[Cite as Kubala v. Smith,
2023-Ohio-991.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
KENNETH J. KUBALA, CASE NO. 2022-T-0094
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas
RANDY SMITH, et al.,
Trial Court No. 2021 CV 00651
Defendant-Appellant.
OPINION
Decided: March 27, 2023
Judgment: Affirmed
David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, OH 44483 (For Plaintiff-Appellee).
Jeffrey Stankunas and Molly R. Gwin, Isaac Wiles & Burkholder, LLC, Two Miranova
Place, Suite 700, Columbus, OH 43215 (For Defendant-Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Randy Smith, appeals the trial court’s denial of summary
judgment on the issue of his immunity in his individual capacity. We affirm.
{¶2} From October 2011 until May 2018, appellee, Kenneth J. Kubala, worked
as a safety manager for the Trumbull County Engineer’s Office, where Smith served as
the Trumbull County Engineer. Kubala resigned effective May 11, 2018.
{¶3} In 2021, Kubala filed a complaint pursuant to R.C. 4112.01 et seq. against
Smith and Trumbull County alleging that Smith created a sexually hostile work
environment.1 Kubala specifically maintained that Smith “willfully, wantonly, maliciously,
and in reckless disregard for Kubala’s rights” engaged in sexually hostile conduct. The
county and Smith answered the complaint, denying that Smith created a sexually hostile
work environment. As an affirmative defense, the county and Smith asserted that they
were entitled to immunity under R.C. Chapter 2744.
{¶4} Thereafter, the county and Smith moved for summary judgment, claiming
that they were entitled to judgment because (1) Kubala could not demonstrate that the
alleged harassment was based on sex; (2) Kubala could not demonstrate that the alleged
conduct was severe or pervasive; and (3) Smith in his individual capacity was immune
from Kubala’s claim pursuant to R.C. 2744.03(A)(6)(b).2 Kubala responded in opposition
to the motion, and the county and Smith filed a reply.
{¶5} Thereafter, the trial court issued an entry denying summary judgment on
the first and second bases set forth above, granting summary judgment to the county and
Smith in his official capacity, and denying summary judgment to Smith in his individual
1. Kubala originally filed a complaint in 2018, alleging that Smith created a sexually hostile work
environment and violated Kubala’s First Amendment rights to freedom of speech and association. Kubala
v. Smith, N.D.Ohio No. 4:18CV1988, 2019 WL 7282096, *1-2 (Dec. 27, 2019), aff'd in part, vacated in part,
984 F.3d 1132. The case was removed to federal court. Id. at *2. The federal district court granted
summary judgment to the county and Smith, and Kubala appealed. Id. at *9; Kubala v. Smith,
984 F.3d
1132, 1135 (6th Cir.2021) (“Kubala II”). On appeal, the Sixth Circuit affirmed summary judgment with
respect to Kubala’s First Amendment claim but determined that the sexual harassment claim shared no
common nucleus of fact with the First Amendment claim, depriving the district court of subject matter
jurisdiction over the sexual harassment claim. Kubala II at 1135. The Sixth District therefore vacated the
district court’s judgment on the sexual harassment claim and directed the district court to dismiss that claim
without prejudice.
Id. at 1142.
2. Any potential issues regarding the propriety, finality, and appealability of the trial court’s grant of summary
judgment on the issue of immunity to the county and Smith, in his official capacity, are beyond the scope
of this appeal. See Zoldan v. Lordstown, 11th Dist. Trumbull No. 2014-T-0002,
2014-Ohio-3007, ¶ 10
(cross-appeal of the grant of summary judgment to village on its claim of immunity not final order where
claims against individual named in the complaint were pending, and the judgment entry ruling on summary
judgment did not contain Civ.R. 54(B) language).
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capacity. The trial court determined that questions of fact existed as to whether immunity
pursuant to R.C. 2744.03(A)(6) was available to Smith.
{¶6} In his two assigned errors, Smith contends:
[1.] The trial Court erred as a matter of law by denying
Defendant-Appellant Randy Smith immunity in his individual
capacity under R.C. § 2744.03(A)(6) by determining that a
genuine issue of material fact existed as to whether he was
acting manifestly outside the scope of his employment.
[2.] The Trial Court erred as a matter of law by denying
Defendant-Appellant Randy Smith immunity in his individual
capacity under R.C. § 2744.03(A)(6) by determining that a
genuine issue of material fact existed as to whether he was
acting with malicious purpose, in bad faith, or in a wanton or
reckless manner.
{¶7} In Smith’s assigned errors, he argues that the trial court erred in denying
him summary judgment on the issue of immunity in his individual capacity.
{¶8} Initially, we note that “[g]enerally, the denial of summary judgment is not a
final, appealable order.” Ruckman v. Smith, 2022-Ohio-1813,
190 N.E.3d 707, ¶ 9 (11th
Dist.), citing Hubbell v. Xenia,
115 Ohio St.3d 77,
2007-Ohio-4839,
873 N.E.2d 878, ¶ 9.
“However, the Supreme Court of Ohio has held that ‘[w]hen a trial court denies a motion
in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744,
that order denies the benefit of an alleged immunity and is therefore a final, appealable
order pursuant to R.C. 2744.02(C).’”
Ruckman at ¶ 9, quoting Hubbell at syllabus.
“Appellate review under R.C. 2744.02(C) is limited to the review of alleged errors that
involve the denial of the benefit of an alleged immunity from liability.”
Ruckman at ¶ 9,
citing Doe 1 v. Licate, 11th Dist. Ashtabula Nos. 2018-A-0019, 2018-A-0020, 2019-Ohio-
412, ¶ 28.
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{¶9} We review decisions denying summary judgment on the issue of immunity
de novo, “i.e., independently and without deference to the trial court’s decision.” Hedrick
v. Szep, 11th Dist. Geauga No. 2020-G-0272, 2021-Ohio-1851, ¶ 13, citing Grafton v.
Ohio Edison Co.,
77 Ohio St.3d 102, 105,
671 N.E.2d 241 (1996);
Ruckman at ¶ 10.
Civ.R. 56(C) specifically provides that before summary
judgment may be granted, it must be determined that: (1) No
genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law;
and (3) it appears from the evidence that reasonable minds
can come to but 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.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327,
364 N.E.2d 267 (1977); Allen v.
5125 Peno, LLC,
2017-Ohio-8941,
101 N.E.3d 484, ¶ 6 (11th Dist.), citing Holliman v.
Allstate Ins. Co.,
86 Ohio St.3d 414, 415,
715 N.E.2d 532 (1999). “The initial burden is
on the moving party to set forth specific facts demonstrating that no issue of material fact
exists, and the moving party is entitled to judgment as a matter of law.”
Allen at ¶ 6, citing
Dresher v. Burt,
75 Ohio St.3d 280, 292-293,
662 N.E.2d 264 (1996). “If the movant
meets this burden, the burden shifts to the nonmoving party to establish that a genuine
issue of material fact exists for trial.”
Allen at ¶ 6, citing
Dresher at 293. “[T]he purpose
of summary judgment is ‘not to try issues of fact, but rather to determine whether triable
issues of fact exist.’” Smathers v. Glass, --- Ohio St.3d ----,
2022-Ohio-4595, --- N.E.3d -
---, ¶ 3 (Dec. 22, 2022), quoting Viock v. Stowe-Woodward Co.,
13 Ohio App.3d 7, 15,
467 N.E.2d 1378 (6th Dist.1983). Therefore, a court making an immunity determination
at the summary judgment stage of proceedings ”must look at the evidence and determine
whether it is so one-sided that the party claiming immunity should prevail as a matter of
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law.” Smathers at ¶ 3, citing Turner v. Turner,
67 Ohio St.3d 337, 340,
617 N.E.2d 1123
(1993).
{¶10} With respect to Smith’s claim of immunity, Smith holds the office of the
Trumbull County Engineer. “[O]fficeholders are employees of political subdivisions” when
sued in their individual, as opposed to their official, capacities. Lambert v. Clancy, 125
Ohio St.3d 231,
2010-Ohio-1483,
927 N.E.2d 585, ¶ 21, quoting R.C. 2744.01(B) (“the
term ‘employee’ ‘includes any elected or appointed official of a political subdivision’”);
Kravetz v. Streetsboro Bd. of Edn., 11th Dist. Portage No. 2011-P-0025,
2012-Ohio-1455,
¶ 22.3 Because the trial court denied summary judgment to Smith on the issue of
immunity in his individual capacity, the issues on appeal pertain to political-subdivision-
employee immunity. Pursuant to R.C. 2744.03(A)(6), in a civil action, an employee of a
political subdivision is immune from liability unless one of the following applies:
(a) The employee’s acts or omissions were manifestly outside
the scope of the employee’s employment or official
responsibilities;
(b) The employee’s acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by
a section of the Revised Code. Civil liability shall not be
construed to exist under another section of the Revised Code
merely because that section imposes a responsibility or
mandatory duty upon an employee, because that section
provides for a criminal penalty, because of a general
authorization in that section that an employee may sue and
be sued, or because the section uses the term “shall” in a
provision pertaining to an employee.
3. Where “allegations are directed against the holder of an office in his official capacity, it is the equivalent
of suing the political subdivision itself[,]” and immunity is reviewed through the three-tier analysis applicable
to political subdivision immunity under R.C. 2744.02. (Emphasis added.) Thompson v. Buckeye Joint
Vocational Sch. Dist., 2016-Ohio-2804,
55 N.E.3d 1, ¶ 39 (5th Dist.), citing Lambert.
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{¶11} Here, the court denied summary judgment on the issue of Smith’s immunity
in his individual capacity, finding that genuine questions of fact remained relative to the
first two of these exemptions to immunity. With respect to the first exemption, “R.C.
Chapter 2744 does not define what conduct is ‘manifestly outside the scope of the
employee’s employment or official responsibilities.’” Thomas v. Bauschlinger, 9th Dist.
Summit No. 27240, 2015-Ohio-281, ¶ 25, quoting R.C. 2744.03(A)(6)(a). “However, Ohio
courts have generally held that ‘“‘conduct is within the scope of employment if it is initiated,
in part, to further or promote the master’s business.’”’”
Thomas at ¶ 25, quoting Curry v.
Blanchester, 12th Dist. Clinton Nos. CA2009-08-010, CA2009-08-012,
2010-Ohio-3368,
¶ 30, quoting Jackson v. McDonald,
144 Ohio App.3d 301, 307,
760 N.E.2d 24 (5th
Dist.2001). “‘For an act to fall within the scope of employment, it must be “calculated to
facilitate or promote the business for which the [employee or agent] was employed.”’”
Thomas at ¶ 25, quoting Johnson v. Godsey, 2d Dist. Clark No. 2012 CA 80, 2013-Ohio-
3277, ¶ 32, quoting Osborne v. Lyles,
63 Ohio St.3d 326, 329,
587 N.E.2d 825 (1992).
“‘In general, if an act is committed within the scope of employment, it will be authorized,
either expressly or impliedly, by the employer.’”
Thomas at ¶ 25, quoting Johnson at ¶
32. “‘“It is only where the acts of [public] employees are motivated by actual malice or
other [situations] giving rise to punitive damages that their conduct may be outside the
scope of their … employment.”’”
Thomas at ¶ 25, quoting
Curry at ¶ 30, quoting
Jackson
at 307. “‘The act must be so divergent that it severs the employer-employee relationship.’”
Thomas at ¶ 25, quoting Wee Care Child Ctr., Inc. v. Ohio Dept. of Job & Family Servs.,
10th Dist. Franklin No. 13AP-1004,
2014-Ohio-2913, ¶ 28.
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{¶12} In the similar context of immunity for state employees, R.C. 9.86 provides
exemptions from immunity akin to those contained in R.C. 2744.03(A)(6)(a) and (b), which
are applicable to political-subdivision employees. See R.C. 9.86 (“… no officer or
employee shall be liable in any civil action that arises under the law of this state for
damage or injury caused in the performance of his duties, unless the officer’s or
employee’s actions were manifestly outside the scope of his employment or official
responsibilities, or unless the officer or employee acted with malicious purpose, in bad
faith, or in a wanton or reckless manner.” (Emphasis added.)). With respect to R.C. 9.86,
in addressing whether an employee acted manifestly outside the scope of his
employment, the Tenth District has indicated that “‘an employer is not liable for
independent self-serving acts of his employees which in no way facilitate or promote his
business.’” Oye v. Ohio State Univ., 10th Dist. Franklin No. 02AP-1362, 2003-Ohio-5944,
¶ 7, quoting Byrd v. Faber,
57 Ohio St.3d 56, 59,
565 N.E.2d 584 (1991). “Implicit in this
statement is that such self-serving acts are not within an employee’s scope of
employment.”
Oye at ¶ 7. “Given this framework of analysis, [the Tenth District] [has]
interpret[ed] actions ‘manifestly outside the scope of his employment or official
responsibilities,’ as used in R.C. 9.86, to include actions that bear no relationship to the
conduct of the state’s business.”
Oye at ¶ 7, citing Hidey v. Ohio State Hwy. Patrol, 10th
Dist. Franklin No. 97API12-1587,
1998 WL 655277, *1 (Sept. 22, 1998). We likewise
conclude that a political-subdivision employee acts “manifestly outside the scope of his
employment or official responsibilities” when his actions bear no relationship to the
conduct of the political subdivision’s business for purposes of the first exemption to
immunity contained in R.C. 2744.03(A)(6)(a).
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{¶13} With respect to the second exemption to immunity contained in R.C.
2744.03(A)(6)(b), regarding acts committed with “malicious purpose, in bad faith, or in a
wanton or reckless manner,” these terms describe the following distinct types of conduct.
{¶14} “‘“Malicious” means “indulging or exercising malice; harboring ill will or
enmity.”’” Cook v. Hubbard Exempted Village Bd. of Edn., 116 Ohio App.3d 564, 569,
688 N.E.2d 1058 (11th Dist.1996), quoting Jackson v. Butler Cty. Bd. of Cty. Commrs.,
76 Ohio App.3d 448, 453,
602 N.E.2d 363 (12th Dist.1991), abrogated on other grounds
as stated in Anderson v. Massillon,
134 Ohio St.3d 380,
2012-Ohio-5711,
983 N.E.2d
266. “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.”
Cook at 1061, quoting Jackson at 453-454.
{¶15} “‘“[B]ad faith, although not susceptible of concrete definition, embraces
more than bad judgment or negligence. It imports 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.”’” Cook at 1061-1062, quoting Jackson at 453-454, quoting Slater v. Motorists
Mut. Ins. Co.,
174 Ohio St. 148,
187 N.E.2d 45 (1962), paragraph two of syllabus.
{¶16} “Wanton misconduct is ‘the failure to exercise any care toward those to
whom a duty of care is owed in circumstances in which there is great probability that harm
will result.’” Smathers, 2022-Ohio-4595, at ¶ 33, quoting
Anderson at ¶ 33.
{¶17} “Reckless conduct” connotes the “‘conscious disregard of or indifference to
a known or obvious risk of harm to another that is unreasonable under the circumstances
and is substantially greater than negligent conduct.’” Smathers at ¶ 33, quoting Anderson
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at ¶ 34, and citing O'Toole v. Denihan, 118 Ohio St.3d 374,
2008-Ohio-2574,
889 N.E.2d
505, ¶ 73 (referring to recklessness as a “perverse disregard of a known risk”).
{¶18} Here, Kubala alleged in his complaint that Smith engaged in sexually hostile
acts toward Kubala “that occurred continuously from in or about 2015 through May 11,
2018[,]” which included, but were not limited to:
a. Smith asked Kubala whether Kubala was a homosexual;
b. On multiple occasions, Smith asked Kubala to remove his
shirt in his office in the presence of others including Herb
Leukart, who was present for the majority of Smith’s sexually
hostile comments and interactions with Kubala;
c. Smith encouraged Kubala to come and visit Smith’s renter,
“Richard,” who Smith told Kubala was waiting for Kubala while
lying on a bear skin rug;
d. Smith, in a “creepy” way, without letting Kubala know if
Smith was or was not joking or being serious, told Kubala that
Smith’s wife, Angela, was away at a union conference, and
asked Kubala to come over to keep him from being “scared;”
e. Smith asked if Kubala had ever seen a male elected
Trumbull official nude;
f. Smith, at a meeting, encouraged Kubala to place his
“wiener” in the ear of another high-ranking employee of the
Office of the Trumbull County Engineer who appeared to be
sleeping;
g. Smith, on hundreds of occasions throughout the period that
began in or about 2015 and extended until May 11, 2018
would lick the top of his Diet Pepsi can in a sexually
suggestive way while looking directly at Kubala;
h. Smith suggested that Kubala ride in a truck with the road
superintendent while Kubala was holding the road
superintendent’s “wiener;”
i. Smith asked to see Kubala’s hands and said “You have nice,
soft hands.” Smith made the same request three months
later, and when Kubala refused, Smith grabbed Kubala’s
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hands. Smith’s comments about Kubala’s hands had a
distinct sexual connotation;
j. While at lunch at the Buena Vista Café with Kubala, the
hostess asked Smith and Kubala how they were doing and
Smith replied “We’re trying to find Kubala a boyfriend or
girlfriend; anyone will do.”;
k. On multiple occasions at other dining establishments with
Kubala present, Smith made gratuitous comments to
restaurant employees which comments demonstrated Smith’s
presumption regarding Kubala’s sexual orientation and
Kubala’s sexual preference; and
l. On one occasion, Smith saw Kubala sitting outside the
Starbucks at the Eastwood Mall with a female friend and said
“Good to see you with a girl.”
{¶19} In his deposition, Kubala testified as to the above incidents, and he
maintained that, although the complaint alleged that Smith suggestively licked a soda can
in front of Kubala “on hundreds of occasions,” this conduct had occurred about 10-20
times. Kubala further testified as to other of Smith’s actions/comments including: Smith
referring to Kubala as a “delicate flower” at restaurants approximately 6-8 times; Smith
telling Kubala that having boyfriends does not make someone homosexual; Smith
describing certain individuals involved in previous litigation as people who “want to pull
your pants down, stick it in your ass, and break it off” and “cut your balls off[,]”; Smith
stating to another employee of the Engineer’s Office that he had ”caught” Kubala, which
Kubala interpreted as a claim to have caught Kubala masturbating; Smith asking Kubala
if he was homosexual; Smith commenting to Kubala that they should go to the drive-in to
drink wine and eat a food basket that they had won at a raffle. Kubala maintained several
times that he told Smith that he did not “want to hear” these comments.
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{¶20} In the motion for summary judgment, Smith maintained that, in his individual
capacity, he was immune from Kubala’s claims under R.C. 2744.03(A)(6)(b). In support,
Smith contended that Kubala had no evidence that Smith’s comments/conduct were
made with malicious purpose, in bad faith, or in a wanton or reckless manner. Smith
relied on Kubala’s deposition testimony wherein he admitted to never complaining about
Smith’s actions and never requested Smith to stop making the alleged remarks, but
instead only stated, “I don’t like to hear that kind of stuff.” Smith did not address R.C.
2744.03(A)(6)(a), exempting from immunity an “employee’s acts or omissions [that] were
manifestly outside the scope of the employee’s employment or official responsibilities[.]”
{¶21} Kubala responded to the motion for summary judgment with regard to
immunity by first addressing the exemption from immunity pursuant to R.C.
2744.03(A)(6)(a), which he referenced that Smith had failed to address. Kubala
maintained that a reasonable juror could conclude that Smith’s actions were manifestly
outside the scope of employment because Smith’s actions did not further or promote the
interest of the county. With regard to the immunity exemptions under R.C.
2744.03(A)(6)(b), Kubala maintained that material questions of fact existed as to whether:
(1) Smith’s comments where willful, in that they deviated from the clear legal duty that
prohibits sexually harassing employees or engaging in conduct that creates a sexually
hostile work environment and knew, or should have known, that his conduct would injure
Kubala; (2) Smith acted in bad faith, in that he engaged in the conscious wrongdoing of
making sexually-related comments to Kubala in violation of Ohio’s anti-discrimination
laws; and (3) Smith acted with malice by continuing this conduct despite Kubala’s
repeated requests that he stop.
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{¶22} Kubala further maintained that the county’s and Smith’s motion for summary
judgment did not present the evidence in the light most favorable to Kubala. Nonetheless,
Kubala argued that even if the record were read as supporting Smith’s assertions that
Kubala failed to request Smith to stop his behavior and failed to lodge a formal complaint
against Smith, such actions were irrelevant in the context of the immunity exceptions
contained in R.C. 2744.03(A)(6)(a) and (b).
{¶23} In their reply, the county and Smith maintained that Kubala did not allege in
his complaint that Smith acted manifestly outside the scope of employment so as to be
exempt from immunity under R.C. 2744.03(A)(6)(a).4 However, the county and Smith
argued that, if Smith’s conduct was manifestly outside the scope of his employment, then
the claim of a hostile work environment against Smith in his individual capacity and the
county under R.C. 4112.02 necessarily fails.
{¶24} As set forth above, the trial court determined that questions of fact existed
as to whether Smith acted manifestly outside the scope of employment and whether he
acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
Accordingly, the court denied summary judgment to Smith in his individual capacity.
{¶25} On appeal, Smith initially maintains that the trial court mischaracterized the
standard applicable to R.C. 2744.03(A)(6)(a), necessitating reversal, by stating in its
decision that “[w]hether the Defendant, Randy Smith, was acting within the scope of his
employment is a question of fact to be decided by a jury.” (Emphasis added.) However,
4. The county and Smith did not advance an argument in the trial court, nor does Smith advance an
argument on appeal, that the issue of whether Smith was exempted from immunity under R.C.
2744.03(A)(6)(a) was not before the court for failure of the complaint to specifically allege that Smith acted
manifestly outside the scope of his employment. Our opinion should not be read to express any position
on this issue.
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the trial court’s statement is an accurate statement of the law in general as applied here.
See Townsend v. Kettering, 2022-Ohio-2710,
194 N.E.3d 457, ¶ 23 (2d Dist.) (“Whether
an employee acted within the scope of employment generally is a question of fact to be
decided by the jury.” (Citation omitted.)). Further, the court reasoned that “[i]t is difficult
to imagine how the conduct alleged by the Plaintiff could further or promote any interest
of the Engineer or of Trumbull County.” See Thomas,
2015-Ohio-281, at ¶ 25. These
are appropriate considerations in determining whether triable questions exist on the issue
of an employee acting manifestly outside the scope of employment for purposes of R.C.
2744.03(A)(6)(a). Accordingly, we do not read the trial court’s decision as
misunderstanding the applicable standards.
{¶26} Smith next argues that his alleged actions do not rise to the level of acting
“manifestly outside the scope” of his employment or official duties. In support, Smith
maintains that only two of Kubala’s allegations were purportedly made outside of the
workday, and “[t]he remaining allegations, however crude, are specifically related to
workplace discussion at the Engineer’s Office.”
{¶27} Implicit in Smith’s argument on appeal is an apparent concession that
certain specific instances of alleged conduct were not made as part of workplace
discussion. Regardless, although the place and time of the conduct may be relevant in
determining whether the conduct was manifestly outside the scope of employment, such
factors are not themselves determinative of whether the conduct promoted any interest
of the employer. See Thomas, 2015-Ohio-281, at ¶ 25 (conduct is manifestly outside
scope of employment if it is “so divergent that it severs the employer-employee
relationship”); see also Oye,
2003-Ohio-5944, at ¶ 7 (actions that bear no relationship to
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the conduct of the employer’s business are manifestly outside the scope of employment).
Unlike the allegations involved in cases cited by Smith, here there is no indication in the
record that Smith’s comments and conduct pertained to county business. See Curry v.
Blanchester, 12th Dist. Clinton Nos. CA2009-08-010, CA2009-08-012, 2010-Ohio-3368,
¶ 31 (where mayor made a derogatory and crude comment regarding employee’s
appearance and dress during discussion of employee’s pay raise, “it was not ‘manifestly’
outside the scope of [mayor’s] employment.”), Afjeh v. Ottawa Hills, 6th Dist. Lucas No.
L-14-1267,
2015-Ohio-3483, ¶ 5, 14 (village solicitor acted within scope of her
employment when, while attempting to clear building following completion of a village
meeting, she moved a resident in her wheelchair out of the only doorway to the meeting
room after resident refused to move); Cline v. Tecumseh Local Bd. of Edn., 2d Dist. Clark
No. 2020-CA-36,
2021-Ohio-1329, ¶ 2, 16 (where mother arranged for early release of
children from school into her care, but children were mistakenly released from school to
board bus, bus driver who returned children to school and then engaged in verbal
altercation with mother was acting within the scope of employment).
{¶28} Based on the foregoing, a material question of fact remains as to whether
Smith was acting manifestly outside the scope of his employment or official
responsibilities when engaging in the conduct and making the comments alleged by
Kubala. Accordingly, the trial court did not err in denying Smith’s motion for summary
judgment on the basis.
{¶29} Smith next argues that his alleged conduct and comments amount to
“simple teasing” and “offhand comments” occurring in isolated incidents over
approximately three years, which did not rise to the level of recklessness. Smith further
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argues that if a question exists as to whether he created a “risk of harm,” there is “at a
minimum, a close enough question that the knowledge of risk cannot safely be imputed
to Smith without some accompanying evidentiary basis.”
{¶30} However, “[i]n a summary judgment review, the court may not weigh the
proof or choose among reasonable inferences[.]” Coterel v. Reed, 2016-Ohio-7411,
72
N.E.3d 1159, ¶ 15 (2d Dist.). Further, our review does not pertain to whether there is
factual support for the underlying claim, as the “appeal is limited in scope to a
determination whether there are genuine issues of fact material to the defense for
statutory immunity.”
Id. “‘Consequently, in order to sustain a motion for summary
judgment predicated upon immunity bestowed by R.C. 2744.03(A)(6)(b), a court must
conclude that the record is devoid of evidence tending to show that the political
subdivision employee acted wantonly or recklessly.’”
Coterel at ¶ 15, quoting Irving v.
Austin,
138 Ohio App.3d 552, 556,
741 N.E.2d 931 (6th Dist.2000).
{¶31} Here, there exists summary judgment evidence from which it may be
reasonably inferred that Smith acted maliciously, in bad faith, or in a wanton or reckless
manner. Kubala maintained that Smith directed numerous comments and engaged in
behavior toward Kubala that was either inferentially or explicitly sexual in nature. Kubala
further maintained that he informed Smith that he did not want to hear these comments.
The record is not devoid of evidence, when viewed in the light most favorable to Kubala,
that Smith’s conduct and comments were made to intentionally cause harm, or, at
minimum, with “conscious disregard of or indifference to a known or obvious risk of harm
to another that is unreasonable under the circumstances and is substantially greater than
negligent conduct.”
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{¶32} Accordingly, the trial court did not err in denying summary judgment on the
issue of employee immunity on this basis.
{¶33} The judgment is affirmed.
JOHN J. EKLUND, P.J.,
MATT LYNCH, J.,
concur.
16
Case No. 2022-T-0094
