Edelstein v. Stephens

• Decision Date: 05 August 2019
• Docket Number: Case No. 1:17-cv-305
• Parties: KIMBERLY EDELSTEIN, Plaintiff, v. JUDGE GREG STEPHENS, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

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

August 5, 2019

Barrett, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

I. Introduction

Plaintiff Kimberly Edelstein brings this action alleging violations of her rights under federal and state law by defendants Butler County, Ohio Common Pleas Judge Greg Stephens, Butler County Prosecutor Michael Gmoser, and Butler County Assistant Prosecutor Dan Ferguson. Plaintiff filed an amended complaint on July 21, 2017 (Doc. 20), which is the operative complaint in the lawsuit. Plaintiff brought 20 claims against defendants. The relevant facts of the amended complaint are summarized in the Report and Recommendation on defendants' motion for partial dismissal of the complaint (Doc. 22) dated February 16, 2018. (Doc. 31). The district judge adopted the Report and Recommendation in part and denied defendants' motion as to Counts I, VI, VII, VIII and XV. (Doc. 40).

The claims that remain pending before the Court are plaintiff's claims for injunctive relief (Count I); violation of plaintiff's First Amendment right to free exercise of her religion under 42 U.S.C. § 1983 against defendant Stephens (Count III); violation of plaintiff's Fourteenth Amendment right to equal protection of the law under § 1983 against defendant Stephens (Count V); violation of plaintiff's Fourteenth Amendment right to substantive due process under § 1983 against defendants Stephens, Gmoser, and Ferguson, respectively (Counts VI, VII, VIII); unlawful termination based on religious discrimination in violation of Ohio Rev. Code §§ 4112.02 and 4112.99 against defendant Stephens (Count IX); defamation against defendant Stephens (Count XV); and intentional interference with a business relationship against defendant Gmoser (Count XIX). (Docs. 31, 40).

This matter is before the Court on the following summary judgment motions:

• Plaintiff's first motion for partial summary judgment on Counts VII, VIII and XIX of the amended complaint (Doc. 140), defendants' response (Doc. 148), and plaintiff's reply (Doc. 154);

• Plaintiff's second motion for partial summary judgment on Count VI of the amended complaint (Doc. 141), defendants' response (Doc. 148), and plaintiff's reply (Doc. 155); and

• Defendants' motion for summary judgment (Doc. 143), plaintiff's response (Doc. 149), and defendants' reply (Doc. 152).

II. Summary judgment standard

A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Under Fed. R. Civ. P. 56(c), summary judgment should be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." All evidence, and all inferences drawn therefrom, should be construed in the light most favorable to the non-moving party. Satterfield v. Tenn., 295 F.3d 611615 (6th Cir. 2002) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986)).

The function of the reviewing court is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477U.S. at 249. The court is not required to search the entire record for material issues of fact, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. The party opposing summary judgment must "do more than simply show that there is some metaphysical doubt as to the material facts." See Matsushita, 475 U.S. at 586. The party opposing a motion for summary judgment "must make an affirmative showing with proper evidence" to defeat the motion. Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (citing Street, 886 F.2d at 1479). "Speculation does not create a genuine issue of fact. . . ." Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995).

There is no genuine issue for trial if the record, considered as a whole, could not lead a reasonable jury to find for the non-moving party. Nilles v. Givaudan Flavors Corp., 521 F. App'x 364 (6th Cir. 2013) (citing Matsushita, 475 U.S. at 587). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007). Facts that are not blatantly contradicted by the record "remain entitled to an interpretation most favorable to the non-moving party." Coble v. City of White House, Tenn., 634 F.3d 865, 870 (6th Cir. 2011). In addition, the court "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (citation omitted). It is the jury's function, not the function of the court, to make credibility determinations, weigh evidence, and draw legitimate inferences from the facts. Id. at 150 (citing Anderson, 477 U.S. at 255).

It is not necessary that the submissions of a party opposing summary judgment be in a form that is admissible at trial, but a party must present "enough evidence that will be admissible at trial to demonstrate that a genuine issue on a material fact exists." Alexander, 576 F.3d at 558; see also Fed. R. Civ. P. 56(c)(1)(A), (4) (requiring an affidavit or declaration to "set out facts that would be admissible in evidence"). An affidavit used to support a motion for summary judgment must be "made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Affidavits that simply repeat vague and conclusory allegations from the complaint are not sufficient to create a genuine issue of material fact. Emmons v. McLaughlin, 874 F.2d 351, 358 (6th Cir. 1989).

The court cannot consider hearsay evidence not subject to any exception when deciding a summary judgment motion. Alexander, 576 F.3d at 558 (citation omitted). Hearsay evidence includes a statement that is not made by the declarant while testifying at trial or hearing and that is offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c). An opposing party's statement that is offered against the party is not hearsay if it meets certain conditions, including if the opposing party "manifested that it adopted [the statement] or believed [the statement] to be true"; the statement "was made by a person whom the party authorized to make a statement on the subject"; or the statement "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed." Fed. R. Evid. 801(d)(2). This Court has held that if properly authenticated and offered against the opposing party, "internet chat logs containing [the opposing party's] statements" are admissible as non-hearsay evidence. U.S. v. Edington, No. 2:10-cr-335, 2011 WL 13130880, at *3 (S.D. Ohio Apr. 12, 2011).

III. Disputed and undisputed facts

The parties agree on some relevant facts, but many of the facts that are material to the resolution of the parties' motions are disputed. The parties' versions of the facts are set forth below. The facts are undisputed except where noted.

Plaintiff was employed as a staff attorney/magistrate in the Butler County, Ohio Court of Common Pleas for Judge Patricia Oney for approximately nine years. Defendant Judge Stephens hired plaintiff as a staff attorney/magistrate position when he assumed Judge Oney's former position on March 14, 2016. (Stephens Aff., Doc. 126-10, ¶¶ 2, 8¹). Plaintiff was an at-will employee who served at the pleasure of Judge Stephens. (Id., ¶ 8).

On Thursday, July 28, 2016, Edelstein told Stephens she would need to take eight, non-consecutive days off in October 2016 for the Jewish High Holy Days. (Id., ¶ 22).² Stephens responded by exclaiming, "Holy Cow!" (Id.). Plaintiff asserts that Stephens "yelled" at her, "Holy Cow, eight days!" (Plaintiff Aff., Doc. 141-5, ¶¶ 3, 4). Plaintiff alleges it was clear to her that Stephens was angry because he was frowning and yelling at her, and this was the first and only time he had yelled at her. (Id., ¶ 4). Plaintiff alleges that Stephens then "calmed down" after she explained the days were work-restricted and she had taken them off for nine years without a problem from Judge Oney, and he then waved dismissively at her and said "fine." (Id., ¶¶ 9-10; Plaintiff Depo. I, Doc. 131 at 31). Stephens told plaintiff to email his bailiff, JamieWilson, and Stephens's judicial assistant, Melinda Barger, the days she would be off, which plaintiff did immediately. (Pltf. Depo. I, Doc. 131 at 31). Plaintiff sent an email to Stephens and Barger informing them of the days she would be off on Thursday, July 28, 2016 at 1:52 p.m. (Id.; Stephens Aff., Doc. 126-10, Exh. 2).

Defendant Stephens alleges that later in the day after this conversation, he observed strife among his personal staff. (Stephens Aff., Doc. 126-10, ¶¶ 27-31). Stephens asserts "the tension still seemed evident the next morning, and [he] noticed [plaintiff's] door was closed." (Id., ¶ 29). The parties disagree as to who the source of the stress was. According to Stephens, "Ms. Barger reported that Ms. Edelstein was...