U.S. Magistrate Judge Karen Litkovitz issued a 75-page recommendation 18 months ago, finding the claims against Gmoser and Ferguson should be dismissed and determining a jury should hear discrimination accusations against the judge. U.S. District Court Judge Michael Barrett agreed a year ago.
Edelstein got a job with the Wood County prosecutor’s office after Stephens fired her, but she lost that job. She said it was Gmoser’s fault because he talked to her new boss. Barrett didn’t see it that way.
“Plaintiff maintains that Gmoser has concealed the true nature of these conversations, or what was discussed in the conversations, however, as the magistrate judge explained, plaintiff cannot rely on speculation to support her claims…” Barrett wrote. “Moreover, the circumstances surrounding the conversations do not demonstrate the requisite intent on the part of Gmoser.”
Edelstein asked Barrett to reconsider his decision this week, but he denied the motion and closed the case against the prosecutor.
“Where the movant fails to introduce new evidence, and instead relies solely on facts and arguments that were in the record at the time the court issued its decision, the motion for reconsideration is improper,” Barrett wrote. “Plaintiff has not introduced any newly discovered evidence, and has not identified an intervening change in controlling law or a manifest injustice which will result if the Court’s ruling is left to stand.”
Ordinarily the entire case, including the claims against Stephens would have to be concluded before Edelstein could appeal. She asked Barrett to close out just the Gmoser part of the case and he agreed, in part because Edelstein explained “that Gmoser is of advanced age (mid-70′s), this matter has been ongoing for over three years, and an appeal could add several additional years to the litigation.”
Gmoser told the Journal-News the judge’s ruling denying reconsideration was “spot on.”
“I obviously was very pleased with the decision in all respects,” Gmoser said. “I’m looking for the end of this down the road, but only time will tell.”
Since Edelstein said she hadn’t seen the decision she couldn’t comment.
The court docket shows Barrett held a status conference with the parties in May but no settlement could be reached. The case against Stephens will proceed. Barrett found the short time span — four days including a weekend — between when Edelstein requested the vacation and her firing could lead a jury to find Stephens improperly fired her.
Stephens has argued Edelstein was fired because she couldn’t get along with the court staff. The court denied some other allegations against Stephens, but will allow a jury to consider punitive damages.
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