Grossman v. McKay

• Decision Date: 19 November 1974
• Docket Number: Civ. No. 74-535-HM.
• Citation: 384 F. Supp. 99
• Parties: Jeremy GROSSMAN v. Jenean McKAY.
• Court: U.S. District Court — District of Maryland

384 F. Supp. 99

Jeremy GROSSMAN v. Jenean McKAY.

Civ. No. 74-535-HM.

United States District Court, D. Maryland.

November 19, 1974.

James D. Newton, Silver Spring, Md., for plaintiff.

George Beall, U. S. Atty. and Robert A. Rohrbaugh, Asst. U. S. Atty., Heidi A. Dellafera, Atty., Dept. of Health, Education and Welfare, Washington, D. C., for defendant.

HERBERT F. MURRAY, District Judge.

This case is before the Court on a motion to dismiss or, in the alternative, a motion for summary judgment. In view of the fact that matters outside the pleadings have been presented for consideration by the Court, under the authority of Rule 12(b) of the Federal Rules of Civil Procedure, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.

Defendant, Jenean McKay, a federal government employee, contends that as a matter of law she is immune from liability for alleged defamatory statements made to another government employee concerning a Quickhand stenographic course offered by the plaintiff, Jeremy Grossman.

From the pleadings, defendant's deposition and affidavits filed by both sides, the following facts appear.

In November, 1973, defendant, an employee Development Specialist in the Training Education Branch of the Office of Personnel Management at the National Institutes of Health (hereinafter NIH), received a letter from plaintiff, operator of a business known as Employee Development Systems (hereinafter EDS), describing a new programmed instruction course in alphabetic shorthand (Quickhand) which was being taught at other Government agencies in Washington. The course was advertised to require only thirty hours of classroom training for successful completion — successful in the sense that those who completed the course would qualify for the Civil Service Commission requirement of eighty words per minute.¹ Defendant responded to the letter by requesting further information concerning plaintiff's course. David Goldstein, an EDS salesman, in response to Ms. McKay's request, referred her to a David Barry of the Internal Revenue Service (hereinafter IRS), Peter Schindler of the Commerce Department and Carol Yascowitz of the Pentagon for a critique on the merits and success of the course.

On or about January 21, 1974, defendant contacted the personnel management office of the IRS and asked to speak with the person responsible for the development and planning of their training courses. Instead of being referred to Mr. Barry, the man suggested by Goldstein, defendant was referred to Ms. Terri Lazarus. During the ensuing conversation, which lasted for at least fifteen minutes according to defendant's deposition, defendant was informed by Ms. Lazarus that the Quickhand course had been taught at IRS and that Mr. Grossman had given his students their eighty words per minute proficiency certificates. Ms. Lazarus stated that sometime after completion of the course it was discovered that his students were unable to take dictation satisfactorily. She also noted that the Civil Service Commission had recommended that the Quickhand students participate in a new course on a different shorthand system although their proficiency certificates were not being revoked. Toward the conclusion of this conversation, defendant gave Ms. Lazarus the names of the other references supplied her by Mr. Goldstein.

Before contacting the other references, defendant received a telephone call from Ms. Lazarus in which the latter requested that defendant send her a memorandum concerning the information supplied defendant by Goldstein. Defendant learned during this conversation that Ms. Lazarus had spoken to both Peter Schindler and Carol Yascowitz, the two outstanding references on defendant's list, concerning the Quickhand course. Mr. Schindler, according to Ms. Lazarus, had stated that Quickhand had been taught satisfactorily at the Commerce Department for a period of fifty-six hours and not the advertised thirty hours. Ms. Yascowitz, according to Ms. Lazarus' recounting of the conversation, had stated that the Pentagon was still considering using Quickhand but had not come to a final conclusion at that time. In her deposition, defendant stated that she herself did subsequently contact Carol Yascowitz but never spoke with Peter Schindler personally.

On or about January 30, 1974, David Goldstein once again called defendant, and at this time he gave her two additional references, Barbara Stannard of the Social and Economic Statistics Administration (hereinafter SESA) and Robert Harris of the National Oceanic and Atmospheric Administration (hereinafter NOAA).

As a result of the January 30th call, defendant, on or about February 4, 1974, called Ms. Stannard for a critique of the Quickhand course. The motivation for this call, according to her affidavit and deposition, was that despite the negative reports received from Ms. Lazarus, defendant was still considering the possibility of recommending plaintiff's course at NIH.

After introducing herself and explaining the reason for the call, defendant was informed by Ms. Stannard that she was not familiar with the Quickhand course. Defendant then briefly explained the course and mentioned that Mr. Grossman would be the instructor. With this information, Ms. Stannard replied that she knew Mr. Grossman and that he was to begin a course in ABC Stenoscript within the next few days at SESA. Defendant states that Barbara Stannard informed her that she had not been impressed with Mr. Grossman when she had previously interviewed him for a training position at SESA and that his services to teach the ABC Stenoscript course were retained through the office of the Secretary of the Commerce Department, not through the personnel management office at SESA.

In response to this disclosure, defendant relayed to Ms. Stannard the information she had received from Ms. Lazarus concerning the IRS experience and the comments of Peter Schindler and Carol Yascowitz.

It is primarily this conversation between defendant and Barbara Stannard at SESA which forms the basis of this suit. Plaintiff in his complaint and in the affidavit filed in opposition to defendant's motion alleges that when he reported to SESA, on or about February 13, 1974 for an orientation session with the SESA officials, he was informed by Ms. Stannard that defendant had told her that he, plaintiff, had falsified Civil Service records in that he had certified as qualified students who had not passed a shorthand transcription test, and further that the Civil Service Commission proposed to revoke the proficiency certificates of the students so certified. Throughout the course of the pleadings and papers filed in this action, defendant denies that she ever made any false or malicious comments concerning the Quickhand course and denies ever telling Barbara Stannard that plaintiff falsified Civil Service records in the manner alleged, or that the Civil Service Commission was considering revoking the students' proficiency certificates.

Plaintiff claims that as a result of these alleged defamatory remarks Barbara Stannard cancelled the contracts made by SESA with the plaintiff and that he has lost additional government business as well.

Before passing to the merits of the motion for summary judgment, some additional facts which appear from the supporting papers should be mentioned.

On or about February 4, 1974, defendant contacted Robert Harris at NOAA. She was told at this time that Quickhand was going to be taught at this agency, and that she was welcome to call back at the conclusion of the course for Mr. Harris' evaluation. Defendant did in fact call Mr. Harris again on or about May 3, 1974, and was informed that Mr. Harris would not recommend the course as a result of student dissatisfaction.

Finally, as a result of her investigation, defendant concluded that she could not recommend Quickhand to her superiors. Apparently as a result of her decision not to recommend, the decision was made by defendant's superiors not to accept Mr. Grossman's offer to teach the Quickhand course at NIH.

The question before the Court on this motion is whether the defendant, under the facts of this case and taking all inferences therefrom in favor of the plaintiff, is entitled as a matter of law to a judgment in her favor by virtue of the doctrine of governmental immunity.

Defendant McKay contends that, under the authority of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), reh. denied, 361 U.S. 855, 80 S. Ct. 41, 4 L.Ed.2d 93 (1959), and related cases, plaintiff's case against her is barred in that all her actions were performed under the color of office and well within the scope of her duties. She therefore urges the Court to cloak her actions with absolute immunity and thereby vest her with protection not only from any possible recovery which might be had but also from the very prosecution of the charge itself against her.

In his opposition to defendant's motion, plaintiff Grossman vehemently argues that the absolute privilege of Barr v. Matteo, supra is limited in its protective scope to governmental "officials" who occupy positions requiring the exercise of executive discretion. Defendant McKay, plaintiff contends, is merely a governmental employee without discretionary powers, and, therefore, not within the protective penumbra of the absolute privilege recognized in Barr.

In considering defendant's motion, the Court must at the outset respond to this threshold question raised by plaintiff.

In one sense, the plaintiff makes a valid point. It is readily recognized that absolute immunity must not and does not vest in an individual merely because he or she is a government employee. The very terms executive or official immunity used to designate the privilege suggest that there is a limitation to the immunity afforded and that it will not be automatically applied to the vast class of government employees.

Furtherm...