Herrington v. MISSISSIPPI REGIONAL MEDICAL CTR., Civ. A. No. J77-0396(N).

• Court: United States District Courts. 5th Circuit. Southern District of Mississippi
• Writing for the Court: WALTER L. NIXON, Jr.
• Citation: 512 F. Supp. 1317
• Parties: Nancy HERRINGTON, Plaintiff, v. MISSISSIPPI REGIONAL MEDICAL CENTER; Lee Hayden, Individually and in his Official Capacity; Thomas O. Logue, Jr., Individually and in his Official Capacity; Thomas E. Parker; J. W. Bryant; Melvin C. Starrett; James W. Bell; Willie Mae Lund; L. L. Hightower; and William K. Sharp, in their Official Capacities as Members of the Board of Trustees of Southwest Mississippi Regional Medical Center, Defendants.
• Docket Number: Civ. A. No. J77-0396(N).
• Decision Date: 06 May 1981

512 F. Supp. 1317

Nancy HERRINGTON, Plaintiff,
v.
MISSISSIPPI REGIONAL MEDICAL CENTER; Lee Hayden, Individually and in his Official Capacity; Thomas O. Logue, Jr., Individually and in his Official Capacity; Thomas E. Parker; J. W. Bryant; Melvin C. Starrett; James W. Bell; Willie Mae Lund; L. L. Hightower; and William K. Sharp, in their Official Capacities as Members of the Board of Trustees of Southwest Mississippi Regional Medical Center, Defendants.

Civ. A. No. J77-0396(N).

United States District Court, S. D. of Mississippi, Jackson Division.

May 6, 1981.

512 F. Supp. 1318

T. Mack Brabham, McComb, Miss., George M. Strickler, Jr., New Orleans, La., Clyde Ratcliff, McComb, Miss., for plaintiff.

Armin Moeller, Fuselier, Ott and McKee, Jackson, Miss., John Gordon Roach, Jr., Norman B. Gillis, Jr., McComb, Miss., Louis A. Fuselier, Jackson, Miss., for defendants.

MEMORANDUM OPINION

WALTER L. NIXON, Jr., District Judge.

This matter is before the Court on Defendant's Motion for a Judgment in Accordance with the Answers to Interrogatories, or Alternatively, for Judgment Notwithstanding the Verdict, and the Plaintiff's Motion to Correct and Amend the Judgment. See Fed.R.Civ.P. 49, 50, 59 and 60.

On November 26, 1977, the Plaintiff filed a complaint alleging that her discharge from the Southwest Mississippi Regional Medical Center "constituted a denial of her rights of free speech, due process and equal protection of the laws as guaranteed by the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983." This matter was tried before a jury on February 9-13 and February 16-19, 1981. On February 20, 1981, the jury submitted their answers to certain interrogatories propounded to them by the Court and returned a verdict against Defendant Hayden for $100,000 in compensatory damages, but absolved all other defendants of liability.

The Court recognizes the complex nature of the instant litigation as a rapidly changing field of law. The problem is to first determine if the speech is constitutionally protected. If it is found to be so protected, and also found to be a motivating

512 F. Supp. 1319

factor in the discharge, then the Court's duty is to arrive at a balance between the interests of the Plaintiff as a citizen in commenting upon matters of public concern, and the interests of the public hospital and its officials as her employer, in promoting the safe and efficient delivery of quality health care services. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); Givhan v. Western Line Consolidated School District, 439 U.S. 410, 411, 99 S.Ct. 693, 694, 58 L.Ed.2d 619 (1979); Mt. Healthy City School District v. Doyle, 429 U.S. 274, 284, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977). The ultimate balancing of interests between the plaintiff and the hospital with regard to First Amendment protection is a question of law for the Court. Schneider v. City of Atlanta, 628 F.2d 915, 918-19 (5th Cir. 1980). Pursuant to the procedure used by numerous courts in such cases, certain factual issues and mixed questions of fact and law inherent in the balancing test were submitted to the jury through interrogatories. See Schneider v. City of Atlanta, 628 F.2d 915, 919, fn.4 (5th Cir. 1980)

The jury found that the plaintiff's criticisms of Hayden for alleged false overtime charges and manipulation of the work schedule were only personal complaints and not matters of public concern, and therefore did not constitute speech protected by the First Amendment (Interrogatory No. 2D). While these answers are not binding on the Court, the conclusion reached by the jury is supported by the overwhelming weight of the evidence. Consequently, the Court finds that plaintiff's criticisms did not constitute speech protected by the First Amendment. Garza v. Rodriguez, 559 F.2d 259 (5th Cir. 1977); Megill v. Board of Regents of the State of Florida, 541 F.2d 1073 (5th Cir. 1976).

While the above threshold findings by the Court and the jury would be dispositive of the plaintiff's First Amendment claims, we must proceed further with the analysis of the record in view of the possibility that the Court may be in error in its classification of plaintiff's speech as unprotected by the First Amendment. Such an assumption would require us to apply the proper balancing test to the facts of the case. In doing so, the Court finds the following language in Pickering, supra, 391 U.S. at 569-70, 88 S.Ct. at 1735, instructive:

The statements are in no way directed toward any person with whom appellant would normally be in contact

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