[Cite as Pearl v. Wyoming, 2013-Ohio-2723.] 

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 PlaintiffsAppellees. 

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. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

MICHAEL PEARL,

MONICA MILLER, 

 and 

CATHY DETERS, 

 Plaintiffs-Appellees, 

 vs. 

CITY OF WYOMING, 

 Defendant, 

 and 

ROBERT HARRISON, 

 Defendant-Appellant. 

:

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

APPEAL NO. C-120563 

TRIAL NO. A-1007237 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

 2

DINKELACKER, 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 middleschool 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. 
OHIO FIRST DISTRICT COURT OF APPEALS

 3

{¶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 
OHIO FIRST DISTRICT COURT OF APPEALS

 4

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. 
OHIO FIRST DISTRICT COURT OF APPEALS

 5

{¶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., 
OHIO FIRST DISTRICT COURT OF APPEALS

 6

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 
OHIO FIRST DISTRICT COURT OF APPEALS

 7

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. 
OHIO FIRST DISTRICT COURT OF APPEALS

 8

{¶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 
OHIO FIRST DISTRICT COURT OF APPEALS

 9

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.