Dismissal sought in suit against judge

12/21/2012

A Lucas County Common Pleas Court judge has asked a federal judge to dismiss a wrongful termination lawsuit filed against him, saying that the facts of the case are similar to a recently decided case filed against a fellow judge.

Judge Gary Cook was sued earlier this year by a former bailiff, who claimed that the judge violated the federal Family and Medical Leave Act when he terminated her job. Colleen Cimerman of Temperance filed the complaint in U.S. District Court in Toledo after she was fired as a criminal bailiff in Judge Cook’s courtroom.

Federal Judge James Carr issued an order Nov. 1 that dismissed most of the claims filed by Ms. Cimerman. Only one claim was left pending that, if granted, would permit Ms. Cimerman to be reinstated.

The Lucas County Prosecutor’s Office had filed a motion to reconsider maintaining that final claim on behalf of Judge Cook, noting the similarities with an unrelated lawsuit recently dismissed in federal court. That case involved Judge Stacy Cook, who is married to Judge Cook.

“In [Joanne E. Horen et al v. Judge Stacy Cook], this court held that Judge Stacy Cook, a judge of the Lucas County Common Pleas Court, does not qualify as an FMLA employer and, as a result, the FMLA claim asserted against her fails as a matter of law,” the motion stated. “In this case, it is undisputed that Judge Gary Cook is also a judge of the Lucas County Common Pleas Court. In the same manner, he cannot be an FMLA employer and should be entitled to judgment as a matter of law on plaintiff’s FMLA claims.”

The motion referenced a 13-page order by Judge Carr issued Nov. 20 that dismissed the complaint filed against Judge Stacy Cook by her former staff attorney, Joanne Horen.

Ms. Horen had claimed that she was terminated from her common pleas position in December, 2009, in retaliation for taking a two-month FMLA absence earlier that year. Mrs. Horen, who worked for the court since 1996, had asked for back pay and more than $1 million in compensatory and punitive damages.

Judge Carr ruled that as a Common Pleas judge, Judge Stacy Cook did not qualify as an employer under the FMLA statute. Ms. Horen filed a notice of appeal.

“I’m just happy it was able to go through the process and I’m comfortable with the result we have,” Judge Stacy Cook said.

The federal law allows employees to take up to 12 weeks of unpaid leave to care for a sick family member, a newborn or adopted child, or to recover from a worker’s own serious illness. The law requires employers to allow workers who take the leave to return to their position with the same pay, benefits, and conditions and employment.

Mrs. Cimerman was a court employee since 1999 and was assigned to work for Judge Gary Cook in 2004 after he was elected. She was fired Feb. 11, 2011.

She alleged that she was fired after her return in January, 2011, from an approved medical leave that began in December, 2010, for “anxiety and depression.”

Ms. Cimerman’s response to the motion for reconsideration is due by Wednesday.

Judge Gary Cook was unavailable for comment.

Contact Erica Blake at: eblake@theblade.com or 419-213-2134.