to Termination

       {¶2}    Pearl, Miller, and Deters were all employed by the City of Wyoming

on August 28, 2009. On that date, the city held a “Teen Splash Dance” for middle-

school children. Pearl, Miller, and Deters were at the event. Pearl was in charge of

the event, Miller worked at the front desk collecting tickets and money, and Deters

was the aquatic director, interacting with staff and patrons. The three consumed

alcohol while at the front desk during the event.

       {¶3}    A few days later, the incident was reported to Missy O’Brien, the

recreation director. O’Brien relayed this information to the assistant city manager,

who then told Robert Harrison, the Wyoming city manager. In order to conduct an

investigation, the city hired a Springfield Township police officer to ask questions of

the employees using voice-stress analysis. It was thought that such testing would

mitigate the “he-said-she-said” nature of the claims, and would provide outside

assistance in the difficult situation. All three employees came in for interviews and

to take the voice-stress tests. All three admitted to consuming alcohol at the party.

Another employee who was also drinking at the event was questioned, but chose to

resign immediately. She is not a part of this litigation.




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       {¶4}    The three employees were told to report to work the following

Tuesday. Pearl and Miller reported, Deters sent in a note stating that she was ill.

Harrison told Pearl and Miller individually that they had the option of resigning or

the city would terminate them. Harrison informed Deters by mail of the same

choice. Pearl and Miller chose to resign, Deters was fired.

       {¶5}    Pearl, Miller, and Deters then filed suit claiming that their

terminations were the result of unlawful discrimination. Miller and Deters claimed

that they were terminated because they are female, Pearl claimed that he was

terminated because he is a disabled African-American. The three filed suit against

the City of Wyoming, as well as against Harrison, both individually and in his official

capacity. After discovery, Harrison filed a motion for summary judgment claiming

that he was entitled to immunity under R.C. 2744.03. The trial court denied his

motion for summary judgment.

                  The Denial of Summary Judgment was Improper

       {¶6}    We review the grant or denial of summary judgment de novo,

applying the standards set forth in Civ.R. 56. See Grafton v. Ohio Edison Co., 77 Ohio

St.3d 102, 105, 671 N.E.2d 241 (1996). To obtain summary judgment, the movant

must demonstrate that (1) there is no genuine issue of material fact; (2) the movant

is entitled to judgment as a matter of law; (3) and it appears from the evidence that

reasonable minds can come to but one conclusion when viewing evidence in favor of

the nonmovant, and that conclusion is adverse to the nonmovant. Id.

       {¶7}    Under R.C. 2744.03(A)(6), an employee of a political subdivision is

entitled to immunity from liability for conduct in connection with a governmental or

proprietary function unless he was acting outside the scope of his employment, his

conduct was “malicious, in bad faith, or wanton or reckless,” or a specific statute


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imposes liability. In this case, the parties agree that the only exception at issue is

whether Harrison’s conduct falls within the class of malicious, bad faith, wanton, or

reckless behavior.

                     Maliciousness, Bad Faith, Wanton or Reckless
                                  Behavior Defined

       {¶8}    “Maliciousness” has been defined to mean “indulging or exercising

malice; harboring ill-will or enmity.” Teramano v. Teramano, 6 Ohio St.2d 117, 118,

216 N.E.2d 375 (1966). Furthermore, “malice” can be defined as the willful and

intentional design to do injury, or the intention or desire to harm another, usually

seriously, through conduct which is unlawful or unjustified. See Bush v. Kelley’s,

Inc., 18 Ohio St.2d 89, 247 N.E.2d 745 (1969); Jackson v. Butler Cty. Bd. of Cty.

Commrs., 76 Ohio App.3d 448, 453, 602 N.E.2d 363 (12th Dist.1991).

       {¶9}    “Bad faith” embraces more than bad judgment or negligence. It

indicates a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a

known duty through some ulterior motive or ill will partaking of the nature of fraud.

It also embraces actual intent to mislead or deceive another. See Slater v. Motorists

Mut. Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45, (1962), paragraph two of the syllabus.

       {¶10}   “Wanton” misconduct is such conduct as manifests a disposition to

perversity, and it must be under such surrounding circumstances and existing

conditions that the party doing the act or failing to act must be conscious, from his

knowledge of such surrounding circumstances and existing conditions, that his

conduct will in all common probability result in injury.        Anderson v. City of

Massillon 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266 ¶ 25, quoting

Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843 (1936),

paragraph two of the syllabus.


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       {¶11}   Finally, a person acts in a “reckless” manner if he does an act or

intentionally fails to do an act which it is his duty to do. The person must know or

have reason to know of facts which would lead a reasonable man to realize, not only

that his conduct creates an unreasonable risk of harm to another, but also that such

risk is substantially greater than that which is necessary to make his conduct

negligent.   Thompson v. McNeill, 53 Ohio St.3d 102, 104-105, 559 N.E.2d 705

(1990).

               Harrison’s Conduct Does Not Reach Actionable Level

       {¶12}   The former employees first argue that “Harrison’s decision to

terminate Appellees, when he did not similarly terminate employees outside of

Appellees’ protected classes * * * demonstrated his malicious intent to discriminate

against appellees.” But we find no such evidence.

       {¶13}   We note that, throughout their depositions, Pearl, Miller, and Deters

gave numerous examples of employees who were alleged to have consumed alcohol

in various workplace contexts—at the city bowling alley, at city ceremonies, at

softball games, and other events. But, for the vast majority of them, there was no

direct evidence that the incidents occurred. When asked how they knew about the

various incidents, they could only respond that they had heard about them “in the

community” and from other individuals, most of whom they could not name. Civ.R.

56(C) lists the types of evidentiary materials that a court may consider in rendering

summary judgment; these include “the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, filed in the action.” Absent an exception, hearsay may not

be considered in a motion for summary judgment. Johnson v. Southview Hosp., 2d

Dist. No,. 25049, 2012-Ohio-4974, ¶ 20, citing Knoth v. Prime Time Mking. Mgmt.,


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Inc., 2d Dist. No. 20021, 2004-Ohio-2426, ¶ 13. Therefore, we will not consider this

testimony as it is not competent.

       {¶14}   But even if there was competent evidence that the incidents occurred,

there was no evidence that Harrison or the city was informed of them. Without a

showing that Harrison or the city knew about these incidents and failed to act, they

cannot serve as proof of Harrison’s “malicious purpose.”

       {¶15}   In their brief, Pearl, Miller, and Deters list three incidents in which

individuals whom they claim to be similarly situated were treated differently. The

first involved a public works employee who had tested positive for marijuana use in

2006. The second was a 2009 incident where a city employee was seen drinking at

an event at the pool.     The third was an incident in 2010 in which day camp

counselors were found drinking at an end-of-the-season softball game.

       {¶16}   The Sixth Circuit has held that

       to be deemed ‘similarly situated’ in the disciplinary context, the

       individuals with whom the plaintiff seeks to compare his/her

       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 Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.1998). None

of the examples cited by Pearl, Miller, and Deters meet this test.

       {¶17}   The first incident involved a public works employee who, because he

held a commercial driver’s license, was required to submit to random drug testing.

After one such test in 2006—three years before the events in this case—he tested

positive for the presence of tetrahydrocannabinol (THC), a chemical left in the body


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after marijuana use. The employee was questioned, and he admitted marijuana use

at a party the previous weekend. There was no allegation that he had used marijuana

at work. There was no allegation that he was under the influence of marijuana at

work.   And the employee was subjected to discipline consistent with the city’s

controlled-substances and alcohol-use policy.

        {¶18}   The second incident involved another public works employee who

attended a private pool party and had consumed beer. But there was no evidence

that the employee was working or was in any way engaged in an area or acting in a

way in which it could be said that he was acting as an employee. Absent any evidence

that the employee was working or acting in some official capacity, the situation is not

comparable.

        {¶19}   The final incident involved seasonal day camp counselors. At the end

of the summer of 2010, the camp counselors had an end-of-season softball game.

During the game, some of the counselors were sneaking out to their cars and

drinking beer. When this was discovered, the event was ended and the counselors’

parents were called. But there was no showing that these individuals were members

of the same class as Pearl, Miller, and Deters. In fact, the only testimony on the point

was that the city did have African-American camp counselors. Also, these were

seasonal workers who were not working at the time of the event. Additionally, at

least one witness testified that none of those who participated in the conduct

returned to work the next season.

        {¶20}   Having considered the entire record, we conclude that there was no

evidence presented that indicated that Harrison acted with a malicious purpose.

This leaves only the question of whether Harrison acted in bad faith, or in a wanton

or reckless manner.


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       {¶21}   As with the question of malicious purpose, we conclude that there is

no competent evidence that Harrison acted in bad faith, as that term is defined under

Ohio law. In addition to the above conduct, Pearl and Miller had claimed that

Harrison had promised them that he would not disclose the circumstances of their

termination to prospective employers if they chose to quit rather than be fired. They

claim that he violated this promise, which would implicate the dishonesty portion of

the bad faith definition. We disagree.

       {¶22}   While media coverage of the incident was informed by records of the

incident from their personnel files, which were obtained through public records

requests, there was no evidence that Harrison breached the agreement. Both Pearl

and Miller testified about seeking employment, and neither could demonstrate that

any prospective employer knew about the incident. In fact, it was Pearl and Miller

who disclosed the incidents to them. Therefore, the former employees have made no

showing of bad faith on the part of Harrison.

       {¶23}   Finally, we consider whether Harrison acted in a wanton or reckless

manner.    During the investigation, multiple parties were involved. Several city

officials were present when the three were interviewed. Harrison hired an outside

consultant to provide a voice-stress analysis to ensure that the employees were not

disciplined based solely on hearsay.     Prior to his decision regarding the three,

Harrison consulted with Wyoming city council members and Wyoming’s general

counsel. The morning on which the termination decision was made, he discussed the

issue with the heads of all of the city’s departments, without telling them who was

involved. All the department heads indicated that, if these employees worked in

their departments, they would terminate them.        Considering these factors, we




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conclude that Harrison’s conduct during this episode did not rise to the level of

wanton or reckless.

                                      Conclusion

       {¶24}   In order to establish that Harrison was not entitled to immunity,

Pearl, Miller, and Deters had to show that he acted in a way that was malicious, in

bad faith, or wanton or reckless. They have failed to do so. Therefore, Harrison was

entitled to immunity, and the trial court erred when it failed to so find. The trial

court’s decision is reversed, and this cause is remanded to the trial court with

instructions to grant Harrison’s motion for summary judgment.

                                                Judgment reversed and cause remanded.



HENDON, P.J., and DEWINE, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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