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GROSS v. WINTER

August 1, 1988

TERRI-ANN GROSS, Plaintiff,
v.
NADINE P. WINTER, Defendant



The opinion of the court was delivered by: SPORKIN

 STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.

 This action is before me on defendant's Motion to Dismiss. Defendant Nadine Winter, D.C. Councilmember, hired plaintiff Terri-Ann Gross, an attorney, as a legislative researcher under the Excepted Service provisions of the D.C. Code. After six and one half months of work, defendant terminated plaintiff. Plaintiff brings two federal causes of action under 28 U.S.C. § 1343(a)(3): she alleges that she was dismissed in retaliation for the exercise of her First Amendment right to free speech; she also alleges that she was denied her First Amendment right to freely practice her religion. Plaintiff also brings three common law claims under the doctrine of pendent jurisdiction: wrongful discharge in violation of public policy, slander and intentional infliction of emotional distress.

 Defendant raises two threshold defenses which, if meritorious, would preclude a lawsuit against her. First, she alleges that plaintiff's federal claims should be dismissed because she has absolute legislative immunity, a doctrine whose reach, she contends, is prescribed by the Speech and Debate Clause of the Constitution. Secondly, defendant alleges that the District of Columbia's employment interest in an employee hired under the "Excepted-Service" outweighs, as a matter of law, that employee's First Amendment rights. Defendant also claims that she is absolutely immune from the common law claims under the local speech and debate clause, D.C. Code § 1-223, that wrongful discharge of an at-will employee is not a recognized tort in the District of Columbia and that plaintiff's claims fail to constitute a cause of action amounting to either defamation or intentional infliction of emotional distress. Because none of these threshold defenses has merit, I deny defendant's Motion to Dismiss.

 On a motion to dismiss, the well-pled allegations in the complaint must be accepted as true, and any ambiguities or uncertainties concerning the sufficiency of the claim must be resolved in favor of the plaintiff. See Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1979); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). As defendants concede, plaintiff's statement of the facts must be accepted as true in resolving this pre-discovery motion to dismiss. *fn1"

 Defendant hired plaintiff as a legislative researcher under the "excepted-service" provisions of the D.C. Code; plaintiff began work on March 17, 1987. In April, 1987, plaintiff received defendant's permission to take a day of leave to observe Passover although defendant indicated in the office that she was pleased that another Jewish employee had not requested the same holiday. This day of absence was credited as administrative leave and not deducted from her annual leave. On August 17, 1987, plaintiff requested a day and a half of leave to attend the Rhode Island funeral of a close childhood friend who had died unexpectedly in her sleep. Defendant refused to rule on plaintiff's request before she left although she knew that plaintiff was in a highly emotional state. As a result, plaintiff suffered emotional distress on her trip. Upon her return to the office, plaintiff found a memo from defendant on her desk accusing her of taking leave which had been denied and placing plaintiff on "leave without pay" status for one month. When plaintiff went to protest this action, she was informed that defendant would not be in that day because she intended to attend the funeral of a friend who had just died in New York. Plaintiff and a representative from the Secretary of the Council's office subsequently convinced defendant to rescind this memo but defendant stated that any future unexplained absence would result in termination. Defendant also announced to her staff that no one had the right to complain outside the office concerning matters within the office.

 On September 8, 1987, defendant denied by memorandum plaintiff's request for a two day leave to observe the Jewish holiday of Rosh Hashanah. The next day, defendant stated in her office that religious holidays were not part of her agenda. Plaintiff contacted the Anti-Defamation League of B'nai B'rith (ADL) concerning this denial of leave to observe a religious holiday. The ADL arranged for a third party to meet with defendant to try to convince her to grant plaintiff the requested leave. In mid-September, this third party met with defendant and informed her that plaintiff had spoken to the ADL about the denial of leave. Defendant told the third party that she would take the matter under advisement. On September 21, 1987, plaintiff learned, by way of memorandum, that her position was terminated due to "staff reassignments" effective October 5th.

 On September 22, 1987, plaintiff held a news conference with the ADL to inform the public of the circumstances surrounding plaintiff's termination. Upon her return from the press conference to the office, plaintiff was informed by defendant that she had been placed on administrative leave status effective that day through October 5, 1987, her termination date.

 On a television news interview on the evening of September 22, 1987, defendant stated that she fired plaintiff because she was incompetent and not because she had gone to the ADL.

 Since plaintiff's termination, defendant has made two comments in her office concerning plaintiff and the fact that she is Jewish.

 Plaintiff seeks damages in the amount of $ 20,250,000.


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