Plaintiff's Pre-Trial Memorandum

    IN THE UNITED STATES DISTRIET COI'RT
FOR THE NORTHERN DISTRICT OF AI"ABA}TA

WESTERN DIVISION

IIAGGIE S. BOZEI'IAN,

Plaintiff,

v.

PICKENS COUNTY BOARD OF
EDUCATION, et al.,

crvrL AerroN No.

c5t87-P-2251-l{

(:

Defendants.

PI.AITTTIFF' S PRE!.TR"TT. UEI,iORAIIDT'I'I

1. I}flTRODU TTON

plalntift subnlts this pre-trlal lcuorandun in support of,

her clai[s.
ale as follors:l

have violated Plalntllf's rlght to
Plaintlff,'s claius

1. The defendants

sgbstantivo and procodural due Procesa ry tcruinatlng hcr and

thon refusing to reinstate her slthout a hearing shen they

learned that the priuary basis for her teruination was voLded'

2. Thc defendants have vlolated plaintlff,s rlghts under

tlre Flrat and Fourteenth Anendnent by rcfuaing to reinetate her

I Plaintif,f earlier agreed that her f,ourtlr clain would not
b€ pursued or -incfuala i.n tire-iie-Trial Order. Slnce there sil1
be no pre-Triaf'b-"-a.r, pi"t"tiff notes this aqJreercnt_ so that tlre
court wilr ue'-awi-re-dnit it need not consider the crain. Also,
as the facts have developei,- lfiintiffs second and third claiue
are eaa€ntlallY the sane.



after they learned that the prinary basis for her tetmination was

voided.2

2. STATEMENT OF FACTS

Plaintiff uas a long-teru, tenured teacher with the

pickens County Board of Education. By L979 she had taught within

ure plckene county school system for 25 yearE. she is Black.

she has been extreuely active politicatly a8 a leader of tlre

Alabaua Deuocratic conference, a predoulnantly black polltlcal

organization. The dcfendants were sell aware of Bozenan'g

political actlvlty, 18 shown by the excerpts frou dcfendant

parkrs depoeition. Px25. she ua8 not pollticalty allgned with

any of the Board ncnbers, all of, whou have becn whlte' IC' at 34

sl seg.

In 19?8, ghe publicly and actively supported a blacls

candidate to opPose Park, a long-teru uenber of the Board' A8 a

rccult of hcr actlvlty during that canpaigrn Boz.tlan uas charged

rith voting f,raud ln the circuit court for Pickens county,

Alabana. on Novenber 2, Lg7g, she uas found gullty of thoee

charges by a Jury in Pickens county. The defendants then, for

the first tiue, beqran efforts to terninate her. Px1.

2 plaintiff uust concede that so far as she can detennine,
the prinad i"""" -i" tfrfg case is novel. In the words of
defendants, tlitn!3iuary reason't for the taking of plaintiff's
tenured joU wae .-"Jn"iction which has since beeh declared void'
Vyn"" tt.-JonvictLon was aeciirea void, Bozeuan reqlu€sted her Job'
and defendants- refused. For reaEona dlscuseed below' the
defendants have therefore violated the rights of plaintiff'



tL

Bozeuan was found gullty on a Friday. lhe sa1€ day the

Superintendent told her not to return to work because of the

conviction. The following Suesday, November 6, L979, Et 6:30

p.8., the Board held a sP€cia1ly called ueetlng to deal with

Bozeuan in executive seesion. She waa suspend€d fron her tenurcd

teaching poBitlon, and the process f,or teruinating her wag bcgun'

she uas not preaent for the neeting. The only sP€cific rcason

for llre terulnation uas the convlction wlth only a vagu'

rcf€r€nce to ivarious couPlaints concerning llrt' Bozsnan'g

p€rfornanca.n PXi.

The letter notlfylng Bozenan of the propot.d torninatlon

is datcd Noveubcr 6, Lg7g, the saDe day aa the night-tluc

nccting. The tlrst charge uaa her convictlon' PX2

By letter dated Novenbcr !2, Lg7g, Bozenan contiitca'her'

terminatlon. Px3. By lctter dated Novenber 2L, L979, She

requeetcd a one y€ar leave of absence' PX4'

on Noveuber 27, Lg7g, the Board uet ln anotlrrr spoclally

called neeting and granted the request for a on. y€ar lcavc of

absence on tbe condition rprovlded that the Board receive a

condltional resigmatlon lrou her should the conviction be upheld

by the aPPcllate courts.r PX5'

In couplj.ance with the conditlon required by t'he Board,

Bozenan subnitted a condltionar resignation whlch provided aB

follows:

In the unlikely event that IBy f,elony

"ottri"iiot 
is upneta in the Courts of

AI;i;;; - ind in the courts of these United



f

States, please be advised that I will
resign'n position as a teacher in the
Plck6ns county Schoo1 Systeu' If ny felony
cotriition i; reveried, however, r will
lnsist on Dy rights under the tenure lase
of Alabaua is th-ey relate to the discharge
of tenured teachers.

PX6.

By letter dated Decenber 10, L979, the superintendent

acknosledged ttre acceptance of the conditional realgrnation and

approved the leave of absence' Px7'

On Deceuber L7, Lg7g, the Board nunaniuously approved the

continuance of the hearing for I'{aggie Bozeuan baced on hrr

request for a leave of absence and condltional reaignatlon.r

PX8.

AB the oD€-t€af leave of.. abeence ncared an end' tlrc

attornay tor ttre Board yrote tlre attorncy for ttre plaintlft '

px9. In that letter, the Board explained tlrat the rpropocad

cancellatj.on of her contract [uaa] for tlrc prlnary reason that

she had been convicted of a lelony offense by the Pickeng county

Clrcuit Court.n Px9.

The attorrrey rrote directly to ltts. Bozeuan on the saDe

date. pxlo. Again, the only specific reason given tor the

propoaed cancellation uas rthe fact that you had been convicted

by the Pickens County Clrcuit Court of a felony of,fenEa'r LC'

Bozeman requested another leave of absence. PX1l;

on Deceuber 5, 1980, th€ Board uas inforted that Bozeuan

had requested a leave of absence. PX12' On Decenber L5' 1980'

the Board extended that leave of absence through l{ovenber 27,



c"

19g1. PX13. Bozeran rras informed of the extended leave of

abgencebyletterdatedDecemberLg,lgso,frouthe
Superintendant. PX14.

on April 3, 1981, the supdrintendent infotmed the Board

that the Appellate Court had upheld--the
ctrcuit courtTs decision ln finding t'irs'
Uaggie Bozeuan, foruer school taacher'
E iftf of voter fraud' He further infonned
tht -boira that titr ' Ray tlard, Board
attorneyrhadadvisedhinthattheBoard
c""ia n6t, accept trlrs. Bozenan's resigmatl'on
as iiatea ln lier letter requesting a _lcave
o! -abs;". until she ha{ exhausted Ure
appeals process avallable to her through
tite Judlcial sYsteu of Alabana'

PX15. 
.

ByletterdatedNoveubcrll,lgsl,theattorneyf,orthe
Board inf,orued ure attorney for Bozeaan that the sccond onc-y'ar

leave of abgencc wa8 about to expire. Px16. Again, the Board

conf itmed the baeis for the rpropoeed cancallatl'on cftort

contract, the naJor charge being tbat of the felony convlction'i

the letter also confirued an awar€n€sa that Boz€Dan pursuing hef

conviction ithrough tbe Federal court.r Hou€ver, the BOard had

rgi.ven sou€ prellrinar? indlcatlon that it does not wish to

continue this natter further.tr Theref,ore, Bozeuan's reeigmation

walr requested. IC. By Novenber L7, 1981, the attonley tor the

Board had learned that Bozenan uas represented by another lawyer,

r,tr. soronon s6ay, and rd,rote hiu. pxl?. By that point, the Board

had apparently concluded that trno further leaves of abeence' or

extensions thereof, sould be appropriaten'



f

By letter dated Decenber 8, 1981, the BOard thrOUgh its

attorney lnforaed Bozenan that it would ueet on Decenber 14, 1981

and act on her resigmation at that tine' Px18

By lettcr dated Decenber 15, 1981, the defendants notified

ptalntlf! of a hearing to be held on the cancellatlon of her

contract. PX19

on January 8, Lg82, the BOard Det, held a hearing on this

natter, and approv€d the cancellation of Bozenan'g contract.

pX2O. Since the Board was continuing to consider the Lsgue of

the convlction, shich Bozeuan was stitl challengitg, she sau

noUring to be setrrcd by attending that hearing'

T]tre Board lnforued Bozeuan of i.ts decision by letter dated

January 8, 1982, lrou its Supcrintendent' PX21'

Ae--she had previously lnformed the defendants, and as they

uore awar€, Bozenan continued to challengc her conviction through

thc lcdcral court systeu. On April 13, 1984, the Unlted Statcs

Digtrlct court for the [lddle Division of Alabaua granted her

petition lor rrit of habeas corPus and vacated ttre conviction'

PX22. Th€ Court found that there uas trno evidencer to support

the conviction of Bozeuan. ll. at 11' In addition' the Court

held that she wag rtried uPon charges that uere nev€r uade and of

which [she was] never notifled.r Ld. at 22' AccordinglY, on

August 9, 1984, Bozeman's attorney wrote and asked that the Board

return Bozenan to work. PX23.

Ihe Board uet

plaintlff that it was

on August 2L, 1984, wittrout infornLng

then neeting to conEider her request, and

l.r.*.?:. r.A.!.-a,-:.-.r r4.,6



denied her request. PX24.

request to be reinstated.

Excerpts frorn the depositions of the individual defendants

are enclosed as pX25-30. The depositions confirm PX9 that the

prinary reason for the termination rras the conviction which has

now been declared void.

The Court of APPeals

public enPloYer takee away

requireuent ttrat ithe action

No hearing t as held on Bozeman's

has repeatadlY nrled that rhen a

propertY interest, thcre is a

taken is suPPorted ry srrbstantial

3. ARGI,II{ENT

A. Since Due Process Requires that Defendant's
ictton be supported by srrbstantial Erridence,
It Cannot be-based on a Conviction l{hich

(

for Bihl. County, 809 F.2d 1546, 1552 (llth Clr. 1987). Accord,

755 F.2d L492, 1496Ho11ev v. Seninole County School Di'strict,

1499-1500 (1lth Cir. 1985)t Viverette v' Lurleen B' tlallace State

Juniorcotleger587F.2d191,194(5thclr'L979\ir3r!Elggn'&'

Ihgnag, 430 F.2d 852, 859 (stlt Cir' 1970)'

Here, the evidence defendants uEed to support the prinary

reason for the terrnination has been declared void' Therefore' tro

substantial evidence exists to support the deprivation of,

Bozeman,s property interest in her job' AccordinglY' the

property interest should be returned to her'



Thc best known description of due Process is that of

Justice Frankfurter:

The Principle of rrJust Treatnentrl
Inherent in Due Process and Its
Prohibition Against Arbitrary or
Capriclous conduct Forbid Public
gDployers From SuPPortilg the
termination of a Tenured Teacher
tlraad t-rn Voi d Conviction

i[D]ue process,r unlike qoP€ f9?:f tI]:",
fi-irot i technical conception with a tlxed
contcnt unrelated to tiue, place and
clrcunetancea. Expressing as it does ln
iaa uttlr"t. analyiis respect enforced by
ian for ttrat' feeting of Just treatnent
shich hac evolved through centuries of
fi;i;-ADcrican constitutional history and
.iiifizatlon, rdu€ processr cannot be
fieif-Jo"ea siitrin the tleacherous tinite of
any tornula.

the standards of procedural due p5o.ceEa are
no- wooaen abEolules. The sufficiency -of
frocedures euployed- in . anY . P?rti-cular
iliuatlon uust-b€-judged in light of the
piii1.", the su-bJe-ct matter and the
Lirctrustanc€s involvedo -

B.

f'- 341 U.S. L23, L62,

71s.ct.624'643'95L.Ed.8L7(1951)(Frankfurter,J.
concurrlng), qrroted, aEong other-places, in EelghgE,, 809 F'2d

1552-53. In HlEghgE, 809 F'2d 1553, the Eleventlr CLrcult

recogmized ithe versatlle nature of the due procelta rcquircuenti

and quoted Fergruson v. lllronas ' 43O F.zd 852, 856 (sth cir' 1970),

as follows:



The Eleventh Circuit has also

prevents teacher firlng at Public

or capriciousr. HoIleY, 755 F.2d

335 F. SuPP. 1086, 1088 (D. Neb'

(8th Clr. L9721.

FinallYr ES recognized in

852, 857 (5th Clr. 1970):

stated: rDue Process C1auea

university which was arbitrary

L4gg, citing @,
L97Ll , affimed, 467 F.2d 1145

Fercruson v. fhonas, 430 E'. 2d

lhe subetance of due procesa requires
tfra€ no lnstructor who haE an exP€ctancy ot
continued enplolment be deprived of that
cxp--tancy by iere cereuonial coupliance
uith Procodural due Procesa'

Here, Bozeuan hae experienced groesly untair treatnent.

First, she suffered a felony conviction ln Piclccns Cotulty and a

prieOn sentencc shen there was rno evidencer to convlct her and

when she wag ln fact tried upon charges urat u€rc n.ver uade and

of which she uaa n€v€r notified. Defendants concede that they

relicd uPon the conviction as the prinary retson for plaintlff's

teruinatlon. Nevertlreless, when they u€re inlorucd that Ure

conviction had been volded, they ref,used to take any action' even

grrantlng plaintiff a hearing, to correct their oun inJustlce'

under the circrrnetances, def,endants have f,alled to provide

plaintlff with juet treatuent, have acted arbitrarily and

capriciously, and have atteupted to rely upon nera cereuonial

coupliance sith procedural due Process'



f'

c. Slnce the Prinary Reason Given for
Bozeuan's Tetmination is Void, Due
Procass Requires that She be Reinstated'

Both the Flfth and Eleventh circuits have hcld that

substantive due Procostl prohibits the deprivation of a property

intereet for reaeone other than thoee given'

In Kelly v. SnLtlr , 764 F.2d L4L2, 1413 (1lth cir. 1985),

the court uadc it clear that one states a claiu for violatLon of,

substantive due proceas shen he is deprived of, a propcrty

lntercst rfOr an luproper uotive or . . . for reagons otlror tlran

thosegiven....i

This Court has recognlzad tlrat tlre
,da;iivation of a property interegt for an
inpiopoi uotLve ana by !e1ls tha! {arcl
pr.tl-xto"i, arbitrary ?nd capricioustr
conltitutcs a subetantlve duc pT9-c'gs
vloiatLon. Eglfn [v' Citv of Galneevllle] '
ose-F.za t13281 at-titV I(1lth cir' 1e82)l'
gg3 ilgg ioane-v. Callisburg, 511 F'2d 633'
639 (sth Clr. 1975) '

Rarnett v. Houcinc 'uthority of the C{tv of 'tlanta ' 7O7 f'2d

1571 , L577 (l1tlr cir. 1983). There' the court afflnued a

Judgnent for a plalntiff on a substantive due proceee clain where

there uas evidence that the reasons olfered for plaintlft's

termination u€re pretextual and the real reason waa to uake

plaintiff a scapegoat for mountlng prrblic Pressure'

lfhe Pifth circuit has accepted a siuilar subetantive due

process theory in Russerl v' Harrison ' 736 F'2d 283'- 287 9l ggg'

(sth Cir. 1983), where the Court held:

10



Despite plaintiffs' failure to elaborate,
horevir, lL is clear that they are claj'nlng
dcprivation of substantive due process
baaed on the fact that their contracts uere
teruinated while the contracts of other
caployeea uere naintained, all in abecnce
of a-ny rational plan to explain thls
actlon.- This is all that is requlrod'

IC. at 288 o .

g6r€, the priuary basis for the declsion to tc}lnate

plalntlff uas voided. Nevertheless, defandants rcfueed to

reconsider thcir decision. Since the prluary baclg for the

declsion lc gone, lt logically follows that the tnre reason f,or

t"he terrninatlon was souething . €ls€.

D. fhe Court Should Ftnd that Bozeaan
rat T.rrinated or Not Roinetated
in Vlolation of her Flrst and
Fourteenth Anendnent RLohts-

public off icials cannot uake euplolment deci.ciong for

enployccc like tcachrrs on the basis of, their political actJ.vlty'

E g-, @, LO7 S. Ct. 2891' (1987); Hlf.tr,lllE,, 8O9

F.2d 1555 gl Egg.

In thlg case, when plaintiff requested reingtateuent in

1984, dcfendants knew that the priuary reason for hcr tar:ulnation

had been volded. The court should conclude that the true rea8on

that the def,endants did not sant to reinEtate her uas her

polltical activity in opposition to the Board nenbers.

11



For all of,

entcr a iudguent ln

4. CONCLUSION

the reasons stated herein, the Court should

favor of Plalntiff.

OF COTINSEL:

cooPER, t'tITclI, CRAIIFORD,
KNTKEXDAIJL & WHASLEY

suitc 2oL, 409 t{orth 21st Street
Blruingharn, Alabana 35203
(2osl 32e'9576

CER.TIFICATE OF SERVTCE

Ihercbyccrtifytlratlhavesenredatrtreandcorrect
of Ure foregoing uPon the following couneel of record bY

coPy ot Eng Ec,rslterlrl, r'!M

dcpoeitlng saD€ ln the U' S' l{ail, postage prepaid' on thlg ee

day of / ,,,t , 1988'
J

Ray lfard, Esquire
Ray, Oliver, l{ard & Parsons
P. O. Box 65
tuscalooga, Alabana 35402

Respectfully subultted,