The 6th Circuit Court of Appeals has officially ended a lawsuit against Butler County Prosecutor Mike Gmoser filed by a former magistrate, but her case is going to trial against the judge she claims fired her for being Jewish.
Kimberly Edelstein filed a $1 million lawsuit against Butler County Common Pleas Judge Greg Stephens, Gmoser and Chief Assistant Prosecutor Dan Ferguson in 2017, claiming Stephens fired her for wanting to take off eight Jewish high holy days and the men talked negatively about her, destroying her career.
U.S. Magistrate Judge Karen Litkovitz issued a 75-page recommendation more than three years 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 and Edelstein appealed only the counts involving Gmoser.
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.”
Edelstein got a job with the Wood County Prosecutor Paul Dobson’s office after Stephens fired her, but she lost that job. She said it was Gmoser’s fault because he made disparaging remarks about her work to her new boss. Barrett didn’t see it that way and neither did the three-judge 6th Circuit panel that heard the case and issued their ruling Monday.
“Edelstein cannot show that Gmoser caused her any damages: she has not sufficiently rebutted, with any admissible evidence, Dobson’s sworn reasons as to why she was asked to resign. Similarly, as noted above, Edelstein has no personal knowledge of Dobson’s and Gmoser’s conversations, including any conversation they may have had about why Edelstein was asked to resign,” the 6th Circuit order reads.
“In short, without any evidence showing that Gmoser intentionally and unjustifiably interfered with a business relationship of Edelstein, much less a showing of any damages, the district court properly granted summary judgment.”
Edelstein could not be reached for comment regarding this chapter in the lawsuit. Settlement talks have failed in the case against Stephens and the trial is scheduled for two weeks at the end of January.
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.
Gmoser told the Journal-News he is glad the case, as far as he is concerned, is finally over.
“I’m glad I lived to see this, based upon her statement she filed the expedited appeal because she was concerned about my age,” Gmoser said. “All I can say is she’s got a long time to live with the fact that it was a case she never should have filed in the first place.”
This is the second time in a week a Butler County official has been released from a lawsuit they say they should never have been in. Liberty Twp. Tom Farrell was dismissed from the civil lawsuit filed against Butler County Auditor Roger Reynolds by 88-year-old West Chester Twp. resident Gerald Parks in Butler County Common Pleas Court last September. Parks’ attorney Chip Goff dismissed Farrell from the suit telling the Journal-News he “is not the defendant to focus on.”
Farrell said he is not going to just go away quietly after this disturbing happenstance that has consumed almost a year of his life. He said he has learned only one percent of civil cases go to trial and the average case length is two to three years and during that time “you have no ability to defend yourself, you’re considered guilty until proven innocent.”
“My opinion on civil legal process, on the other hand, is something that I believe needs to be fixed, and I will be pursing the options to do so,” Farrell said. “People suing in civil cases need some accountability for their actions.”
He said he intends to contact State Rep. Thomas Hall and Sen. George Lang to see if there is a legislative cure, but he has no illusions, and “most of them are going to tell you that I don’t have a snowball’s chance in hell, but I like those odds.”
Gmoser said he hopes they tread carefully if they intend to pursue what is called “loser pay” legislation to reduce frivolous lawsuits.
“I certainly understand having been what you might call victimized by a frivolous lawsuit, I can understand the personal feelings of anybody so affected,” Gmoser said. “The problem I have always had however with loser pay issues — there are states that have those programs — however my feeling has always been nevertheless that to have such a general approach without some very strict safeguards, would result in a chilling effect on legitimate issues where people have a legitimate claim that’s not successful but yet meritorious to the point of getting through.”
Fighting civil lawsuits isn’t cheap either. Because Farrell is an elected official, the township taxpayers paid the $67,906 legal tab. The legal bills defending the lawsuit against Gmoser, Stephens and Ferguson were not readily available.