Defendants' Trial Memorandum

    [rcIE S. ruEDrN,

PIAIMIFT,

YS.

PICI(EEI CTIT{ T EX}IE) (I.
EIIDf,TICI{, et al.,

January

a felony

IN IIIE TNIIE) STtrES DISIIBICT (IIlNr
KR IIIE Nf,ilEM{ DIS'IRICT G AI4BTM

UreT'IED{ DIYISI(N

CryIL .&TI(N iD.

cv 8?-P-2251{f

rEFErr)AlfTs.

IEFEf,INIBI IRIAL I}fff,ATIITt

The Plaintiff has three (3) eounts rerraining in her carplaint, having

earlier notified Defendants that she lrculd not be pursuing any claim under

Gunt Four. The renaining three (3) counts ean basically be sunrnrized as

fol lows:

1. That the Defendants intentionally defused to return Plaintiff
to her teaching position in retaliation for her past history of civil rights

and related free speeeh activities.

2. That the Board violated Plaintiffts due process rights when on

8' 1982 it cancelled her teaehing contraet for reasons wtrich included

convietion in state court.

3. That the Defendants have refused to reinstate her to a teaching

position because of her raee.*

Defendants have denied the nnter ial al legat ions of the earplaint.

Further, Defendants have asserted that Plaintiff was given all of her rights

to due process ineluding a eonstitutional due process hearing under the

* It appears Plaintiff

according to her Pre-Trial

is not pursuing a racial discr iminat ion claim

Menprandun.



AI"ABALA TEACHER TENLJRE LAIY. At the t ine sueh act ion was taken by the

Defendants in January of 1982, Defendants fully ccrplied with all proeedural

and substantive due process rights to wtrich Plaintiff was entitled. No

aetion or ehallenge to this caneellation of her teaching contract was ever

fited or nnde by the Plaintiff until the lawsuit ms filed herein in Decenber

of 1987.

There are certain nnter iaI facts wtrich directly contravene the

allegations of the Plaintiff in Counts One, Thp and Three of her ecnplaint.

Initially, Plaintiff confirms in her deposition that her ccrplaint in this

case against the Board of Education and its nBnbers actually pertains to the

Boardrs refusal to rehire you after a court set aside or disnissed her

convietion (Bozenan depo p ?7). Plaintiff further adnits that at this point

in tine, August of 1984, she was ry.! an enployee of the Board (Bozenan depo p

74). Likerise, regarding her carplaint that the. Defendants granted her no

hearing at this tine in August of 1984, Plaintiff candidly adnits that she

did not ask for a hearing before the Board (Bozennn depo p 69).

As to her claim of retaliation, Plaintiff adnits having no evidence of

any of the individual Board Menber Defendants, or forrrer Super intendent

Parham, hav ing voted or fa i led to recannend her reenplo5rrent because of her

civil rights or free speech aetivities (Bozenan depo pp 11-15).

The Board is prepared to defend its position that it gave Plaintiff atl

of the substantive and procedural due proeess rights to whieh she was

ent i t led at the t irne that i t cons idered and then subsequent ly determined to

eaneel her teaching contraet under Alabrrs law. The ALABAtrVIA TE&Iffi, TEIIURE

IAIV provides a rather extensive set of due process rules wttich a board of

2



education mlst strictty follow to terminate a tenured teacher. See 516-24-1,

et seq., 19?5 AIABA0IA @E. Likervise, the @nst itution provides that

trbefore a person is deprived of a protected interest he or she mlst be

affordedtheopportunityforsqrekindofahearing.''@'

401 U.S. 3?1; Board of Regents v. Roth, 408 U.S. 564 (19?2). A elose

examinat ion of the operat ive facts in this case as hereinaf ter set out wi il

elearly show that the Plaintiff was extended all of her due proeess rights

both from a eonstitutional and tenure law standpoint. the deeision to cancel

her contract was nade on January 8, 1982. Plaintiff adnits she dld not

attend the hearing held on that date by the Board of Educatlon under advice

of counsel (Bozernan depo p 49).

In August of 1984, Plaintiff had no federally proteeted interest in her

erploynent wtrich urould nnndate the Defendants to offer her sorTE kind of

hearing. She was not an enployee. There was no.contract or agreerlEnt with

Defendants that Pla int i f f would be -reenployed should she prevai I in any

appeal or attaek on her eonvietion. It has long been held that property

interests are not created by the @nst i tut ion but rather are created and

their dinensions defined by existing rules and state law, Board of Regents v.

&l!, 408 U.S. 564', 577. Plaintif f points to no statute, Board poliey or

rule wtrieh seeured her interest in reenploynent in August of 1984. There is

no doubt that the tine of her termination in January of 1982 that all of her

pending appeats had been denied and that she had no appeals or challenges

pending in either state or federat eourt (Bozenan depo p 52). In faet,

Plaintiff eonfirnBd that she gave no notice to the Board of Education at the

tinB her contract was caneelled in January of 1982 that she even had any

3



other plans to challenge or appeal her eonvietion (Bozenan depo p 56).

Plaint i f f s inply has establ ished no basis for any claim against the

Pickens Oounty Board of Education. I\ruo things that the Plaintiff atterpts to
gloss over in this ease are (1) the fact that there were valid other reasons

present for her terminat ion and (21 that she did subrni t a condi t ional

resignation should her appeals be denied, wtrieh resignation was accepted by

the Board. 516-24-12 provides the nBthod by which a tenured teacher nay

caneel his or her contract. Resignation is clearly contenplated by this

statute. The effeet of such a resignation on the tenure (property) rights of

the teacher are shown in the case of Alabanra Association of School Boards v.

@, 492 So.zd 1013 (Ala 1986) wtrerein the Suprem @urt stated: '$Ie note

that the only instance where notice and an opportunity to have a hearing need

not be provided to a tenured teacher is wtren a teacher voluntarily cancels

her own contraet pursuant to Code 19?5, 516-24-11.'' Walker, at p 101?. In
the ease of (1) the other reasons p-roffered by the Board in its charges

letter to the Plaintiff of Novenber 6, 1979, renerved Decenber 15, 1981,

Plaint if f u,as charged with various acts of negleet of duty and

insubordination. At the hearing of January 8, 1982, Ptaintiff failed to
appear to refute these charges. Under Atabrna law, 516-24-9, 19?5 AIABAI/A

CCDE' Plaintiff was required to contest the eharges, otherwise the decision

of the Board rrculd by law becqre final. Plaintiff should not now be able to

foree the Board to relitigate the sarrE issues wtrich she ehose not to

challenge in 1982. As to (21 her resignation, Plaintiff suhrnitted the sane

r{



voluntarily, under no duress or pressure frqn the Defendants, and with full
adviee of her attorneys. Ttre conditions surrounding the resignation were

fulfilled wtren at the expiration of her leave of absence, all of her appeals

had been denied and she had no appeals pending in any state or federal eourt.

Such resignation nnots any question as to wtrether she was entitled to

reinstatenent or a hearing in 1984, regardless of the validity of her

conviction. She nakes no allegation or claim, as none could be, that any of

the Defendants participated in or procured her conviction. The use of the

convict ion as a basis, in part, for her terminat ion was proper and certainly

within the grounds provided by the tenure law for caneellation of a tenured

teacher I s contraet. See 516-24-8.

The burden here is on the Plaintiff to prove that she was disnissed for

constitutionally inpermissible reasons, Sinderrnann v. Perryr 430 Fzd 939 (S

Cir 1970). This is not a balaneing of interests,case sueh as was addressed

in the ease of Pickering v Board of Education, 391 U.S. 563 (1968).

Plaintiff was not dignissed in whole or in part for exercising any of her

const i tut ional r ights.

Likarise, the burden shifting test enunciated in Mt. Healthy City Board

of Education v. Doyle, 429 U.S. 274 (1977) does not fit the facts here.

Absent a showing of retaliation, the sole question is whether the Defendants

ean violate the due proeess rights of the Plaintiff wtren they reasonably rely

in part and in good faith on a state court felony convietion wtrich years

later is shown invalid. Plaintiff offers no case to support her claim.

5



PEIS

Plaintiff was a tenured teacher in the Pickens County school system

hav ing taught there s inee 1947 wi th her npst recent ass igrrrnnt at the

Aliceville ElenBntary Sehool beginning with the 19?0-?1 school year. As with

all teachers' Plaintiff had eertain responsibilities wtrich included

requirenBnts of having to sign in with the pr incipal each day, having to

provide the principal with weekly lesson plans, and further having to provide

the pr incipal each year wi th the teacher I s profess ional developnent

(cont inuing educat ion) plans.

In her last year of teaching, Plaint i ff fai led to neet these

responsibilities even after direet counseling and instructions fran her

supervising principal, her assistant-superintendent and finally, the

super intendent h insel f .

In the case of the s ign-in problen, the pr ineipal on rpre than just a

couple of oceasions had to warn the Pl-aintiff that she was failing to sign in

as the other teaehers did. Finally, the principal had to involve the

superintendent wtto on at least two or mcre oeeasions provided verbal and

written warning to the Plaintiff, including a threat of possibte termination

if she did not follow the directions of her principal and follow the nonnal

sign-in proeedures. It rvas at this tinB that Plaintiffrs AEA representative,

Becky Niera, had to becqre involved because of the seriousness of the

problan. Plaint i f f uIt inntely began to s ign in aecording to procedure but

only after these nurrErous warnings, threats and eonferenees.

Plaint i f f also fai led or refused to submi t weekty lesson plans to her

principal. Again, this was a requirenent of eaeh teaeher with Plaintiff

G



being the only teacher who had any problens in not providing these lesson

plans eaeh week. Plaintiff was instrueted by the prineipal on rrDre than one

occasion to nnke sure that her lesson plans were in eaeh week but she

cont inued a sporadic ef fort at carpl iance.

The final area where Plaintiff did not comply with the normal rules

applieable to all teachers was in the area of professional development. These

rules aetually eame from requirements of the State Department of Education.

Each teaeherrs professional development plans had to be submitted annually to the

central office through his or her supervising prineipal. Plaintiff was advised both

by her principal and the Assistant Superintendent, Linwood Holloman, of her failure

to comply. Such failure or refusal was not an isolated event.

It was during her last year with the Pickens County school system that

Plaintiff was arrested and convieted in the Pickens County Circuit Court of a

felony offense involving voter fraud. On November 6, 19?9, the then

Superintendent, William Carpenter, reported to the Board the many problems that

he, Assistant Superintendent Holliman and Principal Rice had experienced with the

Plaintiff during the past year and that now she had been eonvicted of a criminal

offense involving a felony. The Board voted to hold a hearing on these charges

and Plaintiff was notified by eertified mail of the charges and the hearing under

the provisions and in aeeordanee with the terms of the ALABAMA TEACHER

TENURE LAW, 516-24-1, et S€9., 1975 ALABAMA CODE. Rather than proceed

with a hearing, Plaintiff requested a leave of absence without pay while she

appealed her conviction. This request was made pursuant to S16-24-13, 19?5

ALABAMA CODE. She further agreed to resign her teaching position if her

'7



appeal was denied. The Board accepted this request for leave and eonditional

resignation with the proviso that the leave of absenee would not exceed a period

of one (1) year.

One year later, Plaintiffrs appeal was still pending and she again renewed her

request to the Board for a leave of absence with notice of a conditional

resignation under the same terms and conditions as her first leave. The Board

again aeeepted this request with the same one (1) year limitation.

Towards the end of this second yearts leave of absence, Plaintiffts appeal to

the Alabama Court of Criminal Appeals was denied. A petition for certiorari to

the Alabama Supreme Court was denied, as was a petition for eertiorari to the

United States Supreme Court. Based on this information, the Board then requested

Plaintiff to confirm her resignation. Plaintiff would not do so and it was the

Boardts decision to proceed with a tenure hearing. Plaintiff was again notified of

the Boardrs intention to hold a hearing on the caneellation of her contract.

Notice again followed the strict reguirements of the ALABAMA TEACHEB

TENURE LAW. Plaintiff was in attendanee at the Board meeting in Deeember of

1981 when this matter was brought back up. At that time, a hearing was set and

announeed for January 8, 1982, and Plaintiff responded in the open Board meeting

that rfshe would be at the hearing with her attorney.rr Plaintiff did not provide

any written notice of an intention to contest the hearing as is required by the

tenure law.

The Board met on January 8, 1982 to hold the hearing. Plaintiff did not

appear nor did any attorney or other representative appear on her behalf. The

Board proceeded to take evidence on all the charges and after the close of the

evidence voted unanimously to eancel Plaintiffts teaehing eontraet. On that same

I



date, then Superintendent Parham notified the Plaintiff in writing of the Board's

decision. No subsequent appeal or ehallenge to this action was taken by the

Plaintiff. Plaintiff admits that both at the time of the Deeember, 1981 Board

meeting and the January 8, 1982 hearing, she had no appeals or challenges to her

eonviction pending in any state or federal court. Ptaintiff further admits that

neither she nor anyone on her behalf notified the Board, its superintendent or

attorney, of any further appeal or challenge being made of her eonviction.

In August of 1984, Superintendent Parham received a letter from Attorney

Solomon Seay which stated that Plaintiffts eriminal convlctlon had been reversed

and that she wanted to return to her teaching job from her leave of absence.

The Board met on August 20, 1984 to diseuss this letter at its regul,ar Board

meeting. Plaintiff was in attendance at this same meeting. The matter was

discussed in open session and the Board unanimously authorized the Board attorney

to respond to the letter. At no time did Superintendent Parham offer any

recommendation to employ the Plaintiff. The Board's attorney notified Attorney

Seay by letter of August 22, 1984 that Plaintiff had no such leave of absence

pending and that Plaintiff had been terminated under the ALABAMA TEACHER

TENURE LAW in January of 1982. A year later, Attorney Jack Drake of

Tuscaloosa made a similar inquiry of the Board regarding Plaintiff and her former

enployment. The Boardrs attorney notified him in writing of the Boardrs aetions

under the tenure law. The Board heard nothing further on this matter until served

with the lawsuit in this ease.

Since the 1982-83 school year, the Plaintiff has been enployed by the Sumter

County Board of Education as a teacher. She gained tenure as a teacher in that

system. Her salary in that system, particularly since 1984 had been more than it

would have been with the Pickens County Board of Education. Ptaintiff

voluntarily retired from her employment with the Sumter County Board of

Edueation in 1987. She admits that there was no reason to prompt her retirement

and that the same was indeed voluntarv on her oert- 9



IMUT'NITY AND DAUAGES DEFENSES

A. Good Faith - Qualifled Imrmnity:

The individual Defendants have all affirmatively pleaded in this ease a

qualified or good faith immunity to the claims of the Ptaintiff. Ptaintiffts claims

include allegations of intentional retaliation and wanton eonduct on the part of the

Defendants in terminating her and in failing to rehire her. tvhen questioned as to

what evidence she had by way of either statement or written documentation that

any of the named individuat Defendants acted against her because of her eivil

rights activities or her exercise of her rights of free speeeh, Plaintiff candidly

admitted that she had no such evidenee. Defense counsel carefully went through

the same questions regarding evidence to support her allegations against each of

the named individual Defendants and Ptaintiff consistently answered trnoner

(Bozenran depo pp 11-15). In faet, Plaintiffs only evidenee to support her claims

against these individual Defendants was their particul,ar vote not to rehire her in

August of 1984 (Bozeman depo pp 70-771. No such vote was even taken.

The law of qualified immunity has recently been addressed by the United

States Supreme Court. Basically it provides that government officials performing

discretionary funetions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known, Harlow v.

Fitzgerald. 45? U.S. at 818 (1982). The test called for is an objeetive one. The

court in Harlow specifically deleted any subjeetive element from the test for the

applieation of immunity. The court defines the viable portion of the test saying

"[q]ualified immunity would be defeated if an offieial knew or reasonably should

to



have known the action he took within his sphere of official responslbllity would

violate the eonstitutional rights of the [plaintiffl." !gg[9! at 815. The Supreme

Court further refined this standard in Davis v. Scherer. 104 S.Ct 3012 (1984) when

it held that the objective reasonableness of the Defendantfs eonduet measured by

reference to clearly established law is the only 'rcireumstaneetr relevant to the

issue of qualified immunity.

Thus, Plaintiff must show that the law violated by the Defendants was

clearly established at the time of their alleged wrongful actions. Plaintiff offers

no evidence to support her claim of retaliation nor any evidence of any intentional

or wanton act on the part of the individual Defendants. Her claim ls one of a

violation of due process rights. Due proeess is an illuslve concept, its acts and

boundaries are undefinable, and its eontent varies according to specific faetual

context, Hannah v. Larche, 80 S.Ct 1502 (1960). The unusual nature of the facts

involved here dernonstrate there is no frclearly establishedrr standard by which

Defendants could measure their conduct.- It is and was entirely reasonable for the

Defendants to eonclude that Plaintiff had no job for her to come back to in

August of 1984. Plaintiff admits she was no longer an employee of the Board at

the time she sought reinstatement in August of 1984 (Bozeman depo p 741.

Plaintiff was at the meeting when the letter of her Attorney, Solomon Seay, was

discussed, yet she made no statement or took no position regarding the same.

Further, neither she nor her attorney ever requested that the Board hold a hearing

to determine if she should be reinstated (Bozeman depo p 69).

It must be remembered that the superintendent did not make a

recommendation for reenrployment of the Plaintiff in August of 1984. Without this

reeommendation, the Board eould not have employed the Plaintiff. See 516-8-23,



1975 ALABAMA coDE; Also, Hembree v. Jefferson county Board of

Education, 337 So.2d 9, 12 (Ct of Civ App 19?6).

B. Eleventh Amendment Imrnrnlty:

The Pickens County Board of Edueation as an ageney of the State of

Alabama elaims immunity under the Eleventh Amendment of the United States

Constitution. In determining whether or not the Board of Education is entiued to

such immunity, the Supreme Court has stated that:

"Whether a Board of Education is to be treated as an
arm of the State partaking of the Staters Eleventh
Amendment tmmunity or ls instead to be treated as a
munieipal eorporation or other political subdivision to
whieh the Eleventh Amendment does not
extend...depends, at least in part, upon the nature of
the entity ereated by state law.rr Mt. Healthy City
Board of Education v. Doyle, 429 US 274.1Fz79rF-ljFlV7t.

The State of Alabama equates sehool boards with the state for purposes

of tort liability under state law. The Alabama Supreme Court has so stated that

county boards of education rrpartake of the Statets irhmunity from suit to the

extent that the legisl,ature authorizes." Hutt v. Etowah County Board of

Education. 454 So.2d 973 (Ata 1984). Further, the Supreme Court has stated:

"[A] county board of education, white not an
immediate agency of the State, acts in public and
governmental capacity and therefore is not liable for
torts of its agents and employees, while so
engagedr...its funds are State funds.rt Sims v. Etowah
Countv goard of Educ BS? So.2d i-910,-i3f6-(mffi

C. Punitlve Dameges:

The Plaintiff claims punitive damages but offers no evidenee which

would support a claim for such damages. The eourt would have to find that the

individual Defendants were motivated in their deeisions by some evil motive or

r2.



intent, or, further, that their decisions involved a reckless or callus indifferenee

to the federally proteeted rights of the Plaintiff. See Smith v. I{ade, 461 U.S.

30 (1983). As earlier shown, Plaintiff admits she has no evidence of I
documentary or statement nature against any of the individual Defendants which

would show that they have been motivated against her beeause of any exercise of

her constitutional or federally proteeted rights. There simply is no evidence upon

whieh sueh damages can be predieated.

OF COUNSEL:

RAY, OLMR, WAnD & PARSONS
2020 University Boulevard
Post Offiee Box 65
Tuscaloosa, Alabama 35402
(205) 345-5564

RESPECTFULLY SUBMITTED BY,

r3