Former Lucas County bailiff’s suit reinstated

4/4/2014

A federal appeals court has reinstated a claim that had been dismissed as part of a wrongful-termination lawsuit filed by a former bailiff for Lucas County Common Pleas Judge Gary Cook.

The U.S. 6th Circuit Court of Appeals reversed the dismissal ordered by U.S. District Court Judge James Carr last year and returned the case of Colleen Cimerman to federal court in Toledo, saying the court had erred in dismissing the suit on the grounds that the court could not be sued for injunctive relief.

Ms. Cimerman, who claimed she was fired in February, 2011, after returning from an approved leave under the federal Family and Medical Leave Act, had asked the court to order Judge Cook to give her back her former job.

Attorneys for Judge Cook had argued that he did not qualify as an FMLA employer, and Judge James Carr agreed last year, writing in his decision to dismiss that Judge Cook was not subject to being sued because he is “in effect, the Common Pleas Court,” which cannot be sued.

The appeals court said Monday that suits against Ohio judges have been permitted to proceed when plaintiffs allege violations of the FMLA and similar laws.

“The fact that the court cannot sue or be sued has no bearing on Judge Cook’s ability to be sued in his official capacity,” the appeals court wrote. “… It was error to dismiss the suit in this case simply for lack of capacity to be sued under state law.”

The appellate judges then listed a number of “alternative bases that may support dismissal of this suit,” but did not address those issues in its decision.

Kevin Pituch, an assistant Lucas County prosecutor, said the prosecutor’s office — which represents Judge Cook — may seek a motion to dismiss on different grounds or may file a motion for summary judgment — in effect, asking the court to decide the case without a trial.

“We respect the decision of the Court of Appeals, and we will probably move to address the issues the court told us about on remand,” he said.

John Franklin, attorney for Ms. Cimerman, could not be reached for comment.

Contact Jennifer Feehan at: jfeehan@theblade.com or 419-213-2134.