McKey v. August et al

Filing 107

ORDER AND REASONS granting 102 MOTION to Stay Proceedings to be re-opened upon proper motion by the parties following the conclusion of the criminal proceedings that have been instituted against her. Signed by Judge Martin L.C. Feldman on 8/23/2017.(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SUSAN DILLARD MCKEY

CIVIL ACTION

v.

NO. 16-13642

ROBERTA ZENO AUGUST, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiff’s motion to stay proceedings
pending the conclusion of state criminal proceedings.

For the

reasons that follow, the motion is GRANTED.
Background
This civil rights lawsuit by a former employee of St. John
the Baptist Parish Library concerns allegations of reverse racial
discrimination

and

deprivation

of

continued

family

health

insurance coverage without due process of law.
In early July 1986, the Library Board hired Susan Dillard
McKey to work as an Assistant Director at the Central Library.

In

2008, Ms. McKey was relieved of her responsibility for supervising
the library branches in Reserve, Garyville, and Edgard.

In 2009,

Ms. McKey was relieved of the responsibility for tracking and
1

handling the Library’s fixed assets, at the request of the Library
Board’s auditor. In 2013, Ms. McKey was relieved of her supervisor
responsibilities over the Technical Services Department.
As of September 23, 2013, Ms. McKey alleges that she was a
member of the Louisiana Parochial Employees’ Retirement System and
had over 33 years of creditable services in the retirement system
and that, as of that date, she effectively retired by opting to
participate in the Deferred Retirement Option Plan pursuant to
La.R.S. 11:447. She alleges that her entry into the DROP program
had been approved and, “[a]t the time of her retirement, the
Plaintiff

had

met

all

of

the

eligibility

retirement pursuant to La.R.S. 11:441.”

requirements

for

She further alleges that,

as of September 23, 2013, she acquired a vested property right in
and

to

her

retirement

benefits,

including

continued

health

insurance coverage. 1

Ms. McKey alleges that the Library Board’s Policies and Procedures
Manual states that: “The Library participates in the health, dental
and life insurance program offered by the St. John the Baptist
Parish Government for all regular full time employees and their
dependents.... The insurance benefit is paid at a rate of 100% by
the Library for regular full time employees and for retired
employees who qualify for retirement under the Parochial Employees
Retirement System.”
2
1

Roberta Zeno August was hired by the Library Board as the
Director in 2014.

On January 29, 2015, Ms. McKey completed a form

describing her job duties and the amount of time spent on each
task.

During the week of April 27, 2015, Ms. August met with Ms.

McKey over three days to discuss her job duties and role as
Assistant

Director.

On

April

29,

2015,

Ms.

August

held

a

“continuation meeting” with Ms. McKey to review the job description
of

Assistant

Director

responsibilities.

and

the

position’s

duties

and

That same day, Ms. August demoted Ms. McKey

from Assistant Director to Acquisitions/Cataloger Librarian.
After going home early, Ms. McKey returned to the Library on
April 29, 2015 and was captured on surveillance video removing
items between 8:30pm and 8:50 pm.

It was discovered that Ms. McKey

had removed physical documents from her office and apparently also
had deleted files form the hard drive of her computer and her home
directory on the Library’s server.
After being demoted, Ms. McKey never returned to her position;
rather, on May 4, 2015, she requested and was granted leave under
the Family Medical Leave Act.
notice

of

her

intent

to

effective August 21, 2015.

That same day, Ms. August gave

resign

as

Director

of

the

Library,

On May 7, 2015, Ms. August wrote Ms.

McKey, requesting the return of documents that she was recorded
3

removing from the library.

On May 13, 2015, Ms. McKey returned

some, but not all, of the items she had taken from the library.
On May 19, 2015, Ms. August called Ms. McKey several times to
arrange a meeting with her and Houston and to ask questions about
the files taken from her office and deleted from her computer.
Ms. McKey said that she would not attend the meeting without
counsel if Houston was present.
the phone went “dead.”

The last time Ms. August called,

Ms. August called Ms. McKey again, but she

did not pick up.
On May 27, 2015, Ms. August sent Ms. McKey a letter notifying
her of her termination.

No one recommended to Ms. August that she

terminate

employment.

Ms.

McKey’s

Ms.

August’s

reasons

for

terminating Ms. McKey were set forth in the May 27, 2015 letter.
The letter stated that Ms. August had “discovered most of the files
in [McKey’s] office were empty and files on the computer [she was]
assigned were deleted,” and that “the removal of those files was
a

violation

of

policy

that

prohibits

the

removal

property without authorization of the director.”

of

library

The letter

recounted Ms. August’s efforts to have Ms. McKey return files and
answer

questions

concluded:

about

the

files

she

deleted.

The

letter

“[g]iven [Ms. McKey’s] actions and your failure to

discuss the removal and deletion of the files, you are being
terminated from the St. John the Baptist Parish Library System.”
4

On August 5, 2015, Ms. McKey was arrested by St. John the
Baptist Parish Sheriff’s Office. On December 1, 2015, the District
Attorney for the 40th Judicial District filed a bill of information
charging Ms. McKey with one count of second degree injuring public
records; the bill of information was later amended to include two
counts of attempted simple criminal damage to property and 51
counts of injuring public records, each charging instances of Ms.
McKey damaging computer files.
On August 5, 2016, Ms. McKey sued Roberta Zeno August, St.
John the Baptist Library Board of Control, and St. John the Baptist
Sheriff’s Office. 2

Ms. McKey alleges that Ms. August, an African-

American, is liable under 42 U.S.C. § 1981 for creating a hostile
work environment and discriminating against her based on her
Caucasian race, culminating in her wrongful termination. Ms. McKey
also alleges that the Library Board was liable under 42 U.S.C. §
1983 for violating Article I, § 10 and the Fourteenth Amendment of
the

U.S.

Constitution,

Article

I,

§

23

of

the

Louisiana

Constitution, and Article I, § 2 of the Louisiana Constitution by
denying her continued family health insurance coverage allegedly
promised to her.

After the Court granted

St. John the Baptist

Library Board of Control’s motion to dismiss the plaintiff’s

On October 3, 2016, Ms. McKey’s claims against the Sheriff’s
Office for false arrest and imprisonment were dismissed.
5
2

Section 1983 claim based on a Fourteenth Amendment protected
property right to continuing health insurance benefits as one who
retired, the Court granted the plaintiff an opportunity to amend
her complaint, which she did.

In her amended complaint, McKey

made allegations against Ms. August, in addition to the Library
Board, for the denial of a right to continuing health insurance
benefits; she also asserted a claim against both defendants for
violations of Louisiana state contracts law (a claim she had
previously abandoned).
The Library Board moved to dismiss the amended complaint
against it and August joined in the motion to dismiss insofar as
the plaintiff alleged claims against her based on a right to
continued health insurance benefits.

After initially granting the

motion to dismiss the plaintiff’s amended claim based on her
purported Fourteenth Amendment right to continued health insurance
benefits,

(see

Order

and

Reasons

dtd.

5/3/17),

the

Court

reconsidered its ruling pursuant to Rule 54(b) when it determined
that, accepting all of the allegations as true, Ms. McKey had
stated a plausible claim for relief.
7/6/17.

See Order and Reasons dtd.

The defendants have since filed a motion for summary

judgment on liability as well as a motion for summary judgment on
damages. The pretrial conference is scheduled for August 31, 2017,
and the jury trial is scheduled for September 18, 2017.
6

The

plaintiff now moves to stay this case until the state criminal
proceedings against her have concluded. Ms. McKey’s criminal trial
date is December 18, 2017.

I.
A civil plaintiff who is also a criminal defendant has both
a Fifth Amendment right to silence and a due process right to a
judicial determination of her civil action.

Wehling v. Columbia

Broadcasting Sys., 608 F.2d 1084, 1087-88 (5th Cir. 1979).

To

inform its discretion to stay civil proceedings pending resolution
of

criminal

proceedings,

a

court

generally

considers

these

factors:
1) the extent to which the issues in the criminal and
civil cases overlap;
2) the status of the case,
defendant has been indicted;

including

whether

the

3) the plaintiff’s interest in proceeding expeditiously
weighed against the prejudice to the plaintiff caused by
a delay; and
4) the private interest of and burden on the defendant;
5) the interest of the court and the public interest.

See Lodge v. Boyd, No. 11-1257, 2011 WL 4727863 (E.D. La. Oct. 6,
2011)(citation omitted).

7

Ms. McKey urges the Court to stay this action pending the
outcome

of

her

criminal

December 18, 2017.

trial,

which

has

been

scheduled

for

She submits that issues in the criminal case

and this one overlap; not only has she been charged with two counts
of attempted simple criminal damage to property and 51 counts of
injuring public records, but a criminal trial date has been set;
both

she

and

the

defendants

have

an

interest

in

proceeding

expeditiously, but not at the expense of her Fifth Amendment right
against

self-incrimination.

defendants’

stated

reason

Ms.
for

McKey

firing

underscores

her

was

that

that

the

she

took

documents from the library in violation of library policy, and
that a full and proper prosecution of all of her claims here
require

her

testimony

regarding

this

stated

reason

for

termination; testimony regarding the same facts at issue in the
pending criminal proceeding charging her with injuring public
(library) records.
Urging the Court to deny the plaintiff’s motion to stay, the
defendants downplay the overlap between the civil and criminal
matters, to the point of distortion.

The defendants’ “stated

reason for demoting McKey ha[s] nothing to do with McKey’s alleged
damage to property or injury to public records,” they argue on the
one hand, but then go on to concede on the other that the defendants
intend to offer evidence regarding library records and files being
8

taken or deleted by Ms. McKey.

The Court declines to indulge in

the defendants’ semantics game in the face of the plaintiff’s Fifth
Amendment

right

against

self-incrimination.

What

is

more

concerning to the Court is defense counsel’s representation that
Ms. McKey has offered testimony about “most” of these issues and
that she has done so without exercising her Fifth Amendment right
against self-incrimination; they offer no citations to the record
in support.

This Court’s own review of the record shows precisely

the opposite.

The most critical omission from the defendants’

submission is any citation to Ms. McKey’s deposition testimony,
perhaps because it undermines their argument: beginning on page
216, line 23, Ms. McKey invokes the Fifth Amendment in response to
questions about the documents she is alleged to have taken (by the
library

in

support

of

its

stated

reason

for

terminating

her

employment) and charged with injuring (by the state authorities in
the pending criminal case).

Finally, the defendants fail to

persuade the Court that they will be burdened or prejudiced by the
delay.
The plaintiff has persuaded the Court that proceeding to trial
on her civil case before the pending criminal proceeding has
concluded

implicates

her

right

against

self-incrimination.

Accordingly, IT IS ORDERED: that the plaintiff’s motion to stay is
hereby

GRANTED.

The

case

is

hereby
9

stayed

and

closed

for

statistical purposes, to be re-opened upon proper motion by the
parties following the conclusion of the criminal proceedings that
have been instituted against her.
New Orleans, Louisiana, August 23, 2017

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

10