Gross v. Winter, 88-7214
| Decision Date | 26 May 1989 |
| Docket Number | No. 88-7214,88-7214 |
| Parties | 49 Fair Empl.Prac.Cas. 1588, 50 Empl. Prac. Dec. P 39,054, 277 U.S.App.D.C. 406, 4 Indiv.Empl.Rts.Cas. 950 Teri-Ann GROSS v. Nadine P. WINTER, Councilmember, Council of the District of Columbia, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 88-00779).
Gregory Mize, with whom Richard Gladstein, Washington, D.C., was on the brief, for appellant.
Stephen L. Braga, Washington, D.C., for appellee.
Harvey L. Reiter, Arthur B. Spitzer, Elizabeth Symonds, William P. Skinner and T. Jeremy Gunn, Washington, D.C., were on the brief, for amici curiae American Jewish Congress, American Civil Liberties Union Fund of the National Capital Area and the Anti-Defamation League of B'nai B'rith, urging affirmation of decision.
Before MIKVA and RUTH BADER GINSBURG, Circuit Judges, and HOGAN, * District Judge.
Opinion for the Court filed by District Judge THOMAS F. HOGAN.
This case presents the question whether a member of the Council of the District of Columbia enjoys absolute legislative immunity to certain constitutional and common law claims arising out of the member's firing of a legislative researcher. The district court below rejected Councilmember Nadine Winter's absolute immunity defense and denied her motion to dismiss on those grounds. Gross v. Winter, 692 F.Supp. 1420 (D.D.C.1988) (Sporkin, J.). She then took the present appeal under 28 U.S.C. Sec. 1291 (1982). 1 For the reasons set forth below, we affirm.
The essential allegations of the complaint are that Councilmember Winter hired Ms. Teri-Ann Gross as a legislative researcher and six months later fired her and called her "incompetent" to the press after denying her leave to observe Jewish holidays and after Ms. Gross had approached the Anti-Defamation League of B'nai B'rith ("ADL"). Like the district court, for present purposes we must accept as true the well-pleaded factual allegations of her Complaint and draw all inferences in favor of Ms. Gross. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
Regarding the nature of Ms. Gross's position with Councilmember Winter, the complaint alleges only that "[o]n March 17, 1987, Ms. Gross began a position of employment as a legislative researcher on Ms. Winter's staff and held that position until October 5, 1987," Complaint at p 6, App. at 5, and that "Ms. Gross was hired by Ms. Winter under the excepted service provisions of the District of Columbia Code (see D.C.Code Sec. 1-610.1, et seq.), and was given a full-time temporary appointment not to exceed April 17, 1988." Id. at p 7.
A provision in the referenced Code sections, entitled "Nature of positions in the Excepted Service and conversion rights," provides in relevant part that "[e]ach person holding an excepted appointment under the authority of this section and Secs. 1-610.1 and 1-610.3 is intended to be an individual Councilmember Winter suggests that we draw from this description in the Code inferences regarding the legislative importance of Ms. Gross's position as an employee "intimately involved with policy formation and execution." Brief for Appellant at 6. Ms. Gross, in turn, vehemently resists such inferences on the present record, arguing that "[t]here are so many of these 'excepted service' employees that one must naturally wonder whether the statutory definition relied upon by defendant ... is being applied accurately, or whether most of those employees--including Ms. Gross--simply fall into the 'confidential' rather than the 'policy determining' category." Appellee's Brief at 26-27 n. 20. In our analysis, however, the importance of Ms. Gross's position to Councilmember Winter in the performance of her legislative functions becomes largely irrelevant. See infra pp. 172-73.
whose primary duties are of a policy determining, confidential, or policy advocacy character and who reports directly to the head of an agency." D.C.Code Ann. Sec. 1-610.2 (1987)
Regarding the events giving rise to this litigation, the allegations of the complaint paint the following scenario. In April 1987, Councilmember Winter allowed Ms. Gross a day's leave for Passover, but let it be known in her office that she was more pleased with another Jewish employee who had not asked for the day off. Complaint at p 8. In August 1987, when Ms. Gross learned that a close childhood friend had unexpectedly died, she requested leave to attend the funeral in Rhode Island, but Councilmember Winter refused to "rule on her request;" whereupon Ms. Gross went anyway. Id. at p 9. As a result, she was placed on "leave without pay status." Id. at p 11. Councilmember Winter, however, withdrew that sanction after meeting with Ms. Gross, at the same time warning her that " 'any unexcused absence in the future [would be] unacceptable' and would result in her being 'terminate[d] [from] employment effective the moment [she] left the office.' " Id. at p 13.
In September 1987,
Ms. Gross formally requested permission to be absent from work for two days--September 25th and 26th--so that she could observe the Jewish high holy days of Rosh Hashanah. Through a memorandum dated the same day, Ms. Winter denied Ms. Gross' request for leave. The next day, September 9th, Ms. Winter orally stated within the office that religious holidays were not part of her agenda.
Id. at p 14. Ms. Gross then contacted the local branch of the ADL, which then interceded with Councilmember Winter on Ms. Gross' behalf via a "third-party." Id. at p 15. After this unnamed third-party interceded, Councilmember Winter terminated Ms. Gross effective October 1987, citing "staff reassignments." Id. at p 17.
The parties then resorted to the press. On September 22, 1987,
Ms. Gross and the ADL held a press conference to make the public more fully aware of the circumstances surrounding Ms. Winter's termination of Ms. Gross. When Ms. Gross returned from the press conference, she was informed by Ms. Winter that she had been placed on administrative leave status 'effective Tuesday, September 22, 1987 at 4:00 p.m. through Monday, October 5th,' her termination date. On the evening of September 22nd, Ms. Winter voluntarily consented to be interviewed for a WRC-TV, Channel 4, television news broadcast, and made the following statements to her interviewer, and thus to a metropolitan area-wide broadcast audience:
Interviewer: Why did you fire Teri Gross?
Ms. Winter: Because she's incompetent.
Interviewer: Not because she went to the ADL?
Ms. Winter: I did not ... know she had gone to the ADL and didn't know what the ADL was until today, and I fired her and typed a memo on Friday afternoon.
Id. at p 18. Finally, on two occasions thereafter "Ms. Winter made oral remarks within her office concerning Ms. Gross which Based on her termination and the incidents giving rise to it, in March, 1988, Ms. Gross filed a five-count complaint in the district court. She asserted two constitutional claims under 42 U.S.C. Sec. 1983 for violation of her First Amendment rights to free exercise of religion and freedom of speech; and three common law claims, one for wrongful discharge in violation of public policy, one for slander per se, and one for intentional infliction of emotional distress. 2 She further demanded substantial compensatory and punitive damages.
singled her out for being a member of the Jewish faith." Id. at p 19
In response, Councilmember Winter filed a motion to dismiss on grounds of absolute legislative immunity and for failure to state a claim. App. at 20. The district court denied the motion from the bench following a hearing on July 8, 1988, see App. at 167, and subsequently issued a Memorandum Opinion and Order on August 1, 1988.
Although Councilmember Winter urges us to decide the merits of her motion to dismiss for failure to state a claim, we reach only the question of absolute legislative immunity. Even if we possessed "pendent appellate jurisdiction" to consider the non-immunity issues as Councilmember Winter argues, we would decline to do so. 3 We agree with the district court that these issues should await a more complete factual record. 4 For purposes of this appeal, therefore, we will assume the viability of Ms. Gross's claims. 5
As a preliminary matter, we must determine whether a member of the Council of the District of Columbia enjoys absolute legislative immunity in any circumstances to suits brought under Section 1983. The District of Columbia, of course, occupies a unique position as the only "federal municipality" in the nation. 6 Councilmember Winter argues, without contradiction from Ms. Gross, that because Congress The status of the District of Columbia under Section 1983 has been the subject of both Supreme Court precedent and congressional legislation. In District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), the Court held that the District was not a "State or Territory" within the meaning of Section 1983. Id. at 432, 93 S.Ct. at 610. Congress thereafter amended Section 1983 to include the District of Columbia within its ambit. Pub.L. No. 96-170, 93 Stat. 1284 (1979). 7 The clear purpose of the amendment was "to give citizens of the District of Columbia rights equal to those of citizens in the states and territories of the United States." H.R.Rep. No. 96-548, 96th Cong., 1st Sess. 1 (1979), U.S.Code Cong. & Admin.News 1979, p. 2609. 8 Moreover, although the subject of legislative immunity apparently never arose, the legislative history of the amendment evinces an intent to bring the District of Columbia within the mainstream of Section 1983 jurisprudence. 9
has authorized the Council to exercise the combined powers of a state and a...
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