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KOUNITZ v. SLAATTEN

September 28, 1995

LISA J. KOUNITZ and MARTIN S. KOUNITZ, Plaintiffs, against MARILYN J. SLAATTEN, individually and as Westchester County Attorney, CAROL VAN SCOYOC, individually and as Deputy County Attorney for the County of Westchester, and COUNTY OF WESTCHESTER, N.Y., Defendants.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 FACTS

 This action for the violation of civil rights, under 42 U.S.C. § 1983 and 42 U.S.C. § 2000-e et seq., is before this Court on the Defendants' motions to dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and to strike, pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, and on the Plaintiffs' motion to disqualify the defense counsel, pursuant to Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984).

 The facts as alleged in the complaint are as follows: The Plaintiff, Lisa Kounitz ("Kounitz"), was an Assistant County Attorney in the Westchester County Attorney's Office from the fall of 1991 until she was terminated on February 18, 1994. The Defendant, Marilyn Slaatten ("Slaatten"), is the County Attorney and the Defendant, Carol Van Scoyoc ("Van Scoyoc"), is the Deputy County Attorney and was Kounitz's immediate supervisor.

 In furtherance of their scheme, in November of 1993, Slaatten and Van Scoyoc denied Kounitz an annual raise on the grounds that her work was unsatisfactory. They destroyed and deleted from the computer's hard drive a memorandum previously written by Van Scoyoc that recommended Kounitz for an annual raise based upon her satisfactory work. In December of 1993, Kounitz's husband, the plaintiff Martin Kounitz ("Martin Kounitz"), called the Director of Citizen Services for the County of Westchester and complained of Slaatten's incompetence and mistreatment of her staff. The Director of Citizen Services reported Martin Kounitz's allegations to Slaatten.

 In January of 1995, Kounitz informed her secretary and Van Scoyoc that she was pregnant. On February 14, 1995, Slaatten advised Kounitz that she would be terminated. The next day, when confronted, Slaatten denied knowledge of Kounitz's pregnancy and offered Kounitz the option of resigning. In retort, Kounitz informed Slaatten that firing pregnant women had consequences. Effective February 18, 1994, Kounitz was terminated.

 On April 1, 1994, Kounitz filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination on the basis of sex. On January 5, 1995, Kounitz and Martin Kounitz filed this action alleging that the Defendants violated their First Amendment and state law rights to free speech, discriminated against Kounitz in the workplace on the basis of her gender in violation of Title VII and state law, and violated their First Amendment and state law rights to petition the government for redress of their grievances.

 The Defendants have moved to dismiss the complaint for failure to state a claim because (1) the complaint does not allege that Kounitz ever exercised her First Amendment rights by speaking on an issue of "public concern"; (2) Martin Kounitz lacks standing because he has not alleged any injury; (3) Kounitz has failed to obtain a right to sue letter; (4) Van Scoyoc is not an "employer" under Title VII or state law; (5) the complaint does not allege that Kounitz attempted to petition the government for redress of her grievances and because Martin Kounitz is not a civil servant; and (6) because Kounitz has elected to pursue an administrative remedy on her state law discrimination claim. The Defendants have also moved to strike the "irrelevant, scandalous, cruel and unfounded allegations" contained in the complaint.

 The Plaintiffs have cross-moved to disqualify Slaatten from representing any of the Defendants except herself in her individual capacity on the grounds that her representation creates a conflict of interest.

 DISCUSSION

 1. First Amendment Free Speech Claims

 
a. Failure to State a Claim

 The complaint alleges that the Defendants terminated Kounitz in retaliation for the Plaintiffs' alleged exercise of their First Amendment rights. The Plaintiffs argue that Martin Kounitz exercised his First Amendment rights when he complained to the Director of Citizens Services and that Kounitz exercised her First Amendment rights when she told Slaatten that firing pregnant women would have consequences. The Plaintiffs further argue that Kounitz was fired and suffered financial injury as a result of her statement and that Kounitz's termination has chilled Martin Kounitz's exercise of his First Amendment rights and caused him emotional and financial injury.

 The Defendants argue that the Plaintiffs' First Amendment claims must be dismissed because (1) Martin Kounitz has not suffered a cognizable injury as a result of his complaint and therefore lacks standing, (2) the complaint does not allege that Kounitz was terminated as a result of her statement, and (3) Martin Kounitz's complaint concerned an employee's personal dispute with an employer not an issue of "public concern" protected by the First Amendment.

 A party seeking to invoke federal jurisdiction bears the burden of alleging facts sufficient to establish standing. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 107 L. Ed. 2d 603, 110 S. Ct. 596 (1990). The constitutional minimum of standing contains three elements: (1) injury in fact; (2) causation; and (3) redressability. Lujan v. ...


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