No. __________

IN THE SUPREME COURT OF ALABAMA____________________

Ex parte MARY SIMMONS, DYTISHA H. GOODGAME,and SHEILA WHETSTONE-TUCK, Petitioners

In re

MARY SIMMONS, DYTISHA H. GOODGAME,and SHEILA WHETSTONE-TUCK

vs.

COOSA COUNTY BOARD OF EDUCATION and TODD WINGARD,

____________________

On Petition for Writ of Certiorari to theCourt of Civil Appeals, following

appeal from the Circuit Court of Coosa County____________________

PETITION FOR WRIT OF CERTIORARI____________________

Winn Faulk631 South Perry St.Montgomery AL 36104(334) 356-2926fax (334) 269-5517winn.faulk@gmail.com

Sam HeldmanThe Gardner Firm, P.C.2805 31st St. NWWashington DC 20008(202) 965-8884fax (202) 318-2445sam@heldman.net

i

Table of Contents

Petition for Writ of Certiorari . . . . . . . . . . . . 1

Introduction to the issues and the grounds forcertiorari . . . . . . . . . . . . . . . . . . . . 1

A. Conflict with prior caselaw . . . . . . . . . 4

B. Issues of first impression . . . . . . . . . . 7

Statement of Facts . . . . . . . . . . . . . . . . . . 8

Argument . . . . . . . . . . . . . . . . . . . . . . . 10

Conclusion . . . . . . . . . . . . . . . . . . . . . . 15

Certificate of Service . . . . . . . . . . . . . . . . 16

Appendix: Opinion of Court of Civil Appeals, and orderdenying rehearing

ii

Table of Authorities

Carter v. Baldwin County Board of Ed.,

532 So.2d 1017 (Ala. Civ. App. 1988) . . 1, 3-5, 7, 12

City of Pinson v. Utilities Board of the City of

Oneonta, 986 So.2d 367 (Ala. 2007) . . . . . . . . 15

Clayton v. Board of School Commissioners,552 So.2d 145 (Ala. 1988) . . . . . . . . . . . . 6-7

Ex parte Green, 689 So.2d 838 (Ala. 1996) . . 1-5, 7, 12

Haas v. Madison County Board of Ed.,380 So.2d 873 (Ala. Civ. App. 1980) . . . . . . . 6-7

Ledbetter v. Jackson County Board of Ed.,508 So.2d 244 (Ala. 1987) . . . . . . . 1, 3-5, 7, 12

Ex parte Wright, 443 So.2d 40 (Ala. 1983) . . . . . . 6-7

Fair Dismissal Act, Ala. Code § 36-26-100 et seq. . passim

Ala. Code § 36-26-115 . . . . . . . . . . . . . . . . 2

Ala. R. App. P. 39 . . . . . . . . . . . . . . . . . . 7

1

PETITION FOR WRIT OF CERTIORARI

Petitioners Mary Simmons, Dytisha H. Goodgame, and

Sheila Whetstone-Tuck respectfully request that the Court

review the decision of the Court of Civil Appeals in

Simmons v. Coosa County (No. 2071135, June 19, 2009,

rehearing denied, August 14, 2009), in an appeal from the

Circuit Court of Coosa County. The opinion of the Court of

Appeals, along with the order denying rehearing, is

attached as Appendix A.

Introduction to the issues and the grounds for certiorari

This Petition concerns the “partial termination”

doctrine under the Fair Dismissal Act, Ala. Code § 36-26-

100 et seq. Under decisions such as Ex parte Green, 689

So.2d 838 (Ala. 1996), Carter v. Baldwin County Board of

Ed., 532 So.2d 1017 (Ala. Civ. App. 1988), and Ledbetter v.

Jackson County Board of Ed., 508 So.2d 244 (Ala. 1987), a

non-probationary school system employee is entitled to the

protections of the Act in situations where the employer

seeks to take away some of the employee’s regularly-

scheduled hours of work. Taking away such hours counts as

a partial “termination” that is reviewable under the Act’s

procedures. That is true, whether the employee is working

2

all of her hours at the same job under a single contract,

or is working multiple jobs under multiple contracts as was

the situation in Green. This is not to say that taking

away some of an employee’s regular work hours is impossible

or necessarily prohibited; it is only to say that an

employee is entitled to review of that proposed action

through the standards provided by the Act.

In this case it is undisputed that the Petitioner

employees are non-probationary employees who are covered by

the Act. It is also undisputed that the Respondent school

board did terminate some of the Petitioner employees’

regularly-scheduled hours of work, hours that the employees

had worked regularly for year after year. The board did

so, without affording the Petitioners the opportunity to

challenge that action under the Fair Dismissal Act.1

The Court of Appeals held that the board’s action was

1 This case arose prior to the 2004 amendments to the Act.These employees’ challenge to the board’s action wasproperly made in Circuit Court, under the procedures asthey existed at the time. Under current law, a challengeto the denial of a hearing in a “partial termination” casewould most likely arise through a “direct appeal” underAla. Code § 36-26-115. Similarly, as discussed below,issues like this can arise in proceedings before HearingOfficers, as in the companion case of Ex parte Jones (Jonesv. Elmore County), in which a petition for certiorari isbeing filed at the same time as this petition.

3

lawful, despite the “partial termination” doctrine of

Green, Ledbetter, and Carter. The reasoning of the Court

of Appeals was based on the content of the particular

contracts that the school board had written to cover the

hours of work that were terminated. Those so-called

“supplemental” contracts were separate from the employees’

so-called “base” contracts that covered most of the

employees’ work hours. In the “supplemental” contracts,

the school board had written that the hours at issue in

this case were “temporary” and “nontenurable.” The Court

of Appeals, relying on this language, held that the

employees had no constitutionally-protected “property

interest” in the hours at issue in this case; and so, the

Court of Appeals held, the Fair Dismissal Act’s “partial

termination” doctrine did not entitle the employees to the

Act’s protections as to these hours.

This decision, we submit, conflicts with prior

precedent. Alternatively, if existing precedent does not

answer the question here, then there are questions of first

impression. In either event, the issues are important ones

that will affect school employees and school boards

throughout the state, making certiorari appropriate.

4

A. Conflict with prior caselaw

According to the Court of Appeals, these employees had

no Fair Dismissal Act rights under the “partial

termination” doctrine, with regard to the hours that were

taken away from them here, because those hours were worked

under a separate, “supplemental” and “temporary” contract

that did not give rise to a constitutionally-protected

property interest. (Slip Op., pp. 15-17). This conflicts

with prior caselaw in at least two respects.

First, it conflicts with prior caselaw on the “partial

termination” doctrine itself: Ex parte Green, 689 So.2d 838

(Ala. 1996), Carter v. Baldwin County Board of Ed., 532

So.2d 1017 (Ala. Civ. App. 1988), and Ledbetter v. Jackson

County Board of Ed., 508 So.2d 244 (Ala. 1987). That prior

caselaw does not make the applicability of the “partial

termination” doctrine depend on distinctions between “base”

and “supplemental” contracts, or on whether the contract

itself creates a constitutionally-protected “property

interest” in the hours of work at issue. Instead, under

prior caselaw, the rule is much simpler.

As stated in Carter, “We read Ledbetter as including

any reduction in regularly scheduled hours as a partial

5

termination since these scheduled hours constituted the

employee's employment as a whole.” Carter, 532 So.2d at

1019. And in Green, the employees were working under two

separate contracts, one of which was only for a few hours

per week; yet this did not detract from the employees’

protection under the “partial termination” doctrine when

that contract was terminated. Green, 689 So.2d at 839.

The law under Green, Ledbetter, and Carter is simple: a

reduction in work hours, for an employee who works 20 or

more hours per week, constitutes a “partial termination.”

Under these precedents, the actions in this case were

plainly a “partial termination” of the plaintiffs. By

holding otherwise, the Court of Appeals created a conflict

with these precedents.

The decision below conflicts with existing precedent in

a second way as well. That is, the decision allows a

school board to reduce the Act’s “partial termination”

protection for nonprobationary employees who work two jobs

under two contracts (as the employees did in Green) by

writing the contract in a way that denies the Act’s

protections. This conflicts with the principle, from prior

caselaw, that a school board cannot opt out of the

6

statutory employment laws by contract. The rights

conferred by the legislature on school board employees,

being statutory rights, are not something that a school

board can evade simply by demanding that employees “agree”

to give up their rights as a condition of employment. This

principle is established in such cases as Haas v. Madison

County Board of Ed., 380 So.2d 873, 875-76 (Ala. Civ. App.

1980) (Teacher Tenure Law), Ex parte Wright, 443 So.2d 40

(Ala. 1983) (same), and Clayton v. Board of School

Commissioners, 552 So.2d 145 (Ala. 1988) (Fair Dismissal

Act).2 The Court of Civil Appeals has now adopted a

different approach, at least for this particular context,

2 See, e.g., Haas, 380 So.2d at 875 (“[T]he board exceededits authority in joining in the agreement. We so concludebecause although there are no Alabama cases on point, wefind that the better reasoned decisions of other juris-dictions hold such attempted waivers of the protectionafforded by teacher tenure laws as ineffectual on publicpolicy grounds. Similarly, these decisions hold that schoolboards are powerless to modify the terms of the applicabletenure laws.”); Wright, 443 So.2d at 42 (“ordinary contractprinciples do not control when they conflict with theintent of the tenure law.”); id. (“Even if this Court wereto find that the teachers did agree to the new contract, wewould apply the principle that an attempted waiver of theprotection afforded by teacher tenure laws is ineffectualon public policy grounds. Haas [citation omitted].”;Clayton, 552 So.2d at 149 (holding, in reliance on Haas,that a school board could not be allowed to use itsemployment contracts in a way that would “emasculate,”“modify,” or “evade” the Fair Dismissal Act).

7

making the Fair Dismissal Act’s “partial termination”

doctrine a matter that school boards can opt out of, at

will, simply by insisting that an employee will not be

allowed to work more hours unless he or she agrees to

language that will eliminate the statutory protection.

For these reasons, certiorari is appropriate under Ala.

R. App. P. 39(a)(1)(D).

B. Issues of First Impression

If the decision below is not in conflict with what was

already decided in Green, Ledbetter, Carter, Haas, Wright

and Clayton – though we think it is, as shown above – then

there are questions of first impression raised by the

Appeals Court’s novel holding. See Ala. R. App. P.

39(a)(1)(C). Such issues include: “Is a `partial

termination’ reviewable under the Fair Dismissal Act only

if the employee had a constitutionally-protected property

interest in the particular work hours at issue through some

source other than the Fair Dismissal Act itself?” and “Can

a school board limit its statutory obligations under the

`partial termination’ doctrine of the Fair Dismissal Act by

writing ‘contracts’ that purport to declare the particular

work hours at issue to be temporary?”

8

Statement of Facts

The following is a verbatim copy of the Statement of

Facts presented in the application for rehearing:

In addition to the facts stated in the Court’s June 19,

2009, opinion (pp. 1-7), Appellants summarize as follows:

Each of the plaintiffs was a non-probationary full-time

employee within the coverage of, and entitled to the

protections of, the Fair Dismissal Act. That is, each had

worked for more than three years, in a non-teacher and

full-time (i.e., more than twenty hours per week) capacity,

for the defendant school board. They worked as “Aides.”

[C-89 to -90].

Each had a “base” contract entitling her to 30 hours

per week: six hours per day, five days a week. [C-89].

For several years, starting in the 1997-1998 school

year, and pursuant to supplemental contracts, each

plaintiff worked more than those thirty hours. For each

year beginning in 1997-1998 and continuing through 2001-

2002, that is for five years, each plaintiff generally

worked 40 hours per week: eight hours per day, five days a

week. [C-90].

But in September 2002, the Board reduced plaintiffs’

9

hours of work from 40 to 30, from eight hours per day to

only six. The Board took this action without a hearing.

Plaintiffs requested a hearing, but the Board refused their

request. [C-90 to -91].

Examples of the contracts at issue are in the record.

For each plaintiff there is a series of yearly “30-hour”

contracts; each of those expressly includes substantive

provisions of the Fair Dismissal Act. [C-40 to –42; C-52

to –54, C-63 to -65]. For each plaintiff there is also a

series of yearly agreements styled “Temporary Work Contract

– (Considered General Aide Time).” They state:

I agree to work 2 extra hours per day at my regularhourly rate of pay. I understand that this is atemporary agreement, which will last only as long asthe extra work time is needed by the school system,and that the extra hours are non-tenurable. Iunderstand that my regular pay and tenure are basedon my regular six-hour position.

I will not be working more than forty hours per week.

My immediate supervisor, the Assistant Super-intendent of Education, and/or the Superintendent ofEducation will determine assignments for this extrawork time.

[C-46 to –51, C-58 to –62; C-69 to -74].3

3 In the later years, the phrase “my regular six-hourposition” was replaced by the phrase “my regular aideposition.”

10

Argument

The Court should grant certiorari in order to review

the decision of the Court of Civil Appeals. As we have

shown above, that decision is in conflict with prior

precedent – or, if the prior precedent is read so narrowly

as to avoid the finding of a conflict, this case involves

issues of first impression. And, even beyond that, the

issues presented here are very important ones. They are

important to the stability and coherence of the law, and

they are important because of their real-world effects on

school system employees throughout the State.

Already, even now, the decision by the Court of Civil

Appeals has had tangible effect on employees elsewhere.

This is shown by the petition, being filed at the same time

as this one, in Ex parte Rita Jones (Jones v. Elmore County

Board of Education). The employees in Jones were long-time

bus drivers whose hours of work were reduced; the Hearing

Officer designated to hear the employees’ challenge to that

action dismissed the challenge, on the basis of the

decision of the Court of Civil Appeals in this case.

As shown in the Jones petition, it is not only true

that the decision in this case will lead to complicated

11

battles in the future, with significant litigation expense.

It is not only true that this decision will jeopardize the

security of school support personnel throughout the State.

It is, beyond that, true that those effects have already

occurred, even mere weeks after the decision in this case.

That will only grow over time, as school boards attempt to

apply the holding in this case to situations that are quite

different from this case on their particular facts. This

is what happened in Jones, and it is what will happen in

the future. By correcting the legal error in this case,

the Court will be able to avoid all of those problems.

The decision below is, we respectfully submit, clearly

wrong as a matter of law. Perhaps its most fundamental

error is that it strays far from the first task at hand:

statutory interpretation. In determining the scope of the

“partial termination” doctrine, the Court was, or at least

should have been, answering a question about the meaning

and intent of the Fair Dismissal Act. Unfortunately,

legislative intent and the meaning of statutory words were

not at the center of the Appeals Court’s reasoning;

instead, the opinion of the Court of Civil Appeals was more

an exercise in law-making than in law-interpreting.

12

The decisions in Green, Carter and Ledbetter are, at

their root, decisions of statutory interpretation. They

are decisions about what the word “termination” in the Fair

Dismissal Act means, and whether the word’s meaning

includes a “partial termination,” meaning the reduction of

regularly-scheduled hours of work. The answer is that it

does. Beginning with Ledbetter, supra, that decision was

(we admit) motivated in part by the interpretive canon that

statutes should be construed if possible in a way that

avoids constitutional problems. This Court in Ledbetter

recognized that a reduction of hours of regularly scheduled

work could amount to a deprivation of constitutionally-

protected property, just as a complete termination could;

and this was one of the considerations that drove the Court

to interpret “termination” as including a reduction of

hours. But still at root the Court was interpreting the

Act, i.e., deciding what the Legislature had meant in the

words that the Legislature chose.

We must emphasize that the question – in Green, in

Ledbetter, and here – is not whether the Legislature

intended to prohibit school systems from reducing any

nonprobationary employee’s hours of work. The question is

13

instead whether the Legislature intended to keep some or

all nonprobationary employees from even being able to

challenge such actions. This Court decided in Green and

Ledbetter that the Legislature had intended to allow

employees to challenge such actions.

The question that the Appeals Court’s opinion in this

case raises, then, is whether there should be an additional

wrinkle added to the interpretation of legislative intent,

on the scope of the statutory word “termination.” Should

the Court infer that the Legislature adopted a rule that is

simple to state and easy to apply: i.e., that every non-

probationary employee who suffers a reduction in hours of

regularly-scheduled work has suffered a “partial

termination” giving rise to Fair Dismissal Act procedural

rights? Or should the Court instead create, and attribute

to the Legislature, a much more complicated and hard-to-

apply rule with caveats, exceptions and provisos that will

only grow as future cases build on this one?

The Court of Appeals, unfortunately, chose the latter

course. The scope of “partial termination” that the Court

adopted in this case seems to be that the Act’s coverage of

“partial termination” includes a reduction in hours of work

14

only in certain situations – for instance, only if the

contract covering such hours created a property interest,

such as if it was part and parcel of the employee’s overall

“base” contract under which the employee originally

attained non-probationary status. But according to the

Appeals Court’s opinion here, the Act does not protect such

hours if they are the subject of a separate non-“base”

contract and if under the terms of that non-“base” contract

the employee has no “property interest” in those hours.

This new wrinkle will create much difficult litigation

in the future, and it is litigation that the Legislature

surely did not intend to generate. Under the rule in this

case, every dispute about a “partial termination” will

result first in a round of litigation (before an ALJ or

Hearing Officer) about whether the decision can even be

challenged – and then, often, in a second round on the

merits. The decision of the Court of Appeals generates too

many disputes of this sort, such as the dispute at issue in

the companion petition, Ex parte Jones.

One of the core precepts of legislative intent is that

the Legislature is inferred to know of this Court’s

decisions; and when the Legislature reenacts a law without

15

changing something that this Court has already decided, the

Legislature is inferred to have ratified and adopted this

Court’s decision on the point. See, e.g., City of Pinson

v. Utilities Board of the City of Oneonta, 986 So.2d 367,

373 (Ala. 2007). Under that principle, it must be

understood that the Legislature knew of this Court’s

“partial termination” doctrine, and knew that this Court

had rejected attempts by school boards to “contractually”

eliminate statutory protections. If the Legislature (when

amending the Act in 2004) had wanted to make the right to

challenge a “partial termination” depend on the words

contained in each employee’s particular contract(s), the

Legislature would have said so. It did not. The Court of

Appeals should not have made this new rule on its own.

Conclusion

For the reasons stated herein, the Court should grant

review. Upon review, the Court should reverse the Court of

Appeals, and remand for entry of judgment and appropriate

relief in favor of Petitioners.

16

Respectfully submitted,

________________________Winn Faulk Sam Heldman631 South Perry St. The Gardner Firm, P.C.Montgomery AL 36104 2805 31st St. NW(334) 356-2926 Washington DC 20008fax (334) 269-5517 (202) 965-8884winn.faulk@gmail.com fax (202) 318-2445

sam@heldman.net

This document was prepared in Courier New, 13 point.

Certificate of Service

I certify that a copy of the foregoing was served byU.S. Mail on the following this ____ day of August, 2009;that on the same day a copy was sent to the Clerk of theCourt of Civil Appeals, and an original and 12 copies weresent to the Clerk of the Supreme Court.

Anne R. YuengertDonald B. Sweeney, Jr.Bradley, Arant, Rose & WhiteOne Federal Place1819 Fifth Ave. NorthBirmingham AL 35203

(205) 521-8000fax: (205) 521-8800ayuengert@bradleyarant.comdsweeney@bradleyarant.com

______________________

APPENDIX: Opinion of Court of Civil Appeals, and orderdenying rehearing

REL: 6/19/09

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2008-2009

2071135

Mary Simmons, Dytisha Goodgame, and Sheila Whetstone-Tuck

V.

Coosa County Board of Educat ion and Todd Wingard, as superintendent of the Coosa County Board of Education

Appeal from Coosa Circuit Court

(CV-04-69)

THOMAS, Judge.

Mary Simmons, Dytisha Goodgame, and Sheila Whetstone-Tuck

("the employees") sued the Coosa County Board of Education

("the Board") and Board Superintendent Todd Wingard, alleging

2071135

breach-of-contract claims and claims arising under the Fair

Dismissal Act, § 36-26-100 et seq., Ala. Code 1975 ("FDA").

The parties stipulated to the following facts:

"1. [The employees] are nonprobationary aides employed by the Board.

"2. As nonprobationary aides, they are entitled to the procedural safeguards set forth in the Alabama Fair Dismissal Act, Ala. Code [1975,] § 36-26-102 and § 36-26-103.

"3. [The employees] and [the Board and Wingard] stipulate and agree that [the employees] are employed by the Board pursuant to a base contract which entitles them to a 30-hour work week (six hours per day, five days a week).

"4. Prior to the start of the 1997-1998 school year, [the Board] asked and [the employees] agreed to work supplemental hours above and beyond their base contract term of 30 hours per week.

"5. In September of 1997, each [employee] signed a Temporary Work Contract in which they agreed to work '... 2 extra hours per day at my regular rate of pay.'

"6. From the 1997-1998 school year until the 2002-2003 school year, each [employee] continued to work two additional hours each day above and beyond their base term of employment:^ stated otherwise, [the employees] worked a 40-hour week (30 hours base contract week; 10 hours temporary work week) for each of the following school years:

"(a) 1997-1998 "(b) 1998-1999 "(c) 1999-2000 "(d) 2000-2001

2071135

"(e) 2001-2002

"7. In September of the 2002-2003 school year, the Board cancelled the temporary employment contract of each of the three [employees]. By this action, the number of hours each [employee] worked each week went from 40 hours a week (30 base; 10 temporary) to 30 hours a week.

"8. The Board unilaterally cancelled the temporary work contract of the [employees] without a hearing.

"9. [The employees] contend that the reduction in weekly hours of work from 40 hours to 30 hours constitutes a partial cancellation of their employment contracts.

"10. [The employees] contend that the Alabama Fair Dismissal Act, specifically Ala. Code [1975,] § 36-26-102, entitles them to a hearing before the Board can reduce their work hours.

"11. [The employees] requested a hearing before the Board to challenge the reduction in work hours, but the Board denied the request.

"12. [The employees] contend that the action of the Board to reduce their weekly hours of work from 40 hours to 30 hours violated the Alabama Fair Dismissal Act in that the Board did not comply with the procedural requirements of the Act by holding a hearing before taking such action.

"13. [The Board and Wingard] contend that the [employees] are bound by the terms of the temporary work contract, signed by each [employee]. The temporary work contract states:

"'I ... (name) agree to work 2 extra hours per day at my regular rate of pay.

2071135

"'I understand that this is a temporary agreement which will last only as long as the extra work time is needed by the school system and that the extra hours are nontenurable.

" ' I understand that my regular pay and tenure are based on my regular aide position.'

"Each [employee] signed a temporary work contract.

"14. [The employees] contend they are entitled to be made whole for all [pay] they would have earned if the temporary work contract had not been unilaterally cancelled in September of 2002.

"15. [The Board and Wingard] dispute this contention. [The Board and Wingard] maintain that these employees were hired by the Board as 30-hour a week aides. It is this base employment position which entitled [the employees] to procedural rights under the Fair Dismissal Act. This base contract has not been changed.

"16. The parties stipulate that, in the event the Court determines that the Board should have provided a hearing to each of the [employees] before reducing their weekly hours of work from 40 hours per week to 30 hours per week, the action of the Board was based upon mistake of law and fact and did not constitute an intentional violation of law.

"17. The [employees] agree to stipulate to the factual assertions set forth in the affidavit of Todd Wingard, but the [employees] do not stipulate to any statements of argument or conclusions of law set forth in the affidavit.

"̂ The exact number of hours worked by each [employee] is documented in the records of the

2071135

Board. Some weeks the employees may have worked less than 10 extra hours, but generally the employees worked 10 extra hours a week."

Superintendent Wingard's affidavit contains the following

factual assertions:

"These three employees were employed by the Board as 30-hour per week aides. They have never been approved by the Board as 40-hour week employees.

"[The employees] worked as special education aides. As special education aides, they would attend to and assist students with disabilities. Students with disabilities must be assisted or accommodated to make sure they receive an appropriate education notwithstanding their handicap. The needs of handicapped children vary from time to time.

"For example, a child with orthopedic problems may need help one week or month on the school bus, but not the next week or month. The child may become self-reliant and no longer need the aide. Or the child may become too sick to come to school or otherwise drop out of school, thereby eliminating the need for an aide.

"In short, the needs and requirements of the special education children change from time to time.

"Recognizing these changing circumstances, it made sense to the Board to see if existing aides would like additional work to cover the special needs of handicapped students before and after school rather than hire a full-time employee.

"As I stated before, our aides work 30 hours a week. Their salaries for this work have generally been less than a thousand dollars a month for the

2071135

nine months of the school year. The aides often need and want additional work.

"Given the [employees] desired to earn more money than their base pay, and the Board's interest to meet the changing needs of its special education students without hiring additional full-time aides, the employees and the administrators worked out an arrangement to best serve the needs of both.

"The school district asked if the [employees] were willing to work, on a temporary basis, up to two hours a day or ten hours extra a week -- on an as-needed basis. The [employees] stated they were willing to do so.

"To make sure it would be legal to enter a separate contract with the employees to work on a temporary basis to meet the changing needs of the special education students, the Superintendent and the Special Education Coordinator asked the UniServ Director of AEA [the Alabama Education Association] to verify that the Board could use employees for the extra work without affecting their tenured contract. The Superintendent and the AEA UniServ Director worked together to develop the temporary work contract, which each of the [employees] signed. The Board approved the recommendation to give the Superintendent of Education authority to determine assignments for the extra work.

"[T]he voters of Coosa County rejected a proposed tax increase. This left the Board in desperate financial condition.

"To address this crisis, I, as Superintendent, had the responsibility to cut costs wherever I could.

2071135

"I determined that we did not need to use [the employees] for this work. I determined that we could make scheduling adjustments so this 'extra work' would not be necessary or required.

"Now [the employees want three years of pay for work they did not do; and want us to go through an expensive hearing to show what everybody knows --the Coosa County Board is in a financial crisis."

The parties filed cross-motions for a summary judgment

and briefs in support of their positions. On July 24, 2008,

the trial court entered the following judgment, after which

the employees timely appealed to this court:

"After a consideration of the Stipulation of Facts, briefs of the parties, applicable case law and Alabama's Fair Dismissal Act, the Court finds that [the Board and Wingard are] entitled to judgment as a matter of law. This is primarily due to the fact that the [employees] entered into separate temporary agreements each year, which clearly state that the agreements were 'temporary' and that pay and tenure were based on the 'regular six-hour position.' These agreements were approved by an AEA representative. [The employees] also entered into separate general aide agreements each year as well. As such, the Board's failure to renew these contracts does not appear to violate any provision of the Fair Dismissal Act.

"Accordingly, Judgment is hereby entered in favor of [the Board and Wingard] and against the [employees]."

2071135

Standard of Review

Because this appeal comes to us on stipulated facts and

the trial court's ruling on cross-motions for a summary

judgment, our review is de novo. See Provident Life & Cas.

Co. V. Crean, 804 So. 2d 236 (Ala. Civ. App. 2001) .

"The trial court was not presented with any disputed facts, nor was there any oral testimony taken. It is well settled that '[w]here the evidence before the trial court is undisputed, ... the appellate court shall sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to the facts.' Justice V. Arab Lumber & Supply, Inc., 533 So. 2d 538, 542 ([Ala.] 1988), citing Abel v. Forrest Realty, Inc., 484 So. 2d 1069 (Ala. 1986); Stinson V. Stinson, 494 So. 2d 435 (Ala. Civ. App. 1986); Stiles V. Brown, 380 So. 2d 792 (Ala. 1980) . Because we construe the trial court's judgment not as a summary judgment, but rather as a judgment on stipulated facts, we review this case using the de novo standard."

Crean, 804 So. 2d at 238.

The FDA Claim

The FDA entitles nonprobationary employees of school

systems and other entities^ to certain due-process rights

^Section 36-26-100 provides that the FDA covers

"all persons employed by county and city boards of education, two-year educational institutions under the control and auspices of the State Board of Education, the Alabama Institute for Deaf and Blind,

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before their employment is terminated, including 15 days'

notice of termination, see § 36-26-101, Ala. Code 1975, and

the right to a hearing if the employee wishes to contest the

termination, see § 36-26-103 and -104, Ala. Code 1975. A

nonprobationary employee is one who has been employed by the

employer for three years or more. See § 36-26-101, Ala. Code

1975. The FDA applies only to full-time employees, i.e, those

"whose duties require 20 or more hours in each normal working

week of the school term, employing board holidays excepted."

§ 36-26-100, Ala. Code 1975.

Citing Ex parte Green, 689 So. 2d 838 (Ala. 1996);

Ledbetter v. Jackson County Board of Education, 508 So. 2d 244

(Ala. 1987) ; and Carter v. Baldwin County Board of Education,

532 So. 2d 1017 (Ala. Civ. App. 1988), the employees contend

including production workers at the Alabama Industries for the Blind, and educational and correctional institutions under the control and auspices of the Alabama Department of Youth Services, who are so employed by any of these employers as bus drivers, lunchroom or cafeteria workers, maids and janitors, custodians, maintenance personnel, secretaries and clerical assistants, full-time instructors as defined by the State Board of Education, supervisors, and all other persons not otherwise certified by the State Board of Education."

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that the Board's reduction of their work hours constituted a

"partial termination" of their employment, thereby triggering

the protections of the FDA. Specifically, the employees

assert that they were entitled to a hearing before the Board

reduced their hours.

Ledbetter is the seminal case holding that partial

termination of employment triggers the right to a hearing

under the FDA. In Ledbetter,, the school board reduced the

regular working hours of three nonprobationary lunchroom

workers from 35 to 30 hours per week due to decreased

enrollment at an elementary school. The employees requested

a hearing under the FDA, and the school board filed a

declaratory-judgment action, seeking a ruling that the board

had neither "terminated" the employees within the meaning of

§ 36-26-103, Ala. Code 1975, nor "transferred" them within the

meaning of § 36-26-105, Ala. Code 1975 -- the only adverse

employment actions specifically mentioned in the FDA that

trigger the right to a hearing. The circuit court entered a

declaratory judgment for the school board.

On appeal to the Alabama Supreme Court, the employees in

Ledbetter argued that the court should construe the provisions

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of the FDA dealing with "termination" in pari materia with §

16-24-3, Ala. Code 1975, a part of the Teacher Tenure Act

("TTA"), § 16-24-1 et seq., Ala. Code 1975, which provides, in

pertinent part:

"The contract of employment of any teacher who shall attain continuing service status shall remain in full force and effect unless superseded by a new contract signed by both parties, or cancelled as provided in Section 16-24-9 or 16-24-10 [establishing procedural protections that must precede cancellation]."

(Emphasis added.) Relying on its earlier decision in Ex parte

Wright, 443 So. 2d 40 (Ala. 1983), the supreme court analyzed

the case as an invalid "partial termination" of the lunchroom

workers' employment. 508 So. 2d at 245. The Ledbetter court

stated:

"In Wright, this Court addressed the issue of whether certain tenured teachers ' contracts had been improperly cancelled by the school board. This Court held that a new contract, which changed the number of months that the teachers were to work from ten to nine was a 'partial cancellation' of the old contract, and as such could not be enforced without compliance with the procedures set out in § 16-24-9 of the Teacher Tenure Act."

Id. See Wright, 443 So. 2d at 42 (stating that " [t] here can be

no question that there was a partial cancellation, since the

teachers' old contract, providing that they would work ten

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months at a certain annual salary, was replaced by a new

contract that provided they would work only nine months at a

commensurately reduced annual salary").

In Ledbetter, the supreme court discussed the fact that

the trial court had rejected the employees' invitation to

construe the FDA in pari materia with the TTA because, the

trial court had reasoned, there was a "material distinction"

between the FDA and the TTA. Commenting on that reasoning,

the supreme court stated:

"Although a narrow reading of § 36-26-102, § 16-24-3, and Wright, supra, leaves room for the trial court's distinction between the Fair Dismissal Act and the Teacher Tenure Act, the relevant principles of due process under the Fourteenth Amendment lead us to the conclusion that Mrs. Ledbetter has been deprived of her property interest in her employment without due process of law."

Ledbetter, 508 So. 2d at 245-46. The court decided that,

notwithstanding an arguable distinction between the FDA and

the TTA, the trial court had erred by failing to acknowledge

that the employees had a "'legitimate claim of entitlement'"

to, and therefore a "property interest" in, continued

employment that made the school board's reduction of their

working hours without a hearing a denial of due process. 508

So. 2d at 246 (quoting Board of Regents v. Roth, 408 U.S. 564,

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577 (1972), and citing Perry v. Sinderman, 408 U.S. 593, 602-

03 (1972)). See also Stallworth v. City of Evergreen, 680 So.

2d 229, 233 (Ala. 1996) (stating that Roth held that "a

governmental employee's contractual or statutory right to

continued employment [is] a property interest falling within

the scope of the Fourteenth Amendment's protection," and

noting that Goss v. Lopez, 419 U.S. 565, 573 (1975), held that

"'a state employee who under state law, or rules promulgated

by state officials, has a legitimate claim of entitlement to

continued employment absent sufficient cause for dismissal may

demand the procedural protections of due process'").

In Carter -- the second case on which the employees in

the present case rely -- the employees were nonprobationary

school-board personnel who performed dual duties, including

cafeteria work, custodial work, working as teachers' aides,

and driving school buses. Pursuant to the ruling of the

United States Supreme Court in Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528 (1985),

indicating that the employees were subject to the requirements

of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 -

208, the school board reduced the employees' weekly work hours

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to 40 in order to avoid paying them overtime compensation.

The employees sought a judgment declaring that they were

entitled to notice and a hearing before their work hours were

reduced. The trial court determined that the employees had a

"property interest" only in a 40-hour week and not in overtime

hours.

Following the ruling in Ledbetter, which had been decided

the previous year, this court reversed the trial court's

judgment, holding that the employees had a property interest

in the "whole" of their employment. 532 So. 2d at 1019. The

court stated: "We read Ledbetter as including any reduction in

regularly scheduled hours as a partial termination since these

scheduled hours constituted the employee's employment as a

whole." Id.

In Green — the third case upon which the employees here

rely -- each employee worked in the school lunchroom and also

worked as a custodian. The employees' lunchroom duties

required more than 20 hours per week; their custodial duties

required less than 20 hours per week. The school board

terminated their services as custodians, arguing that the

employees "had two distinct jobs in the school and that

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because they worked less than 20 hours as custodians, their

termination as custodians was not covered by the [FDA]." 689

So. 2d at 839. The Alabama Supreme Court disagreed, stating

that the school board's interpretation "would defeat the

purpose of the [FDA] ." Id. The court held that the plain

language of the FDA protected employees who worked 20 or more

hours per week and that, irrespective of the distinct jobs the

employees performed during the week, they were entitled to the

due-process protections established by the FDA because they

had a property interest in the "whole" of their employment.

Id.

As the foregoing discussion makes clear, a school board's

failure to provide its employees with notice and a hearing

regarding the reduction of their working hours was analyzed as

a denial of due process in Ledbetter, Carter, and Green. The

threshold inquiry in any claim of denial of due process is

whether the interest asserted rises to the level of a

"property interest." See Stephenson v. Lawrence County Bd. of

Educ. , 782 So. 2d 192, 200 (Ala. 2000) . The employees in

Ledbetter, Carter, and Green were entitled to the due-process

protections of the FDA because the base contracts pursuant to

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which they had worked and gained nonprobationary status under

the FDA gave them a "legitimate claim of entitlement" to, and,

therefore, a "property interest" in, working and being paid

for the number of hours that they had been working before the

board reduced their hours.

However, "a public employee whose duties are terminable

at will has no property interest in continued employment,"

Mountain v. Collins, 430 So. 2d 430, 433 (Ala. 1983); see also

Davis V. J.F. Drake Tech. Coll., 854 So. 2d 1151 (Ala. Civ.

App. 2002); and Gainous v. Tibbets, 672 So. 2d 800 (Ala. Civ.

App. 1995), and an employee "has no property rights in a

position of temporary employment, where termination may occur

at will," Woods v. Milner, 955 F.2d 436, 440 (6th Cir. 1992).

In Board of Regents v. Roth, 408 U.S. at 577, the United

States Supreme Court explained:

"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined."

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We cannot conclude that the employees in the present case

could have had a valid expectation of, or have reasonably

relied in their daily lives upon, continuing to receive 10

extra work hours a week and the pay those extra hours merited

when they signed contracts that were specifically designated

as "Temporary Work Contracts" that would "last only as long as

the extra work time is needed by the school system." Nor can

we conclude that the employees could reasonably have relied

upon being afforded a hearing as guaranteed by the FDA before

their work hours were reduced when the "Temporary Work

Contracts" expressly provided that their "extra hours are

nontenurable" and that their "regular pay and tenure [were]

based on [their] regular aide position [s] ." In our judgment,

the employees' "Temporary Work Contracts" may have given them

a "need or desire" for the extra hours and pay they received,

but the contracts did not give them a "legitimate claim of

entitlement" to the additional time and compensation. See

Roth, 408 U.S. at 577.

The employees argue that their "Temporary Work Contracts"

are subject to the following rules: (1) that "the terms and

provisions of the [Teacher Tenure] Act are to be read into all

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contracts entered into by school boards and teachers," Haas v.

Madison County Bd. of Educ, 380 So. 2d 873, 875 (Ala. Civ.

App. 1980); (2) that "ordinary contract principles do not

control when they conflict with the intent of the [teacher]

tenure law," Ex parte Wright, 443 So. 2d at 41; and (3) that

"an attempted waiver of the protection afforded by teacher

tenure laws is ineffectual on public policy grounds," Ex parte

Wright, 443 So. 2d at 42. Relying on the rules stated in

Wright and Haas, the employees contend that their "Temporary

Work Contracts" are ineffectual because the contract

provisions are in conflict with the provisions of the FDA and

represent an attempted waiver of the due-process protections

guaranteed by the FDA.

Initially, we point out that Wright and Haas, as well as

Morgan v. Huntsville City Board of Education, 510 So. 2d 260,

261 (Ala. Civ. App. 1987), another decision citing the rules

stated in Wright in Haas, are cases applying the TTA -- not

the FDA -- and the rules stated in those three cases have not

even been applied to all cases alleging a violation of the

TTA, much less to cases alleging a violation of the FDA. In

Davis V. Russell, 852 So. 2d 774 (Ala. Civ. App. 2002);

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Campbell v. Talladega City Board of Education, 628 So. 2d 842

(Ala. Civ. App. 1993); and Bryan v. Alabama State Tenure

Commission, 472 So. 2d 1052 (Ala. Civ. App. 1985), Alabama

appellate courts held that a teacher is not entitled to a TTA

hearing upon the nonrenewal of his or her "supplemental

contract" with respect to a position such as an athletic coach

or a student-activity sponsor.

Furthermore, although Alabama appellate courts have

sometimes been receptive to construing the FDA in pari materia

with the TTA, see Ledbetter, 508 So. 2d at 245, our courts

have pointed out that such construction is not always

appropriate, see, e.g.. Ex parte Athens State Coll., 795 So.

2d 709, 714 (Ala. 2000) (stating that § 36-26-102, a part of

the FDA, should not have been construed in pari materia with

§ 16-24-8, a part of the TTA, because "[t]enured teachers are

afforded special protections. The 'special' consideration

given tenured teachers is reflected in the Tenure Act's

purpose, which is 'to promote stability in employment and to

prevent a board from discharging a tenured teacher instead of

a nontenured teacher.'" (quoting Ex parte Alabama State Tenure

Comm'n, 595 So. 2d 479, 481 (Ala. 1991))); and Ray v. Decatur

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City Bd. of Educ, 723 So. 2d 680, 683 (Ala. Civ. App.

1998)(stating that, "[ujnlike the Teacher Tenure Act, ... the

FDA does not contain an automatic contract renewal

provision") .

Finally, even if the rules stated in Wright, Haas, and

Morgan could, under other circumstances, be applicable to a

case arising under the FDA -- a question we expressly do not

decide -- they are not applicable here because the contracts

at issue in those three cases were the contracts upon which

the teachers had been working when they earned tenure. In

Wright, the school board presented tenured teachers with new

contracts purporting to reduce their term of employment, and

accordingly their pay, from 10 months to 9 months. In Haas,

the school board attempted, at the end of a principal's third

year of employment as a principal, to extend his probationary

period another three years. In Morgan, the school board

attempted to extend tenured teachers' contracts from 196 days

to 200 days without additional compensation.

In the present case, the "Temporary Work Contracts" were

clearly not the base contracts under which the employees had

been working when they earned nonprobationary status. Nor did

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the temporary contracts purport to cancel or nullify the

contracts on which the employees had achieved nonprobationary

status. The temporary contracts were, instead, "supplemental"

to the employees' base contracts. We hold that, if there is

an analogy between the FDA and the TTA that can be applied to

this case, it lies in the fact that neither act guarantees the

right to a due-process hearing before the termination or

partial termination of a "supplemental" contract for which the

employee cannot earn tenure. We hold that the employees'

"Temporary Work Contracts" are analogous to teachers'

supplemental employment contracts.

Although § 16-24-12, Ala. Code 1975, a part of the TTA,

requires that notice of the nonrenewal of a teacher's

supplemental contract be timely -- i.e., given "on or before

the last day of the term of the school in which the teacher is

employed," when nonrenewal of the supplemental contract means

that the teacher will not be "'reemploy [ed] for the succeeding

school year at the same salary,'" Boone v. Birmingham Bd. of

Educ., [Ms. 2061147, July 25, 2008] So. 3d , (Ala.

Civ. App. 2008) (quoting § 16-24-12) (emphasis added) -- a

teacher is not entitled to a hearing upon the nonrenewal of

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his or her supplemental contract, see Davis v. Russell, supra;

Campbell v. Talladega City Bd. of Educ, supra; and Bryan v.

Alabama State Tenure Comm'n, supra. The employees in the

present case make no argument that there was any defect with

respect to the notice they received as to the cancellation of

their "Temporary Work Contracts."

The Breach-of-Contract Claim

The employees' sole argument with respect to the breach-

of-contract claim is that, based on Haas, the terms and

provisions of the FDA are to be read into the "Temporary Work

Contracts" they signed in 1997, thereby guaranteeing them a

hearing before their work hours were reduced -- an argument

that we have previously discussed and rejected. Accordingly,

we conclude that the judgment of the trial court is due to be

affirmed.

AFFIRMED.

Thompson, P.J., and Pittman, Bryan, and Moore, JJ.,

concur.

22

JOHN H.WILKERSON, JR. CLERK

REBECCA C. DATES ASSISTANT CLERK

The Court of Civil Appeals

300 DEXTER AVENUE MONTGOMERY, ALABAMA 36104-3741

August 14, 2009

TELEPHONE 334-229-0733 FAX 334-229-0530

EMAIL cvfilings@appellate.state.al.us

2071135 Mary Simmons, Dytisha Goodgame, and Sheila Whetstone-Tuck v. Coosa County Board of Education and Todd Wingard, as superintendent of the Coosa County Board of Education (Appeal from Coosa Circuit Court: CV-04-69)

You are hereby notified that the following action was taken in the above cause, by the Court of Civil Appeals:

Application for Rehearing Overruled. No opinion written on rehearing.

John H. Wilkerson, Jr. Clerk, Court of Civil Appeals