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Jury likely to decide if former Butler County magistrate was fired for being Jewish

Posted: 9:02 AM, Aug 12, 2019
Updated: 2019-08-12 09:02:27-04
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BUTLER COUNTY — A jury could decide whether a Butler County judge fired a magistrate for requesting Jewish holidays off and two Butler County prosecutors could be removed from the lawsuit if a federal magistrate’s recommendation is accepted in a federal case.

Kimberly Edelstein filed a $1 million lawsuit against Butler County Common Pleas Judge Greg Stephens, Prosecutor Mike Gmoser and Chief Assistant Prosecutor Dan Ferguson in 2017, claiming Stephens fired her for wanting to take off eight high holy days and that all three men said negative things about her that prevented her from securing another job.

U.S. Magistrate Judge Karen Litkovitz recently issued a 75-page recommendation, finding the claims against Gmoser and Ferguson should be dismissed and determining a jury should hear discrimination accusations against the judge.

Edelstein worked for Stephens after Judge Patricia Oney retired in early 2016. Edelstein told Stephens on July 28, 2016 she would need to take eight days off in October to observe Jewish high holy days.

Edelstein said Stephens reacted to her request by yelling, “Holy cow, eight days,” and he appeared to be angry, according to the recommendation by Litkovitz. She was fired four days later.

Stephens has argued he “terminated Edelstein after months of internal strife between Edelstein and other members of his personal staff, which created a negative and disruptive work environment,” although he said he never discussed this issue with her prior to her termination.

Litkovitz said the close time between the vacation request and the termination was suspect, which means a jury should decide the question. She said Edelstein produced evidence “which would allow a reasonable jury” to find Stephens’ decision “at least in part” was motivated by her request observe Jewish holidays.

Edelstein also claimed Stephens “stigmatized” her with the abrupt firing and made disparaging remarks about her within the legal community, destroying her ability to find another job. On that question, Litkovitz found in favor of Stephens, saying much of Edelstein’s evidence was unsubstantiated hearsay.

The prosecutors were includedin the lawsuit because of their alleged actions related to Edelstein’s next job as an assistant Wood County prosecutor. She claims Ferguson said of her that “she’s horrible” and harmed her reputation, and she claims Gmoser caused her to lose that Wood County prosecutor position because of his comments. Litkovitz disagreed.

Edelstein said after Gmoser gave his opinion about Edelstein’s work to Wood County Prosecutor Paul Dobson, a friend of Gmoser’s, Dobson forced her to resign.

“The act of Gmoser calling the employer of the person who sued him was at the very least reckless, and at most done with malice and ill will or revenge,” Edelstein wrote in one of her many court filings. “Clearly, an angry call to a colleague about a colleague’s employee would likely result in termination of that employee.”

Gmoser called Dobson after Edelstein filed the lawsuit to find out how Edelstein knew what he had said about her work. Litkovitz revealed Edelstein found a handwritten note by Dobson in a file of paperwork she was given during the hiring process in Wood County that mentioned the “horrible” remark.

Litkovitz found Gmoser did nothing wrong.

“Plaintiff has offered no evidence that the statements were false or morally stigmatizing in any sense,” she wrote.

Gmoser told the Journal-News that U.S. District Court Judge Michael R. Barrett will have to review and confirm the magistrate judge’s work before he and Ferguson are removed from the case.

“I appreciate the recommendation and I am looking forward to the completion of this case,” he said. “I appreciate the detail the magistrate judge took and the time the magistrate judge took to do the work of the court.”

Barrett has dismissed 12 of the 21 claims Edelstein filed against the three men, including one that declared the county’s vacation policy unlawful.

Edelstein could not be reached for comment.

The Journal-News is a media partner of WCPO 9 On Your Side.