Findings of Fact and Conclusions of Law Before Hon. Sam C. Pointer, Jr.

    IN TITE DISTRICT @URT
NORTTTERN DISTRICT OF ALABAMA

WESTERN DIVIS ION

ltAGGrE S. BOZEMAN, ) CV-87-P-225L-W
)

Plaintiffr ) Tuscaloosa, Alabama
)

vs. ) August 31 r 1988
)

PICKENS COUIITY BOARD OF ) 12135 P. 01.

EEITCATION, et ;t1. r )

)

Defendants. )

_)

FINDIIIGS OF FACI AI.ID CONCLUSIONS OF LAI{
BEFORE HON. SAII{ C. POINTER, JR.

APPEARANCES T

FOR TIIE PLAINTIFF: HON. JOE R. WHATLEY, JR.
Attorney at Law
Fifth Eloor-TitIe Bldg.
300 21st Street Nort,h
Birmlngham, AL 35203

FOR THE DEEENDN,ITS: HON' RAY WARD
Attorney at taw
2020 University Boulevard
P. O. Box 55
Tuscaloosa, AL 35402

COURT REPORTERs Penny L. Enoch
325 Federal Courthouse
1729 Flfth Avenue North
Birmingham' AL 35203



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F?tsDrl{Gs or'FAer AnD'eoNeDusrol{s -ot -pAr

THE @URT: The Court will nc,r, dlctate flndlnge of

fact and concluslons of law. These findlngs of fact are based

upon the evidence thatr s been presented in trial today. The

evidence consists of the testlmony of a number of persons,

elther in person or W deposltion. A number of exhiblts have

also been tendered and received by the Court.

This case is a lawsuit brought by Maggie Bozeman agalnst

Pickens County Board of Educatlonr its superlntendcnt and

mernbers. Mrs. Bozeman complains, in egsencer about the

failure of the defendants in 198{ and thereafterr to relnstate

or reemploy herr or at least grant her some hearlng regardlng

relnstatement or reernpl.oyment. She asserts that the fallure

of the defendants to do that violated her rlghts under the

Fourteenth Amen&nent.

I will now go through a chronology of events. Most of the

matters presented to the Court are not ln dleputer a few

matters are ln dispute. Thelr howeverr ilr€ largely matters

relating to constructlon and interpretat,ion of events as

dlstlngulshed from direct or contradictory evldence.

ltaggle Bozeman was an elementary school teacher ln the

Pickens County Board of Educat,ion school system for

approximately twenty-five years. In 1979, she was convicted

following a jury trial of voter fraud concernlng a Democratlc

prlmary runoff electlon. The essence of those chargee wae



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that she had been lnvolved ln castlngr herself or through

othersr lllega1 ballots.

Inmedlately folloying her convlctlon, the superintendent

of the Board of Education suspended her subject to a

notificatlon of potential terminatton and hearlng. The Board

of Education approved the glving to Mrs. Bozeman of that

notlce. Wrltten notice wae glven to her pursuant to Alabama

State lm of the proposed cancellation of her €mployment. The

law of the State of Alabama regarding tenured teachere

prescrlbes a variety of steps and rights that affcct such

terminatlons. The terminatlon notlce gtven to her advlalng

her of her right to appear and contest that propoaed

terminat,ion listed f ive itens as the basls for the proposcd

cancellation.

The first of these was her convictlon of thls felony for

which she had been sentenced to four years imprisonment. Item

Number 2 in that notice related to her alleged refusal to

follorp instructions regarding signing in on a daily basls at

her school. Item 3 related to her alleged failure to folltr

requlrements regarding turning in of weekly lesson plans.

Item 4 related to her alleged 'allure to submlt plans

regarding her continuing educational and professlonal

developnent. Item Number 5 related to her alleged

insubordlnatton 1n failing to follow the lnstructions of her

princLpal and asslstant superintendent relatlng to Items 2, 3



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and 4.

ltlrB. Bozeman recelved that notif lcatlon. She flled her

notlflcatton that she deslred to have a formalr op€D hearlng

regarding those charges. Prior to the schedullng of that

hearing, it was agreed betneen l,lrs. Bozeman on the one hand

and the defendants on the otherr that the hearlng would be

conEtnuedr that she would be placed on a one-year leave of

absence pending her appeal of the convictlon, and that if her

convlctlon rlas upheld ln State and Federal courtr she would

reslgn voluntarily from her positlon as a teacher.

She dld appeal frorn the convlction. No rullng ras madc on

that appeal durlng the ftrst year of thie leave of, absence.

Accordlngly, in 1980, a reguest was made to grant her an

addltional one-year leave of absence, again, pending the

resolution of appeals. regardlng the convlctlon and on the

basis that if the convlctlon was affirmed, she would

voluntarily resign.

In 1981 , her conviction was affirmed by the Nabana Court

of Criminal Appeals and rehearing rdas denied. The Alabama

Suprcme Court, llkewtse, denied a revim of her convlctlon.

In November 1981, the United States Supreme Court declined to

grant a writ for certioraril and accordlnglyr all dlrect

appeals had been conpleted. fn December 1981, the Board of

Education notified Mrs. Bozeman that ln view of the completion

of these appealsr wlth the convictlon rerrnainlng outstandlng,



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she was reguested to submlt the reslgnatlon she had trlce

earller prqnised to glve when those events occurred.

When she falled to respond affirmatively with an

acknowledgrnent of or cpnsent to the resignatlon, the board

then notified her that lt was scheduling a formal hearing on

the 1979 letter respecting her proposed cancellatlon of

employment. She was afforded the rlght to be present. She

did not make any forrnal request at that time to be heard at

the scheduled heartng, but the board apparently treated hcr

L979 request for a hearing as still tn effect, and went

fonrard ln January 1982 with a hearing as directed by thc lma

of the State of Alabama for tenured teachers. Mrg. Bozeman

did not appear in person or by representatlve at that hearlng.

The only evidence presented to the board then wag that

presented by or on behalf of the superintendent and conslsttng

of certaln documentary errldencer dlong with testlmony glven by

the assistant superlntendent. By this tlmer the

superintendents ln the system had changed so that the then

incumbent superlntendent was not the one who had made the

carller re@mmendatlon as to cancellation.

!lrs. Bozeman has testified that notwithstandlng the

rejection by the United States Supreme Court of the petltion

for certiorari, she and her advisors were still contanrplatlng

further legal efforts to set aslde or vacate the convlctlon.

She dld not, however, at that time or at any subsequent timer



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advlse the Board of Educatlon that she planned to take further

stepe to set aslde that convlction.

After hearlng the matters presented ln the January 1982

meeting and which addressed each of the five charges, the

Board of Education voted--apparently unanimously--to follow

the recommendatlon of the superlntendent and to cancel her

employment wlth the Board of Educatlon. !lrs. Bozeman dld not

take any appeal from that actlon pursuant to the Alabarna

Tenure Law.

fn late 19827 llf,s. Bozeman waa employed by the Board of

Educatlon for an adjolnlng county and she rematned as a

teacher in Ehat system for approximately five years, reslgnlng

frorn that position voluntarily after the conpletton of the

186-87 school year. She had recelved tenure in that other

system prior to her voluntary resignatlon.

!lrs. Bozeman dld, ln fact, in 1983, have filed on her

behalf a habeas corpue actlon in Federal court seeking to

vacate or set aside that that convictlon. fn spring 1984 r the

United States Dlstrlct Court for the Middle Dlstrict of

Nabana granted that petition for habeas corpusr and in an

optnlon concluded that the convlction should be set aside and

that the evidence was insufficient as a matter of law to have

justified a jury ln convictlng her of the offenses wlth which

she had been charged. The Court also concluded that the

nature of the instructlons given to the jury at the tlme of



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her trial would have permltted the jury to have returned a

verdlct of guilty upon the basis of charges not contained ln

the lndtctment.

In August 1984r dD attorney for lrlrs. Bozeman sent a letter

to the Board of Education asklng for her reinstatement

follorlng this 'leave of abeence' as it was descrlbed in the

letter. The letter noted that the charges had been dlsmissed.

The board at its lts next meeting consldered that requestr rDd

correctly noted that she was no longer on a lleave of, abscncer

as was reclted in the letterl but insteadr had had her

employment rights terminated and canceled as of January 1982

follorlng thls hearing.

It may here be noted that the lan of the State of Alabama

perrnits a leave of absence to be granted for only hro

consecutive years, and that thts was the basls on which the

board--at least ln part--had concluded back in December 1981

that the matters had to be resolved at that tlmer and that she

could not continue to be kept on a leave of absence basig.

The board, in its August 1984 meetingr authorized lts

attorncy to respond to thls letter from Mr8. Bozemanr s

attorneyr and such a letter was sent. That Letter simply

reclted the fact that, she had not been on a leave of absence

for the last several years, but lnstead, her emplryment had

actually been terninated and canceled pursuant to ALabama law

back in 1982? January of that year. The board did not glve



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Mrs. Bozelnan notlce that it was golng to constder thls ratter
requcst frqt her attorney or take any action upon it. She dld

notr and her coungel dld not at that time or at any subsequent

time, request any hearlng by the board on her relnstatement or

reemployment, and none was ever volunteered by the board

itself.

In late 1987, the present actlon was comlnenced ln Dlstrict

Court in the Northern Dlstrict of Nabana. A number of

charges were ralsed in that complaint. Several of thoger

howeverr have been dismlssed and dropped as recltcd W the

Court at the outset of this hearing.

The essentlal ccnplaint of the plaintiff aB reflncd le

that in belng denied reenployrnent or relnstatement ln 198{ and

subsequent years, and in belng denied any hearlng on such a

request, the board has vlolated her rights under the

Fourteenth Amen&nent. The major basle for that argument and

contentlon ls the invalidation of the convlctionr whlch was

one of the five ltems on whlch ehe had been terminated back ln

1982. Mrs. Bozcman never made any fornal application for

€nployment or reemplqrment. The only request, baslcallyr that

hae been nade was that of her attorney in August 198{ asking

for reinstaternent followlng the "Ieave of absence' as it was

described incorrectly ln that letter.

Among the conclusions the Court reaches is the concluslon

that the cancellation ln January 1982 wosr in all respects,



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proper under Alabama and Federal Iaw. There has been no

evidcnce to show that that was invalld ln any way. The

ptalntlff has tndlcated dtsagreement factually, at this tlmer

wlth Charges 2 through 5 as contalned tn the origlnal 1979

notification letter.

It does appear that as to Count 2 -- or Charge 2 ln that

letter -- namelyr the one relating to fallure to obey

instructions regarding sign-lns on a dally basis -- that the

princlpal canplaint that had been raised agalnst lilrs. Bozeoan

regardtng those matters had beent fot the most partr

satlsfactorily resolved prlor to the writlng of the Norreobcr

L979 letter.

She has likewise, in her testlmony, denled that she had

refused to subrnit plans for contlnuing educatlon and lesson

plans. There hae been contrary erridence subrnltted here ln

court to lndlcate that she had failed to do that after proper

instructions. The Court ls not here called upon to resolve

that dlspute or those dlsputes.

Those dlsputes as to whether she had or had not falled to

obey dlrectlons and follm lnstructions and policies regardlng

slgn-ins, lesson plans and continuing educatlon plans were

onea that would have been proper for resolution by the Board

of Educatlon in January 1982. ljlrs. Bozernan dld not choose to

appear at that hearing and presenE any matter for the Boardr s

consideratlon back at that tlme. Although sketchy, the



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evidence presented to the board at that time regardtng those

countg rould have justifled, ln the absence of other erridence,

the board reaching a conclusion that she had vtolated those

requlrements as contained in Charges 2 through 5.

It is undtsputed that as of January 1982, the convlction

which was Charge I in the notlflcatlon letter, had been

affirmed W the appellate courts ln Nabama and had kreen

allowed to stand by the Supreme Court of the United States and

that there was no further court action pending at that tlmer

and that the board was not advlsed of any pendtng or

antlcipated court action. The cancellatlonr thenr of thc

arrangement and of the plaintlffr s rlghts under the Tenurc Act

as of January 1982r \r€r€ not ln violatlon of the plalntlffrs

rights under elther Alabama law or under Federal

constttutlonal law.

As lndlcated, the prlmary thrust of plalntiffr s posltlon

ln this case -- presumably in recognition of the valtdlty of

the actlon taken tn 1982 has been directed to\rards the

fail,ure of the board to eruploy or reinstate or at least grant

a hcarlng for reinstatement or reemployment ln 1984 and

followlng. It is important, hcrpever, to note that number otr€r

no hearlng was ever reguested.

I suppose the platntiffr s argunent is thatr

notuithstanding the absence of a requestr the board was

somehor obliged to offer Such a hearing, at least if tt was



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not inclined to grant her reinstatement. I flnd no basls

under Federal constltutlonal law for saylng that any such

offer of a hearlng--in the absence of a request for one--is

mandated by constltutional rlghts at leaet in the context of

this situation.

There isr I think, horever, a nore fundamental problem

that flaws the posttlon of the plalntiff in this case.

Counsel have been qulte candld ln their memorandum that, thls

case does present a rather unique legal problem. The

concluelon I reach ls that the plalntlff as of 1984r August

1984 and thereafter, had no property or llberty rlght with

respect to employment or reemployment or reinstatenent frm
the Board of Educatlon. She wasr for all lntents and

purposes, in the same poeitlon as a new appllcant for

employnent, one who was not an employ€€r one for whom State

law provided no property rlghts or rlghts to hearings, and

indeed, a pergon for whqn there was no legitimate exlnctatlon

of a property rlght.

There are occasions in which courts have found a property

rlght to exlst such as would entail due process concerns, even

ln the abgence of formal State law. Those, however, have been

in situations in which by virtue of circumstances there was at

least a reasonable expectatlon of continued emplqlment or

reemployment. Her€r there was no such legitlmate expectation

of ernployment or reemployment. The request for leaves of



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absence had been granted durlng the maxlnum perlod of time

allorcd by State Iaw. A hearlng for cancellatton of tenure

wag scheduledr and on proper notice, one waa held and the

plaintiff declined to partlclpate in that hearing.

The charges before the board at that tlme lncluded not

only thls charge relatlng to the convictlon that was later set

aside, but to essentially three other charges. The evldence

concernlng those three other chargea wag, or could have been,

placed ln dlspute before the Board of Educattonr but lt wae

not. It was essentlally a one-slded presentatlon bccauac of

the decllnatlon of l,trs. Bozeman to partlctpate ln that

hearlng.

I need not place thls dectslon on the fallure of IlrB.

Bozeman to, in effectr ablde by the contract she had made wlth

the board - narnelyr that in conslderatlon for the granttng of

two consecutive years of leaves of absence she would

voluntarily reslgn lf her convlctions were afflrmed. She

failed to live up to that agreernent that she had nade, or at

leaet she decllned to formally acknowledge that which ln turn

proptGd the hearing in January 1982.

I do concluder slmpty and finallyr that the board dld not

vlolate her rights ln 1984 or thereafter in the context and

clrcumstances of thls case. Judgrnent will be entered ln favor

of the defendants and against the plaintiff, costs wlll be

taxed agalnst the plalntiff' but not attorneyr s feeg.



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I should note that there were two or threc addltlonal

dcfcnacg ralscd by the defendants. One ls a contentlon that

thlr actlon ls barred by lachesl that lgr by a delay ln fillng
of the actlon. I deny that speclal defense, but I do note

that the delay tn fillng nay have aggravated the problanrs of

retention of evldence. Indeed, thig ls the problen thatr a

been pronounced tn the trial of thle caae ln whlch documents

that apparently exlsted back ln 1979 and probably sttll

exlsted ln 1982, apparently have been mlsplaced or destroycd

and not avallable ln 1988. Neverthelessr whlle acknorlcdglng

the problem uith lost evidence, f do derry thc spcclat dcfcnsc

baeed on laches.

The defendants ln thelr indtvldual capacttlcg have rataed

the issue of a good falth irmunlty frmr suit. And I conclude

that even tf the plalntlff was correct--whlch I have found

that she la not--ln thls actlon, that the lndlvldual

defendants tn thelr lndlvldual capaclties, although baaed upon

acting on color of lawr would be entitled to a good falth

inmurity defense from any clalm for damages. Itr s clear that

tf thcre waa any constitutional deprlvationr these defendants

had no reason -- back at the time either ln 19791 1980, t8l,

t 82, | 84 and thereafter -- to belleve that there was any

deprlvation of rights as a result of thelr actlong.

Of cours€r a good falth kmunlty defense would not

prohlbltr necegaarlly, lnjunctlve rellef, nor would that



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prohibit a clalm agalnst thern ln thelr officlal capacitlcs or

againet thc Board of Educatlon as an entlty. I do not

bellcve--although lt ts unnecessary to reach thls point--that

they in their offlclal capacltlee, or the board as a suable

entityr would be entltled to clalm the beneflts of the

Eleventh Anen&oent ln thls case aB to her clalms for danages.

In my view, the I.u still has not shon that a Board of

Education ls--ln Alabama, on a county lerreL--entitled to the

protectlon of the Eleventh Amendnent.

I do note one further itemr and that is as to the clalm by

the plaintiff for punttive damages. Erren lf tha plalntlff

were entitled to prevail--which she ls not--punltlvc danagca

would not be awardable agatnst the Board of Educatlonr or

against the lndlvldual defendante in thelr officlal

capaclties. It could only be auarded as to clalms made

agalnst someone ln an lndlvidual capacity. I have already

lndicated that as to any claims Ilke that, there would be a

good faith immunlty defense.

The Court, thenr directs the clerk to enter judgnent as of

thta date ln favor of the defendants dlsmlsslng thls acttonl

taxlng coate, but not attorneyrs fees against the plaintlff.

I belleve that I have correred the essential elenrents and

clalms and any factual dlsputes. Irm not asklng for agreement

wlth the Courtrs decision--certalnly not bV the plalntlff--I

do lrqulrer however, if counsel for elther slde knos of arry



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matters that have been raised and perhaps ought to be resolved

on a fastual or legal basis at this time whlle the mattere are

very clear ln my mlnd before my memory becones lrnpalred

through the passage of time. If counsel knory of any matter of

factual or legal dispute that I havenr t addressed, I would

appreclate your advislng me of that.

MR. WARDI Defendants have none.

MR. $TIIATLEYT Your Honor, I notlced you made no

findings of fact about the request made by Jack Drakc and the

supplemental response on that. I donr t knon ttrat thcrar B arlf

evidence in dispute on lt, but there was such a requaat.

THE @URT: I perhaps shouldr slmply aa an addltlon

to the flndings of fact, note that Mrs. Bozeman--through other

counsel folloring Mr. Seayr e representatlon--nade lrqulry on

one or more occasions after August of 1984 concernlng her

status. So far aa the evidence reflectsr there eaa never any

request for a hearlng on any requested relnstatement or

reempl oyment.

I do treat the requeet made by Mrs. Bozemanr s attorney in

Auguat of 1984--and to soNre degree repeated by subsequent

couneel ln r85--as requestlng reemployment or reinstatementr

and that the board declined to do that. But as I view lt,

there was never any formal application, the matter waa never

presented to the board for decision, and as I vietr lt, therers

no right to a hearing before the Board of Education almply, in



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effectr on behalf of a nes employee. And thatr s the statusr

aa I vter lt, that Mrs. Bozeman wag ln as of that point.

There sae a letter wrltten by the attorney for the Board

of Educatlon in 1985 reepondlng to Mr. Draker s trquiry whlch

indicated that the convictlorr by that time voidedr was the

chlef or prlmary reason for her termination. I do note that

to be ln the letter. That appears to have been counsel! s

lnterpretation of the matter and does not necessarlly ftnd

support in the testimony -- I donrt thlnk lt does - of, other

witnesses who were dlrectly lnvolved ln maklng thc dectslon on

that matter. It is evldentlary ln naturer but not blndlng on

the defendants.

Therer s one other fact that t perhaps should flnd.

Although llrs. Bozeman never formally applied for €mplrynent or

reemployment in r8{ and follmlng--and accordlng to the board,

ne\rer voted on that type of request--one of the board membergr

in depositlonr stated hls opinlon that he and the other

members of the board would not have approved any such reguest.

That simply uas one board memberr s optnion. The matter

actually narer came to that point, as I view lt, but I should

perhaps reclte that that uas so stated.

Any other matter that the Court may not have covered?

Thank you.

(Court adJourned at 1r00 p.m.)



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s.E.Br:-!:car.E

tI certlfy ttrat the foregolng ls a correct transcrlpt

of the excerpts frm the record of proceedlngs ln thc

above-entttl ed matter.

Penny L. Enoch Date