Brief for Defendants-Appellees

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IN lHE UIIIED SIAIrES G,Ftr OF APPEATS
HEI'EIIIE CIRS'TT

cAsE rrD. 88-7612

!&ffiIB S. TZEIGN,

PM;

v.

PICKET{S OC[IWI mnD G EHmmCt{1 €t al .,

M.

CII APPBAL FRCil
lEB TTIITE) SIBtrBS DISIRIEI q,Rtr

FM, THE TWHER{ DISTRICT OF ATEBEIA
TIESIEIII DIVISICI
c\F87-p-2251{

BRITFCRM

RAM0{D E. $BFD
Attorney for OeferrilantsAtr4nlLees
RAtr, OIJIIER, WARD & PARSIiET P.C.

2020 Uninersiq, Borle\rad
hst Offic€ Box 020065

I\rsca1ma, Alabanra 35402{065
(205) 345-556{

I(N-PREFBREC GSE

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particular

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7.

CEAtrTFICEf,E ffi INIERESTED PARtrIES

followirg persons have an interest in the outc.crne of this

case:

Ilcnorable San C. Pointer, Jr.
United States Distr-ict Judge Presidirg
Northern District of Alabana

Maggie S. Bozeman, Plaintiff-Appellant

Joe R. Irlhatley, Jr. - Attorney at Law

Firm of Cootrnr, Mitch, Crawford, Kuykendall & Whatley

IGACP Legal Defense F\:nd and Attorney Sherrillzn Ifill

Pickens County Ebard of Education

Jerry H. Parham, Jack T. Pate, J.V. Park, James G. Nclarul, Nancy
Fair, ard Boyd Edger,rorth

Rapxcnd E. Ward - AttorneY at Law

Firm of Ray, Oliver, Ward & Parsons, P.C.

:.Q c ttl,-,-()

Attorney for Ap6nllees
RAY, OLIVER, WARD & PARSCNS, P.C.
2020 university Boulevard
Post Office Box 020065
Tuscaloosa, AL 35402-0065
(20s) 345-ss64

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SMf,EUEITI RMFDNG PREFERETG

Appellees sr:bnit this ease is not entitled to preference in

processing ard disposition.

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SffiIlr MNDIIG (fRrJ AMIEVT

Appllees do rpt desire oral angunent. the lssues in this atr4nal are

not onplor arra rypellees are of ttre cpinion ttrat oral argtrnent will rpt
o significantly aid ttris 6urt in its onsideration of this case.

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MB[.,E OF @NTE!iEB

CertiEicate of Interestetl Parties

Statement Regarding Freference . . ii
a

Statement

Staternent

Statement

Regarding Oral Argument

of the Issues

of tkre Case

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Course of Proceedi.ngs Below 1'4
Statenrent of the Facts. 5-9
Scotrn or Starrlard of Review. 9

Statement Regardirq Jurisdiction . 10

Strnnary of thre Argtrnent 11

Argunent . .

I. Ttre Pickens County Board of Hucation folloued all
constitutional due process requirements in terminatirq Elrzeman
in 1982 12-13

II. Ebzeman hacl no Sroperty right entitling her to
reinstatement or a hearing in Atrgust of 1984 and thereafter. 14-15

III. Ebzeman concedes there is-no improper or unl-awEu-l
O nrotive behind the Board of Education's decision to terminate her. 16

IV. Bozemanrs resignation becane effective in 1981 and
rnoots any issue relating to her due process rights, if any she had,
in 1984 and thereafter. 17-18

Conclusion. .. 19

Certifcate of Service

(a)
( lr)
(c)

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TBBT,E G CTMtrIOIs

Cases:

Alabana Association of School Boards v. Walker
492 (b. 2d 1013, 1017 (Ala. 1986)

Barnett v. ff:using Authority of the CiL

Bishop v. Wood
426' u.il3al,s $-47 (1e76). . . "

eoei@
@hCir. 1e69)

Boar@
@

O eodale v. ConnecticutL
401 U.S. 371 (197r)

Bozeman v. Alabana
4s4 U.S. 1os8 (1981 )

Bozeman v. State
a. Cr. ApP. 19S1 )

Ex parte Bozeman
401 so. 2d 171 (AIa. 1984)

Hearn v. City of Gainsville
82)..

Holley v. Serninold Coulty School District
755 F. 2d 1492 (11th cir. 198s)

McDonnell Douglas Corp. v. GYeen
411 U.S. 792, aE 804 (19731

Mt. tlealthy City Board of Educat:.gg v. -lqyle
429 U.S. 274 (1977 )... .

Pickering v. Board of Education

Regents of the University of l'Lichigan v. Ehirg
.....

Page

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12, 15

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Sirrlennan v. Perry
ffiir. 19?0)... .... o............ o.... .... o t........

Statutes:

28 u.S.C. sl291

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Page

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s16-24-1, et seq., NABADIA @DE, 1975
ALABA!'IA TEACIIER TB.I[ RE II[{... . . . . ... .. ... .... ..

S 15-24-10(a), ATABAIIA oqDE, 1975.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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S 16-24-1 1, g! s€Q[.7 lrAHAl(A @m, 1975............................

s 16-24-1 3, AIABAMA @DEri 1975. o............ o................... o..
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6, 12

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17, 18

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SMf,EffilTI OF lHE ISSJES

'1. Whether the Pickens Oounty Board of Etlucation violated the due

process rights of Maggie Bozeman in its 1982 termination decision wtren it

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reasonably relied in part and in good faith on a state crrurt felony

crcnviction wtrich was later shown in 1984 to be invalid?

2. Whether Itlaggie Bozernan in August of 1984, o/er two (21 years

after her tenured teaching contracL had been cancelled in January of 19821

had any crcnst,itutional rights entitlirg her to reinstatement as a tenured

O teacher?

3. Whether ttre Pickens County Board of Etlucation did in August of

1984 ard thereafter deny ltaggle Bozeman a constitutional due trrocess right

to a hearing wtren admittedly she was no longer an ernployee of the Board ard

wtren neither she rpr her attorneys ever nnde any request for such a hearing?

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SMf,EI.IEIIT G ME CASE

(a) Course oE Proceedings Below.

A Conplaint vias filed by the Plaintiff, Maggie Bozeman, on December

28, 1987 naning as Deferdants, the Pickens County Board of &lucation along

with a former SuSnrintendent oE Flducation arxl both past ard present Boarrl

menrbers (R1-1 ). Ihe f-ormer Superintendent and Board nembers r^rere srcd

irdividually arxl in their official capacities. Itre Conplaint crcntaj.ned four

crcunts clairning violations of the Plaintiff's crcnstitutional rights in the

O following respects:

(1 ) A clalm for Defendantsr retaliation against Plaintiff for her

invol'rernent in the civit rights nrrvernent in Pickens County, Alabana and for

various occasions of her exercise of her rights to free sSnech,

(2) A claim for Deferdantsr denial of Plaintiff's due process rights

in regards to her tenured teachirg position with the Pickens Oounty Board of

Education,

(3) A cl.aim for Defendantsr improoer cancellation of Plaintiffrs

tenured teaching oontract on January 8, 1982 because of her race, and

(4) A claim for Defendants' crrnspirirg to obstruct justice in

causing the Plaintiff to be crcnvicted of rpter fraud.

Plaintiff sought injunctive relief by way of reinstatement as a tenured

teacher, together with crrnpensatory ard punitive danages (R1-1 ).

Defendants in their Answer generally denied violating Plaintiff's

c.onsE.itutional rights ard further asserted affirmative defenses based upon

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the applicable statute of limitations, an Eleventh Amerxlment immunj-Ly, a

good faith immunity for the irdividual Deferdants, and laches (R1-2).

A scheduling order was entered by the District Court as a result of a

pre-trial crcnference ttrouEh no formal pre-trial Onder was ever entered

(R1-10). At the tirne the case was called for trial on Ar:gust 31, 1988,

counsel for the lnrties net with the District Court, following wLrich in open

court plaintif f aclcrowledged that she r^rculcl not be pursuing her claims

stated in Count Four nor did she have any evidence to suS4nrt her clairns of

racial discrimination under C-ount Ilrree (R3-3).

Plaintiff them crrnfirmed that the "pTimary focus" oE her claim

against thre Deferdants related "to the failure of the Deferdants to reenploy

or reinstate her, or grant her a hearing on reemplolnrent or reinstatement in

1984...ard thereafter" (R3-3 , 4l -

The District Court took both testinronial ard docunentary evidence at

the trial ard further almitted the detrnsitions of the irdividual Defendants
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and plaintiff herself (R3-4r 5). Followirg the close of the eszidence oll

August 31, 1988, the District Court announced its FINDIIreS CF FACT AI{D

C(Jn{CLUSICNIS oE' IAI/V (R2-106). Ttre District court again reiteraterl its view

of the Plaintiff's clairn as being:

The essential ccrnplaint oE the plaintiff as
refined is that in being denied reemplolzment
or reinstate:nent in 1984 and subsequent lears,
ard in being denied any hearing on such a re-
quest, the board has violated her rights wrder
the Fourteenth Anerxlment (R2-1 12).

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More sPecificallY,

cancellation of Bozeman's

the District Court found ard crcncluded that the

teaching contract in January of 1982 " " 'was, in

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all respects, p,roper under Alabana ard Federal law. Ihere has been no

evidence to show that that was invalid in any qray." (R2-112, 113).

Further as to her claim that she was denied due process by not

being granted a hearirq by the Deferdants in 1984 and thereafter, the

District Court found:

It is u'disputed tha! as of January 1982 | the
crcnviction *rich was Charrge 1 in the nctifica-
tion letter, had been affirmed by the atrpellate
courts in Alabana and had been allourcd to stand
by the Suprone Court of the Uniterl States ard
that there was no further crcurt action pnding
at that time, ard that the board was not advised
of any pending or anticipatd court action. Itre
cancellation, then, of the arrarganent ard of
the plaintiffrs riqhts tmder the Tenure Act as
of January 1982, were not in violation of the
plaintiff's rights under either Alabana law or
under Federal cronstitutional law.

As irrlicatal, the F,rimary thrust of Plaintiff 's
trnsition in this case - grresumably in recogni-
tion of the validity of the action tal<en in 1982 -
has been directed towards the failure of the board
to enploy or reinstate or at least grant a hearing
for reinstatcsent or reemployrnent in 1984 and fol-
lowirg. It is irnSnrtant, hor,lever, to note that
nuunber one, no hearing was ever reqr-rested.

....I firxl no basis tnrder Federal crrnstitutional
law f-or sayirg that any such offer of a hearing -
in the absence of a request for one - is mandated

by crrnstitutional rights at leasL in the crcntext
of this situation.

There is, I think, however, a IIDre fundamental
problem that ttat s the position of the plaintiff
in this case. Counsel have been quite cardid in
their mxlcrandr-rn that this case does present a

rather unique legal p'roblem' The oonclusion r

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reach is that the p1aJ.ntiEf as of 1984, Atrgust
1984 ard thereafter, had no property or liberty
right with resSnct tcr enplolment or reemploynrent
or reinstatsnent frcrn the Board of Frlucation.
She was, for all intents ard purtrnses, in the
sane lnsition as a new applicant for anplolzment,
one utro was not an qnployee, one for whon State
law provided no Sroperty rights or rights to
hearings; ard irdeed, a person for whron there
was no legitimate exSnctation of a property right.
(R2-114, 115).

rtre District Court clenied the aff irmatirre defense of laches but

grantal that of good faith inununity to the individual Defendants (R2-117).

In light of plaintiff-Appellantrs repeated reference in brief to this

Court of Appeals of plaintiff's crirninal cr-:nviction beir-rg the "primary" or

,,major,, reason for plaintiff-Appellant's termination, this Court oE Appeals

should note the findings of the District Court as f'ol1ows:

There was a letter vritten by the attorney for
the Board of Education in 1985 res6nnding to
Mr. Dralce's inquiry vfiich indicated that the
conviction, bY-that time voided, was the drief
or primary reason for her termination' I do
note that to be in the letter. Ttrat aSpears to
have been crcunsel's interpretation of the rnatter
ard does not necessarily fird supprt in Lhe

testinony - I dontt thj-nk it does - of other
witnessei wtro rere directly involrred in naking
the decision on that rnatter. It is c,videntiary
in nature, but not bindirg on the deferdants'
(R2-120)

District court entersl j.ts Final Jwlgment in favor of the

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Deferdants on Septernber 1t 19BB (R 1-29). ltre Plaintiff-APPellant filed a

o-timelynoticeofappealonSeptenber2g,lgEB(R1-31).

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(b) Statsnent of the Facts.

plaintiff was a tenured teacher in the Pickens County School System

having taught there since 1947 with her rnst recent assignment at the

Aliceville Elernentary School beginnirg with the 1970-71 school year (R3-11).

As with all teachers, Plaintiff had certain responsibilities virich included

requirements of having to sign in with the principal each duy, having to

provide the prrincipal with weekly lesson plans, ard further havirg to

provide each year for Board sukxnission to the State Department of Eilucation

a professional develotrment plan (R3-24-30).

During her final year of teaching, Plaintiff failed to reet these

restrnnsibilities on several occasions even after direct crcunseling and

instructions frcrn her supervisirq principal, the assistant Superintendent

arxl finally, ttre SuSnrinbendent himself (R3-47, 48, 50-52t 70'72, 79-81 ).

It was during her last )ear with the Pickens County school system

that plaintiff was arrested and convicted in tLre Pickens County Circuit

Court of a felony offense involvirg voter fraud (R3-18). Following her

conviction on llovernber 6, 1979, the then Sutrnrinterdent, William Carpenter'

retrnrted to the Board the rnany problerns that he, assistant Superintendent

Hollcrnan and principal Rice had experienced with the Plaintiff during the

past year and that now she had been crrnvicted of a criminal offense

involving a felony (R3-52). Tlre Board on the recrcrunerdation of the

Superintendent rrcted to hold a hearirg on the followirg changes:

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(1) Your crcnviction by the Circuit Court oE Pickens County, A1a-
bana of a felony offense under the Lar"rs ard Statutes of the State
of Alabama.

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(21 Your failure
regarding signing

(3) Your failure
princitrnl.

to follovr the mles
in at the @inning

to submit mandatory

oll lour suSnrvising principal
of the sckrool day.

r.veekly lesson plans to lour

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(4) Your failure to subinit lour mntinuing education plans to lour
principal as required by the policies of the Pickens County Board
of &lucation.

(5) Insubordination regardirg lour failure to abide by or follow
the directions arrt instructions of lour principal ard/or the assis-
tant Sutrnrintendent regarding the deficiencies described in para-
graphs ttvo, three ard four above- (PX. 1, 2).

Bozeman was notified by c.ertified nail of these drarges ard of a

hearing before the Boar,l wrder the provisions ard in acqcrdance wit'h the

tenns of the ALABAIvIA IEACHER IENURE IA!,I, SS 16-24'1 et _seq. , 1975 ALABAMA

CODE (pX. 21. Rather than proceed with a hearing, Bozeman requesteri a leave

of absence without pay vtrile she appealed her conviction (R3-33). Ttris

request was rnade pursuant to S "16-24-'13, 1975 AIABAMA @DE. She ftrther

agreed to resign her teaching posit.ion if her appeal was denied (PX. 4,6)'

Thre Board accepted this request for leave ard corditional resignation with

the prorriso that the leave of absence r^rculd not exceed a period of one ( 1 )

year (PX. 5, 7).

One year later, P-laintiff's atr4nal was still pending ard she 4ain

renewed her request to the Board for a leave of absence with the sane notice

of a crcrxlitional resignation under the same terms ard crcrxlitions as her

first leave (pX. 1 1 ). Ihe Board again accepted this request with the sane

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one (1) year limitation (PX.12, 13, 14).

Tbwards the enC of this secrcrd year's leave of absence, Plaintiffrs

appeal to the Alabarna Court of Criminal Appeals was denierJ (R3-35). A

petition for a urit of certiorari to the Alabana Supreme Court hias also

denied (R3-35). Bozeman them filed a ptition for a r,rit of certiorari to

the United States SuSrreme Court wtrich was denied on lbvsnber 16, 1981

(R3-3s).

Based on this information, the Board then requested Bozeman to

confirm her crcrditional resignation, given by her as consideration for the

Ieaves of absence Srreviously granted (Px. 18). Ebzeman r*culd neither

confirm nor acknowledge her resignation as a result of wttich the Ebard

determined to trxoceed with a tenure hearing (PX. 32). Bozeman vlas 4ain

notfied of the Board's intention to hold thre hearing on the eancellation of

her crrntract on the sane charTges that had been originally preferred against

her in 1g7g (pX. 19). Plaintiff not-only was notified by the requirxl

certified rnail of the hearing to be held on Janaury B, 1982 but also she was

present at the Board neeting in Decenrber of 1981 when the hearirg v{as set in

open session (PX. 32\.

The Board net on January 8, 1982 to hold the hearirq. Bozeman did

not a64>ear nor did any attorney or other representative ap[Ear on her behalf

(R3-19). Ttre Board proceeded to take evidence on the charges ard after the

close of the evidence voted manfurpusly to cancel Ek)zemanrs teachirg

contract (R3-36, PX. 20). frr that same date, then Sulnrinterdent Parharn

notified Ebzeman in writing oE the Board's decision (PX. 21). It is

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unrefuted thaL no subsequent atrpeal or ctrallenge to this action was q/er

taken by Bozeman or her attorneys.

Bozeman admits that both at the tiine of the Decernber, 1981 Board

meeting ard the January 8, 1982 hearing, she had no atr4nals or challerges to

her crrnviction perding in any state or federal crcurt (R3-36). She further

admits that as of the hearing date, January B, 1982, neither she nor anlone

on fter behalf notified the Board, its Superinterdent or attorney of any

further atternpts to appeal or ctrallenge her conviction (R3-38).

In Ar:gust of 1984t Superinterdent Parham received a letter fron

attorney Solcnxcn Seay wtrich stated that Ptaintiff's crirninal conviction had

been reversed ard that she wanted to return to her teaching job frcrn her

leave of absence (R3-95). Ttre Board net on August 20, 1984 at its regular

Board neeting to discuss this letter (R3-95, 97). Bozeman was in atterdance

at this sanne neeting (R3-38). Itre entire matter !'as discussed in cpen

session, including the fact that there was no perdirg leave of absence for

Bozeman, ard the Board unaninpusly authorized the Board attorney to res;nrd

to gre letter (R3-91 | 95-96). At no time did Superinterdent Parham offer

any reocrrnendation to tkre Board to anploy Bozeman (R3-96 ) .

At no time either before the letter of attorney Seay or after its

consideration by the Board at its August 20' 1984 meeting, did Bozeman or

her attorney request the Ebard to grant her a hearing (R3-39). Bozeman

adrnits the Board has never refused to grant her a hearing regarding her

ernplolment (R3-39).

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TLre Boardrs attorney notified attorney Seay by letter of Argust 22,

1984 that Bozeman hal no such leave of absence trnrding and that she had been

terminated r:nder the AIABAITIA IEACHER Tmfi.JRE IA[rl in January of 1982 (PX. 241.

A yEar later in 1985, attorney Jack kake of I\rscaloosa rnade a similar

inquiry of the Board regardirg Bozeman anil her former enplolment (R3-96).

Ttre Ebard's attorney notified him in vriting of the Board's actions ard

decision relatirg to the cancellation of her crcntract in 1982. Ihe Board

heard nothirg fun:ther on this matter urtil Bozeman filed her Conplaint with

the District Court on Decenrbet 28, 1987.

(c) Scope or standard of review.

Appellees agree with Appellant that ttre stardard of review for the

District Courtrs findings of fact is vrtrether they rtere clearly erroneous and

on onclusions of }aw vlhether they tere- conrect.

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SMf,EIEltI NMFDNG JTIRISIEIIC{

ltre Court has jurisdiction of ttris ap6na1 r-nder 28 U.S.C. S 1291 as

this is an alpeaI frcrn a final julgrent.

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$INiABg OF ME Are(IIIEIIT

The Pickens County Board of Education Srreferred five (5) enunerated

charges 4ainst Maggie Bozeman in 1979, one of wtrich was a state court

felony crcnvictj-on for voter fraud. on Bozeman's request, the Board granterl

her two (2) crcnsecutive one ( 1 ) year leaves of absence to fight her

crcnviction on the crcrxlition that she rapuld resign if the conviction was

upheld. She fully agreed to this. In 1981 her atr4>eals to the Alabana Court

of Criminal Appeals, Alabana Supreme Court

were all denied. Bozeman v. State, 401 So.

ard United States Supreme Court

2d 167 (A1a. Cr. App. 1981 ); D<

o parte Bozemanr 40l So. 2d 171 (Ala. 1984); Bozeman v. Alabama, 454 U.S.

1os8 ( 1981 ).

ttre Board r+ent on to hold a hearirg to crcnsider the five (5)

enrmerated charges after Bozeman r+culd not crrnfirm her agreement to resign.

In January 8, 1982 the Board cancelled her crcntract on these charrges.

Bozeman did not atterd the hearing.

In August of '1984 Bozemanrs attorney wrote requestirg she be

reinstated frcrn a leave of absence. Ttre recrcrd clearly shor,m she had no

Ieave of absence pending and by her om admissions, she was no longer an

employee of the Board. At that time, Bozeman had no crcnstitutionally

protectable interest in ernploynrent with the Pickens County Board of

Education. As such, the Board was not required to reinstate her. Further,

Bozeman was not entitled to a hearing as there is no evidence of any action

of the Board to deny her any cronstitutionally protectable interest. Irlrre

imtrnrtantly, neither Bozeman nor her aLtorneys ever requested a hearing

before thre Board.

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ANHI,IEIW

Ihe Pickens Count Board of Education Jlollovrcd all crcnstitutional due
nn].na IN

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The recrcrd rarequivocally shows ttrat the Board of Eilucation strictly

foltowed the extensive set of due process rules afEorded a tenured teacher

when cancellation of Bozeman's crcntract was conternplated ard then ctrnpleted

in January of 1982. See AIABAIvIA'IEACHER TENURE IAW, 516-24-1 et seq' 1975

ALABAi{A CODE. In following this set of rules, the Board of Rlucation

provided Bozeman with tkre basic, fundanental crcnsbitutional rights she vias

entitled to. See Boddie v. Connecticut, 401 U.S. 371 (1971); Board of

Regents v. bthr 40B U.S. 564 (19721. In l:-act, Bozeman crcncedes here that

the Board of Education folloued the F,roper procedures in the termination

process.

Bozeman next claims a lack of substantial evidence to suS4nrt the

Board's 1982 decision to terminate. Thbre rere five reasons given by ttre

Board to Bozeman for the Sroposed cancellation of her qf,ntract, only one of

which dealt with her felony crcnviction. Yet the evidence before the Board

in 1982 at bhe cancellation hearing vras unq)nbradicted not only of the fact

of the crcnviction but also of the other four charges. At the outset, it is

important to note that Bozeman rade a voluntary decision on the alvice of

crcunsel not to atterd her tenure hearing.
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Asstrning the conviction should be rqrxrverl frcrn crcnsideration, there

is sufficient evidence of insubordination and neglect of duty shornm in the

other four changes to susbain a finding by tl:e Board that Bozeman was due to

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be terminated. Certainly the evidence, unrefuted as it was., was at the very

least of such quantity, quality and r^reiqht "that reasonable and fairminded

men in the exercise of impartial judgment might reach different
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ocnc1usions.''Boei@,411F.2d365,374(5thCir.1969).

Bozeman argues here that the reasons given by the Board of Education

for her 1982 termination lvere rprely trretextual, arbitrary and capricious.

Yet it cannot be questioned here that the Board of klucation did in fact

afford Bozeman "a fair opportunity" to show that the F,roposed drarges filed

_ against her r,uere false arxi nerely pretextual. See l4cDonnell Douglas Corp.
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v. freen,411 U.S. 792, at 804 (1973). She drose rpt to avail herself of

this opportunity.

Bozeman had the burden of proving that she was dismissed for

crcnstitutionally impermissab-Ie reasons. Sirdermann v. Perry, 430 F. 2d 939

(5th Cir. 1970). Itre case here is not a balancing of interests case such as

was ddressed in prcfering v. Board of Edrca , 391 U.S. 553 (1968).
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Eklzeman was not dismissed in v'i"role or in part for o<ercisirg any of her

crcnstitutional rights.

Likewise, the burden shiftirg test enunciated in l{t. Healthy City

Board of EducaLion v. by1e, 429 U.S. 274 11977 ) does not fit the facLs

here. Itrere is nc clairn of retaliation being rnade by Bozeman. Ttre mle

question is wtrether the Board of Eilucation can violate the substantive due
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process rights of Ebzeman when in decidirg to terminate her they reamnably

rely in part and in gooC faith on a state court .Eelony cronviction wtrich

years later

crcunsel for

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the

shown to be invalid. Bozeman offers no case on point anl

Board has found none in his search.

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II. Bozeman had no property right entitling her to reinstabement or a
nearing

The following facts as earlier shovin are unrefuted. In August of

1994, Bozemanrs attorney, Solcnxcn Say, wrote the Board of Education

requesti.ng her return frqn a leave of absence in light of her felony

conviction beirg reversed. Ttre Board of Eilucation in open session, with

Ebzeman present, crcnsidered the letter at its next neeting later that nonth.

Bozeman had no pending leave of absence nor tes she any lorger an enployee

of the Board of Education at that point in time. Ttrere was no tmderstandirg

or agreement with the Board of ftlucation that Ebzeman loints to ufrrich r^rculd

pennit her to return in 1984 as a tenure<l teacher frcrn a leave of absence

that had expired in 1981. Ttre Superintendent for the Pickens County Board

of Education rnade no recqmnendation to the Board in August of 1984t or

thereafter, to anploy Bozeman. Ttre Bogrd did authorize its attorney to

resSnnd to !tr. Seay, wtrich reslDnse !,Jas s provided. I\b request was ever

made by Bozeman or her attorneys for a hearirg either before or after these

events in August of 1984.

Ttre District Court's firdings ard cronclusions on the eirctmstances

existing in August of 1984 are stated as follot^rs:

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The crcnclusion I reach is that the plaintiff
as of 1984, Ar:gust 1984 ard thereafter, had

no property or liberty right with respect to
emptoyrnent or reemplolzment or reinstatement
from ihe Board of Education. She was, for all
intents ard pur6nses, in the sane lnsition as
a new applicant for entrlo1zment, one uLro vras

not an enployee, one for rairom State law pro-
vided no property rights or rights to hearings;
arvl indeed, a person for vtrcrn there was no le-
gitim"te extrnclation of a trxognrty right. (R2-115)

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It is r.,e11 recognized in the crontext of tenure teacher cases that the

teacher has no constitutional right of due process unless he or she has a

property interest in mntinued enplolznrrant. Bishop v. lrlood , 426 U.S. 341,

343-47 (1976\. Likewise, it has generally been held that an interest in

liberty or property must be impaired before the protections of substantirze

due process become available. Regents o.E the University of Michigan v.

Ewing, 474 U.S. 214 (1985).

State law must be examined to determine if Bozeman had a legitimate

entitlernent to her rei.nstatement as a tenured teacher with bhe Pickens

County Board of Education in Ar:gust of 1984. Bishop v. Wood, supra., at

344. On January 8, 'l9B2t Bozemanrs tenure rights and any expectation of

continued enplolmrent were terminated. Ilc atrpeal or challenge to this

decision was nnde. Under Alabana law the decision became final. See

516-24-10 (a) | 1975 ALABAI4A CODE.

It has long been held that prognrty interests are not created by the

Constitution but rather are qreated ard their dimensions defined by existing

rules ard State law. Board of Regents v. bth, supra. Bozeman has shovnr rx:

evidence or indication of any statute, rule or understanding upon wtrich she

could rely for a legitimate claim of entitlernent to crcntinued enploltment.

Without such an entitlement, there is no crrnstitutionally Sxotected prop:rty

interest to serve as the basis oll a due process claim. Board ol Seqents v:

Roth, supra.

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III. Bozeman croncsles there is no improper or unlawful rmtive behind the
Board i

The cases offered by Bozeman in her brief to su[4Drt a claim of

pretext, arbitrariness or capriciousness, all retate to instances uikrere the

employer either manufactured charges to mask the real reasons for the

tenninagion or otherwise improperly dischanged the enployee for exercisirg

his or her crcnstitutional rights.

In Holley v. Seminole County School Districtt 755 P. 2d 1492 (1lth

Cir. i9B5), it was a teacher-crcach being fired after an tnsuccessful effort

to be elected Superintendent. In Hearn v. City of Gainsville, 688 FZA 1328

(11th Cir. 1982), it was a;nrsonnel technician for the city vfrro ran afoul

of his supervisor and was a:<ed under the pretext of a budget cr:tback. And

finally in Barnett v. nrcusing Authority of the City of Atlanta, 707 F. 2d

1571 (1lth Cir. 1983), the enployee was used as a scapegoat for escalatir"rg

pr:lclic pressure being Sxrt on his enployer.

The case here on a;4>ea1 presents none of these situations. It is

perhaps nore irntrnrtant to took at this case for vtrat it is not rather than

for wkrat it is. Ttris is not an unlawful discharge case. Ttris is not a

racial discrirnination case. Ihere is no claim here that the Board of

Education fired Bozeman because of her exercise of any first anendment

rights. And finally, there is no evidence or claim of retaliatory notive

beirg proffered by Bozeman to show the Board of BJucation set out to silence

her criticisn by cancelling her contract.

Bozernan simply has established no basis for a firdirg of improper

nrotive or pretext.

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1y. Bozeman's resignation becane effective in 1981 and noot.,q qIry_Isqqe_
relati

The evi<lence is again urrefuted, and this Court should note, that

Bozeman submitted a onditional resignation in her 1979 arKl 1980 requests

for a leave of absence frqn her tenured teaching position. Such requests

ard crcnditional resignation were fully accrepEed by the Board of Eclucation.

Ttre AIABAITIA IEACHER TENURE IAlal prrovided the rethod by wtrich Bozeman ard the

Board of Education could agree on the cancellation of her G)nLract by

resignation. In s16-24-11t 1975 AIABAMA CODE it provides in part:

"lib teacher, whether in crcntinuing senzice
status or not, shalt be permitted to caneel
his or her crontract during the school tenn
for wtrich said oontract is in effect, nor
for a period of 45 days previous to the be-
ginnirg of such school term, urless such
cancellation is mutq@; - - ."
@

Ttre effect of such a resignation on the tenure (poperty) rights of

Elozeman are ddressed in the case of Alabana A.ssociation of School Boards v.

Walker, 492 b. 2d 1013 (A1a. 1986) wherein ttre SuSxane Court stated, "We

note Lhat the only instance ufiere nctice and an cpportunity to have a

hearirq need not be prrovided to a tenured teacher is whren a teacher

voluntarily cancels her ovrn crrntract pursuant to code 1975 515-24-11."

Walker, at 1017.

The resignation became valid and binding on Bozeman in late 1981 when

al1 of her a64>ea1s, incluling that to tkre Uniled States Supreme Court, were

urrefuEed that the condition of such resignation

all of her appeals had been denied ard she had no

state of federal crcurt.

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exhausted. Again, it is

had been fulfilled, i.e.

atrpeals perding in either

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Itre Board of Eilucation could exterd no further leaves of absence.

Alabana law rtould not permit this without Ebzeman losing her tenure rights.

See S16-24-13, 1975 AIABAMA C0DE.

The District Court determined that it need not base its decision on

the resignation issue (R2-116). Itre widence of the resignation is not in

crrnflict and if nec-essary to the distrnsition of this case, the Board of

Education r^rculd r-uge this Court to onsider the resignation as a valid and

birding agreernent between Elrzeman ard the Board of ftlucation entered

pursuant to 515-24-1 1, 1975 AIABAMA @DE. Again if necessary to the

disposition of this case, the Board r.,rculd lrge this Court to qcnfirm such

resignation ard fird tLrat its effect r^rculd be to noot any due process issues

relaLed to Bozemanrs request for reinstaternent frcrn a leave of absence in

1984 ard thereafter.

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qIr[IIBI(lI

For ttre reasons Srreviously stated herein,

reslnctfully urge that ttris Ootrt of Appeals affirm

juilgnent of ttre District 6urt entered on September 1,

the Ap5nllees rculd

in all resgncts ttre

1 988.

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Attorney gqs {XEllees
RAY, OLTVER, WARD & PARSOT$S, P.C.
2020 Uriversity bulevard
Post Office bx 020065
firscalosa, AL 35402-0065
(20s) 34s-ss64

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RESPECIFULLY SJBMITIM,

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CEstrIFICAf,E OF SER\ITCE

Itre tndersigned as ttre attorney for the Defendant-Aptrnllees hereby

certif ies that he has senred a crcpy of the foregoirg Brief of

Defendant-Ap6nllees upon Joe R. Wtratley of ttre firm of CooSnr, Mitch,

Crawford, Kuykendall a Whatley, Suite 201, 409 t{o. 21st Street, Birmirgham,

Alabana 35203, counsel for ttre otrposing PartY, ard lvls. Sherrilyn A. Ifill of

NAACP Legal Defense E\rndr 99 Hudson Street, 15th Floor, lhw York, t\bw York

10013 by depositirg the same in tkre United States Mail, Sroperly ddressed

with pstalle F,repaid thereon ard proSnrly addressed to them.

Done this the R/4-day of Nhrch, 1989.

rqJttvru u. l.Blu

RAY, OLMR, WARD & PARSOIIS, P.C.
2020 tlniversity Boulevard
Post Offiee Box 020065
Tuscaloosa, AL 35402-0065
(20s) 34s-s564

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