August 2010

Alabama Supreme Court

•  Fair Dismissal Act/Nonprobationary Status

Franks v. Jordan, --- So.3d ---, 2010 WL 2663099 (Ala.Civ.App. Jul. 2, 2010), cert. denied (Aug. 6, 2010)        

      We first reported on this case in the April 2010 edition of Court Report. After multiple requests for rehearing, the Court of Civil Appeals issued a final decision on July 2, 2010 in favor of the college, a decision which was virtually identical to its April 2010 decision. The employee appealed to the Alabama Supreme Court, but the court declined to review the case on August 6, 2010 and the decision will stand.
      This employee worked continuously for various colleges in the postsecondary education system from August 2002 to August 2007, but did not work for a single college for more than three years.  After working for almost three years for the last college, he was notified that he would be nonrenewed. He filed a direct appeal with the chief administrative law judge claiming that the college had improperly denied him a hearing pursuant to the Fair Dismissal Act. The ALJ ruled that he had not achieved nonprobationary status and was not entitled to the protections of the Fair Dismissal Act. The employee appealed to the circuit court which determined that the employee did not have to work for a single two-year institution to be covered by the Fair Dismissal Act. The college appealed.
      The Court of Civil Appeals initially ruled in favor of the employee in Franks v. Jordan, --- So.3d ---, 2009 WL 4110758 (Ala.Civ.App. Nov. 25, 2009). The court compared the language of the Teacher Tenure Act which required employees work for three consecutive years for the same school system. The Fair Dismissal Act had no such limiting language. Additionally, the Teacher Tenure Act required that the work be consecutive while the Fair Dismissal Act did not.  Therefore, the court held that there was no indication that the legislature intended employees to work for the same two-year college for three consecutive years to receive Fair Dismissal Act protection. 
      The college asked the Court of Civil Appeals to reconsider its ruling and the court reversed its earlier holding. On rehearing, the court considered the definition of “employing authority” as used in Ala. Code §36-26-101. The “employing authority” is the one which has the duty to evaluate the employee, the authority to reduce his probationary period and the right to terminate the employee. The employee argued that the “employing authority” was the state Board of Education, but if that were true, he would have no protection because the state board was not an entity covered by the Act.  Holland v. Pearson, 20 So.3d 120 (Ala.Civ.App. 2008) (employees of entities not listed in Ala. Code §36-26-100 are not covered by the Act). The court determined that the legislature could not have intended this result, therefore the state board could not be the “employing authority”. Therefore, based on the rules of statutory construction, the court could not read the Act to permit employment stints to be combined from college to college.
      As an example of why this would be an unjust result, the court reasoned that an employee could gain nonprobationary status at College A and then be hired by College B and automatically gain nonprobationary status even though College B had no opportunity to assess the value of the employee.  Similarly, if the employee worked for two years at College A and then a third year at College B, the employee would automatically gain nonprobationary status without College B having a three year period to evaluate the employee.
     Based on these findings, the court held that employees start a new probationary period upon their hire by a different employing authority. Accordingly, the employee did not work for a single college for more than three years, and therefore was not entitled to the protections of the Act.

Eleventh Circuit Court of Appeals

• Rehabilitation Act/ Corporal Punishment & Abuse

T.W. v. School Board of Seminole County, Fla., 2010 WL 2572532 (11th Cir. Jun. 29, 2010)

      This case involved whether a special education teacher violated a disabled student’s right to be free from excessive corporal punishment or discriminated against him because of his disability. After multiple diagnoses, the 14-year old student was diagnosed with autism and placed in the teacher’s autism class. The student had multiple behavior problems including difficulty following rules and completing his work and class activities. The student was violent and threatening and had a history of making false allegations against the staff.  However, the teacher also had a history of parent complaints that she cursed at her students, called them names, struck students and used improper physical restraint methods.
      The teacher was accused of repeatedly improperly restraining the student, including forcing him face down on the ground, sitting on him and pulling his arms behind his back because he disobeyed her. She also called him names, attempted to provoke him and cursed at him.  While the student did not suffer any serious physical injury, there was evidence presented that the abuse exacerbated his disability.
      The student sued his teacher and the board claiming they violated his constitutional rights and discriminated against him in violation of Section 504 of the Rehabilitation Act. The trial court ruled in favor of the teacher and board, and the student appealed to the 11th Circuit.
      The court first addressed whether the board or the teacher violated the student’s constitutional right to be free from abuse or excessive corporal punishment. To find a constitutional violation, the court noted that the teacher’s actions had to be extraordinary and conscience-shocking.  Although sympathetic to the student, the court determined that the teacher’s actions were not “so brutal, demeaning and harmful as literally to shock the conscience of the court.” Id. at 11.  Accordingly, because the teacher’s actions did not violate the student’s constitutional rights, the board did not either.
      The court next addressed whether the board discriminated against the student because of his disability in violation of Section 504. The student claimed that the board intentionally discriminated against him when it hired the teacher who had been previously accused of abusing students with special needs. He also claimed that the board was liable under the respondeat superior theory, the theory that the employer is liable for the actions of its employee. As to the first claim, the court found that the board investigated the claims made against the teacher and was unable to substantiate them. For this reason, the board had no reason to believe that she would violate the student’s constitutional right to be free from harm.  As to the second claim of respondeat superior, the court found that while there was evidence that the teacher disliked the student, there was no evidence that it was based solely on his disability as required by the statute.  Accordingly, the board could not be found liable on this theory and the court affirmed the dismissal in favor of the board and the teacher as to all claims.

• Title VII/Race & Gender Discrimination

      In this case, the plaintiff sued the board for race and gender discrimination and retaliation after it failed to promote her to four administrative positions. The trial court ruled in favor of the board as to three positions because they had not been filled and as to the fourth because the board presented legitimate, nondiscriminatory reasons for hiring a male candidate. The plaintiff appealed.
      The 11th Circuit agreed that the plaintiff could not establish discrimination or retaliation for those positions which the board did not fill. As to the fourth position, the board presented evidence that the selection committee did not think the plaintiff was the strongest candidate and that another candidate was better qualified. The 11th Circuit agreed with the trial court that those were legitimate, nondiscriminatory reasons and that the plaintiff failed to show that they were untrue. Accordingly, the court upheld judgment in favor of the board.

Case of Note

• Reduction-in-Force Litigation  

      AASB’s Legal Assistance Fund has agreed to support a pending case that argues layoffs due to a “reduction in force” are not subject to the hearing and appeal requirements of the Fair Dismissal Act, and by implication, the Teacher Tenure Act.
      Reductions in force, or RIFs, are unavoidable reductions in the workforce that are based on limited, statutorily specified grounds, such as a decrease in student enrollment and a shortage of revenues. The Fair Dismissal Act requires arbitration hearings and mandates continuation of pay for terminated employees during the appeals process. While the FDA is case-specific, RIFs are universally applied using objective criteria such as seniority or job classification and generally not based on some allegation of poor performance or some other reason particular to the individual employee.
      In early July, the Alexander City Board of Education followed its policy and declared a reduction in force that resulted in 11 paraprofessional layoffs based on seniority. The RIF was declared because of exigent financial reasons. Each employee was notified of their right to a hearing before the school board. Three of the affected staff requested additional hearings under the Fair Dismissal Act. Research led the school board to believe the FDA doesn’t apply to RIFs. AASB’s LAF supports that interpretation and agreed to support the case.
      The Legal Assistance Fund was created in 1980 to assist AASB members involved in court cases of statewide significance and common interest to school boards. The LAF Board of Trustees, made up of school board members, unanimously decided to fund the Alexander City Board of Education v. Rogers, Russell and Smith case filed in Tallapoosa County Circuit Court on July 20.

— Jayne Harrell Williams

Jayne is with the law firm of Hill, Hill, Carter, Franco, Cole & Black in Montgomery, Ala.

info@alabamaschoolboards.org

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