507 F.Supp. 752 (E.D.La. 1981), Civ. A. 80-4260, Myers v. Connick

Docket Nº:Civ. A. 80-4260
Citation:507 F.Supp. 752
Party Name:Myers v. Connick
Case Date:February 09, 1981
Court:United States District Courts, 5th Circuit, Eastern District of Louisiana
 
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Page 752

507 F.Supp. 752 (E.D.La. 1981)

Sheila MYERS

v.

Harry CONNICK, Individually and in his capacity as Orleans Parish DistrictAttorney.

Civ. A. No. 80-4260.

United States District Court, E. D. Louisiana.

Feb. 9, 1981

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George M. Strickler, Jr., New Orleans, La., for plaintiff.

William F. Wessel, New Orleans, La., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JACK M. GORDON, District Judge.

This is a civil rights case in which the plaintiff contends that her employment was terminated because she exercised her constitutionally-guaranteed right of free speech. Plaintiff, Sheila Myers, was employed by the defendant, Harry Connick, as an Assistant District Attorney for Orleans Parish, Louisiana. Connick is being sued individually and in his capacity as the Orleans Parish District Attorney.

On October 7, 1980, plaintiff was fired by the defendant, Harry Connick, from her position as an Assistant District Attorney. She contends that she was fired because of a questionnaire which she circulated to her fellow Assistant District Attorneys. Myers contends that her circulation of the questionnaire was a constitutionally protected activity for which she may not be fired. Defendant asserts that the decision to terminate Myers' employment was based on her refusal to accept a transfer and was thus a lawful action.

On December 5, 1980, plaintiff's hearing on her application for a preliminary injunction was converted to a trial on the merits, a nonjury trial was held, and the matter was taken under submission. Having thoroughly reviewed the evidence, the memoranda furnished by counsel and the applicable law, the Court now makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1.

The plaintiff, Sheila Myers, was employed by the defendant, Harry Connick, as an Assistant District Attorney in the Orleans Parish District Attorney's Office. Connick is the District Attorney for Orleans Parish.

2.

Plaintiff occupied her position as an Assistant District Attorney for over five years. During that period she refused a number of promotion offers in order to remain in her position as a trial attorney.

All of the evidence presented at trial indicated that Myers was a competent, conscientious and effective trial attorney. She was active in programs at law schools in the City of New Orleans and participated in high school and scouting programs sponsored by the District Attorney's Office. In addition, at Judge Israel Augustine's request, plaintiff participated in a probation program for youthful first offenders in his section of court.

3.

The Orleans Parish District Attorney's Office assigns two or three Assistant District Attorneys as prosecutors in each section of Criminal District Court in Orleans Parish. From 1976 through October of 1980, Myers served as a prosecutor in Section A, Judge Charles Ward's section.

In October of 1980, plaintiff learned that she was being considered for a transfer to Section I of Criminal Court, Judge Israel Augustine's section. Myers was strongly opposed to the proposed transfer since she was comfortable in her position with Judge Ward and since she was reluctant to prosecute in Judge Augustine's section because of her participation in his probation program. Plaintiff was aware that conflicts of interest would arise if she were called upon to prosecute individuals for whom she had served as a counsellor in Judge Augustine's program.

4.

Myers spoke with several of her supervisors regarding her objections to the proposed transfer. She expressed her reservations about going to Section I to Dennis Waldron, First Assistant District Attorney, and to Training Supervisor Bridget Bane.

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Myers also had occasion to discuss the matter with the defendant at a meeting she arranged with Connick and Waldron regarding the hiring of her law clerk as an Assistant District Attorney.

5.

On October 6, 1980, shortly after her conference with Connick and Waldron, Myers received a memorandum which indicated that she was being transferred to Section I, Judge Augustine's section. She again spoke with Dennis Waldron, expressing her reluctance to accept the transfer. During the course of this discussion, the plaintiff and Waldron discussed a number of other concerns which the plaintiff had about conditions within the office. Plaintiff testified that in response to Waldron's suggestion that her concerns were not mirrored by others within the office, she informed him that she would do some research on the areas discussed.

6.

After speaking with Waldron, plaintiff returned to her home for the evening. Disturbed by the transfer order, she was unable to sleep and stayed up most of the evening preparing a list of the issues which expressed her concerns about conditions in the District Attorney's Office. She enumerated these issues in a questionnaire which she prepared for distribution to her fellow Assistant District Attorneys. 1

The next morning, October 7, Myers arrived at work at approximately 5:30 a. m. She typed the questionnaire and prepared forty copies of it.

7.

At approximately 8:15 a. m. that morning, the defendant discussed the transfer order with Myers. Connick testified that he had planned to take the day of October 7th off, but made a special trip into the office to discuss the transfer matter with the plaintiff. Connick urged Myers to accept the transfer and their conversation ended when Myers indicated to him that she would "consider" transferring to Section I.

8.

Later that same day, at approximately 11:15 a. m., Myers began to distribute copies of her questionnaire to the other Assistant District Attorneys, ensuring that only the Assistants and no clerical personnel, received copies of the questionnaire.

Plaintiff distributed the questionnaires by personally going to the offices of some Assistants and by calling others on the telephone to come by her office. Myers also distributed a number of the questionnaires

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during lunch. In all, she asked seventeen Assistant District Attorneys to respond to the questionnaire. Fifteen took copies of the questionnaire, one refused to respond to it and another was unable to obtain a copy of the questionnaire prior to the subsequent events of the day.

9.

Shortly after noon, Dennis Waldron learned that the plaintiff was distributing the questionnaire among the Assistants in the office. Waldron immediately phoned the defendant and informed him that the plaintiff was creating a "mini-insurrection" within the office. Waldron urged Connick to return to the office, advice which was heeded.

When Connick arrived at his office, he discussed the matter with Waldron, Sergeant Frank Ruez, Chief Investigator, and Fred Harper, Co-Chief of Trials. Shortly thereafter, at approximately 2:00 p. m. that afternoon, Connick summoned the plaintiff to his office and informed her that her position with the District Attorney's Office was being terminated as of 5:00 p. m. that afternoon.

Connick told the plaintiff that she was being fired because of her refusal to accept a transfer. The defendant also informed Myers that he considered her distribution of the questionnaire to be an act of insubordination. Connick objected strongly to Question No. 10 2 on the questionnaire which he felt impugned the integrity of the supervisors within the office, and to Question No. 11 3 which he felt would be damaging if discovered by the press.

Prior to leaving the defendant's office, Myers offered to let Connick know what her final decision was regarding the transfer to Section I. Connick informed the plaintiff that he did not want to hear about her decision.

10.

Plaintiff turned in her keys to Sergeant Frank Ruez at 5:00 p. m. that afternoon. She returned to work during office hours for the next three days, arranging her files and making notes regarding the cases which she had been handling.

11.

The preponderance of the evidence in this case indicates that the plaintiff was fired by the defendant because of her circulation of the questionnaire within the District Attorney's Office. Although Connick informed Myers that she was being fired because of her refusal to accept a transfer, the facts in this case show that it was the questionnaire that was the real reason behind the termination of plaintiff's job.

Sheila Myers was clearly upset by her proposed transfer to Section I. She conveyed her dissatisfaction over the proposal to a number of her superiors, including the defendant. Nevertheless, when asked by the defendant on the morning of her firing to accept the transfer, she informed Connick that she would "consider" it. Connick, apparently accepting that as a satisfactory response for the time being, then left the office for the day. It was not until later that day when Dennis Waldron phoned Connick and informed him that plaintiff was causing a "mini-insurrection" by her circulation of the questionnaire that Connick made his decision to terminate Myers' employment.

Between the time of her two meetings with Connick, plaintiff said nothing to indicate that she was not considering the proposed transfer. In fact, George Ours, Jr., an Assistant District Attorney who was also being proposed for a transfer to Section I, testified that on October 7th, the plaintiff called him to her office to discuss the future assignment of their new caseload in Section I. She also gave Ours one of the questionnaires

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at that time. Nevertheless, Myers' discussion with Ours of their prospective caseload in Section I indicates that she was either "considering" making the transfer as she had informed Connick that she was planning to...

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