Edelstein v. Judge Greg Stephens

KIMBERLY EDELSTEIN, Plaintiff, v. JUDGE GREG STEPHENS, et al., Defendants.

Case No. 1:17-cv-305

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

February 16, 2018

Barrett, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

Plaintiff Kimberly Edelstein brings this action alleging violations of her rights under federal and state law by defendants Judge Greg Stephens, Butler County, Ohio, Michael Gmoser and Dan Ferguson. Plaintiff filed an amended complaint on July 21, 2017. (Doc. 20). This matter is before the Court on defendants' motion for partial dismissal of the amended complaint (Doc. 22), plaintiff's response in opposition (Doc. 26), defendants' reply in support of the motion (Doc. 27), and plaintiff's sur-reply (Doc. 28-1). Plaintiff has also filed a motion to stay a decision on the motion to dismiss as to Count II of the amended complaint only. (Doc. 30). Defendants have not filed a response to plaintiff's motion.¹

Plaintiff has requested oral argument on defendants' motion. (Doc. 26). The legal and factual issues involved in this case are not complex and they have been fully briefed by the parties. Pursuant to S.D. Ohio Civ. R. 7.1, the Court therefore finds that oral argument is not "essential to the fair resolution" of this case and denies plaintiff's request.

I. Background

Defendants have summarized the facts of the amended complaint that are relevant to the Counts they move to dismiss in their memorandum in support of their motion to dismiss. (Doc.22 at 3-5). Plaintiff has incorporated defendants' summary of the facts into her response. (Doc. 26 at 1). The Court therefore adopts defendants' summary of the facts alleged by plaintiff in the amended complaint for purposes of the motion to dismiss. These allegations of fact are set forth below:

Plaintiff was employed as a staff attorney/magistrate for eight and one-half years by Judge Patricia S. Oney. (Doc. 20, ¶ 9). Plaintiff had been allowed paid time off to observe the Jewish holidays which she had requested by Judge Oney. (¶ 13). On July 28, 2016, Judge Stephens approved plaintiff's request to take eight non-consecutive days off in October to observe the Jewish holidays and requested that she inform the rest of his staff of the specific days she would be out of the office. (¶¶ 25, 27).

On or about August 1, 2016, Judge Stephens informed plaintiff that he was terminating her employment because she did not fit in with his staff. (¶¶ 30, 32). Judge Stephens told plaintiff that the problem was not her work performance and that he would not contest unemployment benefits. (¶¶ 34, 36). He further agreed to provide a letter of recommendation but would not reconsider his decision to let her go after plaintiff said she was responsible for supporting a family of five. (¶ 37). Plaintiff requested that Judge Stephens allow her to stay for an additional three months, which Judge Stephens denied. (¶¶ 38, 39). Judge Stephens provided false and negative comments about plaintiff to unnamed prospective employers. (¶¶ 42, 43).

Judge Stephens and Prosecuting Attorney Gmoser were friends when Judge Stephens worked in the Prosecutor's Office, and Gmoser published false statements to a potential employer of plaintiff concerning her employment record and work performance. (¶¶ 188-190). The statements Edelstein attributes to Gmoser are that her work was "disjointed"; he had trouble "getting stuff back from her on foreclosures"; and he "had problems getting things." (¶ 191).Plaintiff never worked for or with Gmoser and he had no knowledge of her work performance. Gmoser's statements were made in bad faith, were known to be false, and were made with reckless disregard for the truth. (¶ 197). Gmoser'made these statements in support of his friend Judge Stephens in retaliation for plaintiff "litigating against Defendant Stephens and Defendant Butler County, Ohio." (¶ 200). These statements have caused harm to plaintiff's personal and professional reputation. (¶ 201).

Assistant Prosecutor Dan Ferguson, when asked his opinion about Edelstein, stated to a potential employer, "Oh she's horrible." (¶ 208). Ferguson was not in a position to provide a reference, and he made the statement in support of his friend Judge Stephens and in retaliation for plaintiff litigating against Judge Stephens and Butler County. (¶¶ 211, 217).

Plaintiff and Judge Stephens entered into an oral agreement to provide each other three months' notice in the event either party wished to terminate the employment relationship, allegedly altering her previously at-will status. (¶¶ 228, 235). Judge Stephens tenninated plaintiff's employment without providing notice, purportedly in breach of the oral agreement. (¶¶ 241-242). Plaintiff had no work performance issues in the nine years she was employed by Judges Oney and Stephens. (¶ 266). She was performing her own job duties and most of the duties of Judge Stephens' personal assistant, and she was handling the entire civil docket for Judge Stephens. (¶ 268). Judge Stephens was not angry or nasty with plaintiff until she requested the Jewish holidays off for October 2016. (¶ 270). Judge Stephens had his Judicial Assistant Melinda Barger present when he terminated plaintiff, and Barger was "smirking at plaintiff while she was being terminated." (¶¶ 271-72). Judge Stephens permitted his staff to provide negative comments about plaintiff to attorneys, court staff and potential employers, and the manner in which Judge Stephens terminated plaintiff gave the impression to other employeesof the court and attorneys of the local bar that plaintiff's termination was due to misconduct by her. (¶¶ 277-78, 291).

Judge Stephens conveyed to plaintiff that she would have job security so long as her work performance was good, and she was led to believe she would not be terminated without just cause. (¶¶ 322, 325).

Plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) against Butler County on January 31, 2017, claiming religious discrimination under Title VII and retaliation. Her charge was dismissed on February 8, 2017.

II. Defendants' motion to dismiss (Doc. 22)

Defendants move to dismiss the following Counts of plaintiff's amended complaint with prejudice under Fed. R. Civ. P. 12(6) for failure to state a claim upon which relief can be granted: Counts I, IV, VI, VII, VIII, X, XI, XII, XIII, XIV, XV in part, XVI, XVII, XVIII and XX. Defendants move to dismiss Count II for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).

A. Count II - Government Employee Rights Act of 1991

Defendants raise a subject matter jurisdiction challenge to plaintiff's claim brought in Count II under the Government Employee Rights Act of 1991 (GERA), 42 U.S.C. § 2000e-16a et seq. (Doc. 22 at 6-7). The GERA protects certain State employees from discrimination based on religion and other protected bases, including employees chosen by an elected public office holder in a political subdivision of any State to be a member of the elected official's personal staff. 42 U.S.C. § § 2000e-16b(a)(1), 16c(a)(1). Section 2000e-16c sets forth the applicable enforcement procedures. It provides in relevant part:

Any individual referred to in subsection (a) of this section may file a complaint alleging a violation, not later than 180 days after the occurrence of the allegedviolation, with the Equal Employment Opportunity Commission, which, in accordance with the principles and procedures set forth in sections 554 through 557 of Title 5, shall determine whether a violation has occurred and shall set forth its determination in a final order. If the Equal Employment Opportunity Commission determines that a violation has occurred, the final order shall also provide for appropriate relief.

. . . .

Any party aggrieved by a final order under subsection (b) of this section may obtain a review of such order under chapter 158 of Title 28. For the purpose of this review, the Equal Employment Opportunity Commission shall be an "agency" as that term is used in chapter 158 of Title 28.

42 U.S.C. § 2000e-16c(b)(1), (c).

Plaintiff claims that she is entitled to protection under the GERA as a member of the personal staff of Judge Stephens, an elected state official, and that defendant Stephens violated the Act by discriminating against her on the basis of her religion when he terminated her employment after she requested time off from work to observe the Jewish High Holidays. (Doc. 20, ¶¶ 68-75).

Defendant contends that the district court lacks jurisdiction over plaintiff's GERA claim. Defendant argues that under the statutory scheme, a claimant who wishes to pursue a GERA claim must first file a complaint with the EEOC, which shall set forth its determination in a final order. 42 U.S.C. § 2000e-16c(c). Defendant argues that if the complainant is dissatisfied with the EEOC's determination, she may obtain review from a federal court of appeals pursuant to chapter 158 of Title 28; however, there is no provision under the Act for judicial review of a claim by the federal district courts. (Doc. 22 at 6-7, citing Dyer v. Radcliffe, 169 F. Supp.2d 770, 775-76 (S.D. Ohio 2001), and collecting cases). Defendant asserts that plaintiff filed an EEOC charge under Title VII, not GERA as the statute requires, and that in any event the district court lacks jurisdiction to consider the claim.

Plaintiff concedes that if the EEOC renders a final decision on a complaint filed under the GERA, the district court does not have jurisdiction over the GERA claim that is the subject of the complaint. (Doc. 26 at 2). However, plaintiff argues that it was the legislative intent that an aggrieved individual not be required to first file an administrative complaint with the EEOC; if the individual opts not to file a complaint with the EEOC, then the district court has "initial jurisdiction" over the GERA claim; and if the EEOC declines to review the GERA complaint, the district court likewise has jurisdiction. (Id...