Dooley v. St. Louis County, No. ED 92424.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSherri B. Sullivan
Citation302 S.W.3d 202
PartiesJ. Michael DOOLEY, Plaintiff/Appellant, v. ST. LOUIS COUNTY, Missouri, Charlie A. Dooley, and James Baker, Defendants/Respondents.
Decision Date08 December 2009
Docket NumberNo. ED 92424.
302 S.W.3d 202
J. Michael DOOLEY, Plaintiff/Appellant,
v.
ST. LOUIS COUNTY, Missouri, Charlie A. Dooley, and James Baker, Defendants/Respondents.
No. ED 92424.
Missouri Court of Appeals, Eastern District, Division Two.
December 8, 2009.
Motion for Rehearing and/or Transfer to Supreme Court Denied January 25, 2010.

[302 S.W.3d 205]

David E. Sowers, Ferne P. Wolf, M. Beth Fetterman, St. Louis, MO, for Plaintiff/Appellant.

Patricia Redington, Cynthia L. Hoemann, Clayton, MO, for Defendants/Respondents.

SHERRI B. SULLIVAN, P.J.


Introduction

J. Michael Dooley (Plaintiff) appeals from the trial court's judgment, entered upon a jury verdict, in favor of Defendants St. Louis County, Missouri (County), Charlie Dooley (Dooley) and James Baker (Baker) on Plaintiff's 42 USC § 1983 claim against his former employer, County, and individual government actors Dooley and Baker, for violations of Plaintiff's First Amendment rights. We affirm.

Factual and Procedural Background

This is the second time Plaintiff's case has been considered by this Court. Plaintiff previously appealed from the trial court's judgment granting Defendants' motion to dismiss Plaintiff's petition, and, finding the Plaintiff's petition adequately stated a cause of action, we reversed the trial court's judgment and remanded the case for further proceedings in Dooley v. St. Louis County, 187 S.W.3d 882 (Mo. App. E.D.2006) (hereinafter referred to as "Dooley I").

Plaintiff was the former director of the St. Louis County Department of Highways and Traffic. Dooley is the county executive for County. Baker was Dooley's chief of staff during the time period relevant to Plaintiff's claims.

Plaintiff filed his petition in May 2005, alleging that Defendants had violated his rights under the First and Fourteenth Amendments to the U.S. Constitution by terminating his employment in retaliation for Plaintiff's opposition to certain proposed road projects supported by Dooley. The case proceeded to trial in November 2008.

During voir dire, Plaintiff's counsel informed the jury panel that the case was going to involve an e-mail containing sexual content. Plaintiff's counsel indicated that he did not believe that the jurors would have to view the video attached to the e-mail, but that they would hear what was in the video. Plaintiff's counsel then told the panel that the e-mail was titled "two tickets for the price of one," and that the video showed a naked woman with a baseball bat in her rectum, performing oral sex on a naked man. After so informing the panel, Plaintiff's counsel asked if there was "anybody in here who is made so uncomfortable by that, that they don't think they could fairly evaluate the circumstances leading up to it, and the way that it was handled?" Several potential jurors spoke up, including Juror 12 (Tracy). The following discussion then occurred:

Tracy]: Yes, if it goes on and on, I would. Just hearing it once is enough, but I don't think I would want to listen to it for a long period of time.

[Plaintiff's counsel]: And you wouldn't want to sit here and watch it for 50 seconds?

[Tracy]: No. How many seconds?

[Plaintiff's counsel]: Fifty.

[Tracy]: No. I don't think I would.

Later, Plaintiff's counsel asked the panel to disclose if any juror was aware of any reason that would interfere with his or her ability to reach a fair and impartial verdict in the case. The following exchange then

[302 S.W.3d 206

occurred between Plaintiff's counsel and Tracy:

Tracy]: I understand the concept of pornography, but I wouldn't want to have to watch it and talk about it for a long period of time.

[Plaintiff's counsel]: You think that might make it impossible—

[Tracy]: It bothers me.

[Plaintiff's counsel]: Well, I can tell you, I don't think anybody thinks other than, you know, it's bad stuff, but then the question is, what are the surrounding circumstances.

[Tracy]: Why do we have to really watch it?

[Plaintiff's counsel]: Huh?

[Tracy]: Why do we have to really watch it?

[Plaintiff's counsel]: I'm not going to ask you to, but during the course of the trial, you may have to. I can't guarantee you that you won't. Okay? So if you had to see it, you couldn't be fair? Is that what you're saying?

[Tracy]: I really don't know.

Subsequently, Defendants' counsel followed up on this line of questioning with Tracy:

[Defendants' counsel]: Ms. Tracy, you said you would be bothered, and you talked a lot about being bothered if for some reason you had to look at the video clip. If you were satisfied that [Plaintiff] acted appropriately after he got the e-mail, would you be able to put aside your feelings about not liking the content of the video, or having to see the video? And would you decide this case fairly based on the evidence, and not hold him responsible if you decided he acted appropriately? You would be able to be fair?

[Tracy]: Yes.

Plaintiff's counsel challenged Tracy for cause, opining that she had expressed considerable difficulty with being fair and impartial given the content of the video. Defendants' counsel countered that Tracy had stated she could be fair, and the court denied Plaintiff's motion to strike Tracy.

Tracy was seated as a juror and the cause proceeded to trial. During the second day of trial, Defendants' counsel commenced her cross-examination of Plaintiff. The following exchange occurred when the subject of the e-mail was being discussed:

[Defendants' counsel]: I'm going to ask you for the third time, [Plaintiff], to tell the jury whether the clip was pornographic.

[Plaintiff]: I think pornographic is in the mind of the reader, and to me, that was not pornographic, it was entirely inappropriate and it had sexual content to it.

[Defendants' counsel]: The video clip that was attached was not pornographic in your mind; is that correct?

[Plaintiff]: Yes, because it was inappropriate.

[Defendants' counsel]: Okay. This inappropriate e-mail clip that was not pornography, showed a woman with a baseball bat in her rectum, didn't it?

[Plaintiff]: Yes, it did.

[Defendants' counsel]: Okay. And the buttocks and torso—

[Tracy]: Can I leave while you're talking about this, because I said I'm not going to listen to this. I'm not going to. The degree of pornography is not on trial, it's pornography or not pornography.

[Court]: Ms. Tracy, let me do this. Let me talk to the attorneys at sidebar. Okay? Can you come on up, please.

During proceedings held at sidebar, the court indicated that Tracy would be excused from service. Plaintiff's counsel requested

[302 S.W.3d 207

a mistrial on the basis that Tracy's spontaneous outburst would unduly influence the jury. The court denied Plaintiff's request.

Tracy was excused. After one alternate juror was excused due to vacation plans, another alternate juror was seated in Tracy's place. When proceedings returned to open court, the trial court told the jury that they did not need to worry about what happened to the other jurors. The court further stated, "There is nothing that anybody did wrong or anything like that. It's just, you know, I can explain it to you after the verdict, but I'm not going to bother with that right now."

Plaintiff tendered verdict directors requiring Plaintiff to prove his speech was a "motivating factor" in Defendants' termination action. Plaintiff also offered an instruction defining "motivating factor": "The phrase `motivating factor' as used in these instructions means plaintiff's statement or statements played a part in defendant's decision to discharge plaintiff. However, plaintiff's statement or statements need not have been the only reason for the defendant's decision to discharge him." Defendants tendered verdict directors requiring Plaintiff to prove his speech was a "substantial or motivating factor" for Defendants' action. The trial court used its own verdict directors, adopting Plaintiff's format, but employing the "substantial or motivating factor" language. The court rejected Plaintiff's instruction defining "motivating factor." During the instruction conference, Plaintiff objected to the addition of the phrase "substantial or" to the verdict director "for the reason that it becomes a d[i]sjunctive submission. It's confusing. It gives the jury a roving commission." Plaintiff also objected to the court's rejection of his definitional instruction for "motivating factor," stating that "we believe that in accordance with this particular case, that that definition is mandatory to explain motivating factor because it requires definition."

The jury returned a verdict in favor of Defendants, by a 9-3 vote, and the trial court entered judgment accordingly on November 7, 2008. Plaintiff filed his Motion for New Trial on December 3, 2008, raising as grounds the court's failure to strike Tracy for cause; failure to grant a mistrial; and refusal of Plaintiff's instruction defining the phrase "motivating factor, and tendered Jury Instructions E, F and G, giving instead Instructions 6, 7, and 8, without the definitional instruction." The court denied Plaintiff's motion on January 5, 2009.

This appeal follows.

Points on Appeal

In his first point on appeal, Plaintiff claims the trial court erred in refusing to grant a new trial after instructing the jury to find for Plaintiff if Plaintiff's speech was a "substantial or motivating factor" in the actions Defendants took against him and rejecting Plaintiff's tendered verdict directors, which called for Plaintiff to prove his speech was "a motivating factor," because the verdict directors given to the jury constituted a prejudicial roving commission in that the verdict directors allowed the jury to require Plaintiff to prove his speech was a "substantial factor," when, if Plaintiff proved his speech was a "motivating factor," Plaintiff was entitled to verdicts in his favor.

In his second point, Plaintiff claims the trial court erred in denying Plaintiff's challenge of Juror Tracy for cause because Tracy was not eligible to be a...

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2 practice notes
  • Investment Corp. of Virginias v. Acquaviva, No. ED 92949.
    • United States
    • Court of Appeal of Missouri (US)
    • December 8, 2009
    ...of a party to sue or be sued in a representative capacity, the person shall do so by specific negative averment, which shall include such 302 S.W.3d 202 supporting particulars as are peculiarly within the pleader's knowledge. "A denial in general terms is insufficient to constitute a `speci......
  • Coyle v. City of St. Louis, No. ED 97509.
    • United States
    • Court of Appeal of Missouri (US)
    • September 10, 2013
    ...of Review Mistrials are drastic remedies that should be granted only in exceptional circumstances. Dooley v. St. Louis County, 302 S.W.3d 202, 208 (Mo.App.E.D.2009). The decision to sustain or overrule a motion for mistrial lies within the trial court's discretion, and we will reverse a den......
2 cases
  • Investment Corp. of Virginias v. Acquaviva, No. ED 92949.
    • United States
    • Court of Appeal of Missouri (US)
    • December 8, 2009
    ...of a party to sue or be sued in a representative capacity, the person shall do so by specific negative averment, which shall include such 302 S.W.3d 202 supporting particulars as are peculiarly within the pleader's knowledge. "A denial in general terms is insufficient to constitute a `speci......
  • Coyle v. City of St. Louis, No. ED 97509.
    • United States
    • Court of Appeal of Missouri (US)
    • September 10, 2013
    ...of Review Mistrials are drastic remedies that should be granted only in exceptional circumstances. Dooley v. St. Louis County, 302 S.W.3d 202, 208 (Mo.App.E.D.2009). The decision to sustain or overrule a motion for mistrial lies within the trial court's discretion, and we will reverse a den......

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