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Judge: Ex-Ohio State band director has 4 months to gather evidence on discrimination claims

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COLUMBUS, Ohio — A federal judge said Friday that an Ohio State University band director fired for turning a blind eye to a "sexualized culture" there has four months to gather evidence over his gender discrimination claim.

U.S. District Judge James Graham rejected Jonathan Waters' due process arguments last week but is allowing a claim Waters was treated differently than a similarly situated female employee to proceed.

President Michael Drake fired Waters last year after an internal investigation concluded Waters did nothing to stop raunchy, suggestive and inappropriate band rituals and traditions. Waters disputes the findings. His suit seeks reinstatement and $1 million in damages.

Ohio State attorney Mike Carpenter told Graham at a Friday hearing that it would be unfair to allow Waters' legal team to conduct a sweeping review of other university dismissals when their claim is limited to the narrow category of "similarly situated" employees. He noted that the marching band has never had a female director.

PHOTO: FILE - In this Sept. 7, 2013, file photo, Ohio State University marching band director Jonathan Waters leads the band in "Carmen Ohio" following a NCAA football game against San Diego State at Ohio Stadium in Columbus, Ohio. U.S. District Judge James Graham said Friday, May 1, 2015, he is giving attorneys for fired Ohio State University band director Jonathan Waters four months to advance his claims of gender discrimination and limiting what records they seek. Graham rejected Waters’ due-process arguments last week, but is allowing a claim Waters was treated differently than a similarly-situated female employee to proceed. (Adam Cairns(/The Columbus Dispatch via AP, File)  MANDATORY CREDIT
FILE - In this Sept. 7, 2013, file photo, Ohio State University marching band director Jonathan Waters leads the band in "Carmen Ohio" following a NCAA football game against San Diego State at Ohio Stadium in Columbus, Ohio. U.S. District Judge James Graham said Friday, May 1, 2015, he is giving attorneys for fired Ohio State University band director Jonathan Waters four months to advance his claims of gender discrimination and limiting what records they seek. Graham rejected Waters’ due-process arguments last week, but is allowing a claim Waters was treated differently than a similarly-situated female employee to proceed. (Adam Cairns(/The Columbus Dispatch via AP, File) MANDATORY CREDIT

Carpenter said the university believes it can prove a fired female cheerleading coach cited in Waters' complaint, Lenee Buchman, was not similarly situated to him. He said they intend to file a motion soon to that effect, which could quickly end the case.

"Absent a similarly situated female, they have no case," he said.

Waters' lawyer, David Axelrod, said it's impossible to know whether gender discrimination was a factor in any other Ohio State firings unless lawyers are able to review university records and depose witnesses. He suggested letting his side gather evidence within the Drake administration, the School of Music and the athletic department for a start.

Graham said the fact the band and football team appear on the same field does not mean they can be compared, so he rejected initial inclusion of the athletic department. He said initial discovery would be limited to other employment decisions by Drake or within the School of Music that oversees the band.

The judge said he may agree to extend information gathering into other areas depending on what is found.

Waters has argued he wasn't given the second chance that Buchman was because he was a male and a scapegoat for the university as a federal Title IX sexual discrimination investigation was underway. Ohio State reached a settlement with the U.S. Department of Education shortly after his firing.

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