No.

__________

IN THE SUPREME COURT OF ALABAMA

____________________

Ex parte RITA JONES, CYNTHIA DALLAS, JAMIE ROBINSON, SAMUEL

ZIEGLER, CAROLYN COOPER, MARIETTA GRAY, LISA HALLMAN, JIMMY
MILLER, AND ANGELA MILLER, Petitioners

In re

RITA JONES, CYNTHIA DALLAS, JAMIE ROBINSON, SAMUEL ZIEGLER,

CAROLYN COOPER, MARIETTA GRAY, LISA HALLMAN, JIMMY MILLER,
AND ANGELA MILLER

vs.

ELMORE COUNTY BOARD OF EDUCATION,

____________________

On Petition for Writ of Certiorari or Mandamus to the

Court of Civil Appeals, regarding an appeal from a
Hearing Officer under Ala. Code § 36-26-104(b)
____________________

PETITION FOR WRIT OF CERTIORARI OR MANDAMUS

____________________

Nancy E. Perry
P.O. Box 4177
Montgomery AL 36103-4177
(334) 834-9790
fax (334) 834-7034
nancyp@alaedu.org

Sam Heldman
The Gardner Firm, P.C.
2805 31st St. NW
Washington DC 20008
(202) 965-8884
fax (202) 318-2445
sam@heldman.net
 Table of Contents

Petition for Writ of Certiorari or Mandamus . . . . . . 1

Introduction to the issues and the grounds for

certiorari or mandamus . . . . . . . . . . . . . . 3

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

Argument . . . . . . . . . . . . . . . . . . . . . . . 13

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

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

Appendices:

A. Order of Court of Civil Appeals

B. Materials filed by Petitioners/Appellants with Court of

Civil Appeals, including Hearing Officer’s decision and
letter brief to Court of Civil Appeals supporting request
for review

C. School Board’s motion to dismiss and brief in support,

filed with Hearing Officer.

D. Employees’ response in opposition to motion to dismiss,

filed with Hearing Officer

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 Table of Authorities

Carter v. Baldwin County Board of Ed.,

532 So.2d 1017 (Ala. Civ. App. 1988) . . . 2, 4, 6, 14

Clayton v. Board of School Commissioners,

552 So.2d 145 (Ala. 1988) . . . . . . . . . . . . . 7

Ex parte Green, 689 So.2d 838 (Ala. 1996) . . 2, 4, 6, 14

Haas v. Madison County Board of Ed.,

380 So.2d 873 (Ala. Civ. App. 1980) . . . . . . . . 7

Ledbetter v. Jackson County Board of Ed.,

508 So.2d 244 (Ala. 1987) . . . . . . . . 2, 4, 6, 14

Perry v. Sindermann,
408 U.S. 593, 92 S.Ct. 2694 (1972) . . . . . . . . 14

Simmons v. Coosa County Board of Ed.,

___ So.3d ____ (Ala. Civ. App. 2009) . . . . . passim

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

Ala. Code § 12-2-7(1) . . . . . . . . . . . . . . . . . 8

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

Ala. Code § 36-26-104(b) . . . . . . . . . . . . . . 1, 3

Ala. R. App. P. 39 . . . . . . . . . . . . . . . . . 6-7

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 PETITION FOR WRIT OF CERTIORARI OR MANDAMUS

Petitioners Rita Jones, Cynthia Dallas, Jamie Robinson,

Samuel Ziegler, Carolyn Cooper, Marietta Gray, Lisa

Hallman, Jimmy Miller, and Angela Miller request that the

Court review the decision and order of the Court of Civil

Appeals in Jones v. Elmore County (No. 2080979, August 14,

2009). By that decision, the Court of Civil Appeals

“denied” these Petitioners’ appeal from the decision of a

Hearing Officer under the Fair Dismissal Act, Ala. Code §

36-26-104(b). In the alternative, if for any reason the

decision is deemed to be not reviewable by certiorari,

Petitioners request a writ of mandamus, ordering the Court

of Civil Appeals to hear the case on the merits after this

Court has rendered a decision on the applicable law.

This petition is a companion to another petition that

is being filed on the same day, Ex parte Mary Simmons et

al. As more fully explained below, the Simmons petition

seeks certiorari review of the decision of the Court of

Civil Appeals in Simmons v. Coosa County Bd. (No. 2071135,

June 19, 2009, rehearing denied, August 14, 2009). In its

Simmons decision, the Court of Civil Appeals created a new,

and incorrect, limitation on the doctrine of “partial

1
termination” under the Fair Dismissal Act. Under the

“partial termination” doctrine, and authorities 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 school board’s reduction of regularly

scheduled work hours for a nonprobationary school employee

is an act that is reviewable under the Fair Dismissal Act.

In its Simmons decision, the Court of Civil Appeals created

a new exception to this rule, and held that some reductions

of regularly scheduled work hours for such employees are

outside the scope of the Act, depending on facts including

the language contained in the employee’s contracts.

In this case, a school board immediately took advantage

of Simmons as soon as that decision was issued, using it

and expanding it to avoid review of a “partial termination”

of several bus drivers, even though the factual picture was

quite different from, and less clear than, the facts in

Simmons. The Hearing Officer in this case dismissed the

proceeding, on the basis of the brand-new Simmons decision.

(See Hearing Officer’s decision, in Appendix B hereto).

The employees in this case appealed under Ala. Code §

2
36-26-104(b) and asked the Court of Civil Appeals to review

the Hearing Officer’s ruling, or at least to hold the

appeal pending rehearing and certiorari proceedings in

Simmons. (See Appendix B).

The Court of Appeals, without comment, “denied” the

appeal; in effect, the Court of Civil Appeals refused to

hear the case, even though the Hearing Officer’s decision

had been solely based on Simmons and even though Simmons is

still under review and is not final. (See Appendix A).

The employees, as Petitioners in this Court,

respectfully ask this Court either (a) to hear this case

along with Simmons, since taking the two factually-

different cases will allow the Court to make a more fully

informed decision about the applicable law or (b) to decide

Simmons and then – by writ of certiorari or mandamus –

order the Court of Civil Appeals to reconsider the appeal

in this case in light of this Court’s disposition of

Simmons. These Petitioners should have the benefit of a

correct application of the law of “partial termination”

under the Fair Dismissal Act, through one of those routes.

Introduction to the issues and the

grounds for certiorari or mandamus

As noted above, like the petition in the companion case

3
Simmons, 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

all of her hours 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 such hours

of work is impossible or always 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’

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regularly-scheduled hours of work, hours that the employees

had worked regularly for year after year.

The school board initially complied with the Fair

Dismissal Act, in the sense that it gave notice of the

proposed action under the Act, and (when the employees

invoked their statutory right to contest that action)

agreed to convene a proceeding before a Fair Dismissal Act

Hearing Officer.

Then the Court of Civil Appeals issued its decision in

Simmons. The school board saw room for a new argument, and

asked the Hearing Officer to hold that the reduction of

hours was not reviewable under the Act after all.

The Hearing Officer did not hold a hearing, but

received briefs and documentary evidence. (See Appendices

C and D). The Hearing Officer then agreed with the school

board, and dismissed the proceeding on the basis of

Simmons. The Hearing Officer explained his view that, like

the work hours at issue in Simmons, the work hours at issue

in this case were “supplemental” and “temporary,” and

therefore outside the protection of the Act under Simmons.

The employees appealed to the Court of Civil Appeals.

On August 14, the Court of Civil Appeals “denied” the

5
appeal in this case, and also denied rehearing in Simmons.

Certiorari is appropriate under Ala. R. App. P. 39 on

the same basis as in Simmons. For the sake of efficiency,

we will not reiterate every word that is explained in the

Ex parte Simmons petition.

In summary, the Simmons holding (as applied in this

case) is in conflict with prior precedent, making

certiorari appropriate under Rule 39(a)(1)(D). Simmons

makes the applicability of the “partial termination”

doctrine dependent on whether the employee had a

constitutionally protected property interest in the work

hours at issue, and allows a school board to eliminate Fair

Dismissal Act protection for “supplemental” work hours by

writing contracts that declare such work hours to be only

“temporary.” This conflicts with prior precedent holding

any reduction of regularly-scheduled hours of work to be a

“partial termination” reviewable under the Act regardless

of whether the employee works under a single contract or

multiple contracts,1 and conflicts with prior precedent

1
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).
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holding that the protections of Alabama’s system of school-

employment laws cannot be circumvented, reduced, or

eliminated by contract.2

If no conflict with prior precedent is seen, then there

are questions of first impression, making certiorari

appropriate under Rule 39(a)(1)(C). As in Simmons, 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 put the particular hours of

work outside the protection of the Act?” And in this case

those questions need to be answered against the background

of a particular set of facts – a set of facts showing that

a reasonable understanding from the employees’ perspective

2
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, 42 (Ala. 1983) (same); Clayton v.
Board of School Commissioners, 552 So.2d 145, 149 (Ala.
1988) (Fair Dismissal Act), citing Haas, supra.
7
would have been that these hours of work were protected,

and that they would not be taken away without compliance

with due process under the Fair Dismissal Act.

In the alternative, if certiorari review is not

appropriate, then mandamus review is. Either as a

companion to Ex parte Simmons, or after holding this case

pending an opinion on the merits in Simmons, mandamus would

be an available way to ensure that these employees receive

the benefit of an application of the correctly formulated

“partial termination” doctrine. The Court could accomplish

that goal by using the writ of mandamus to order the Court

of Civil Appeals to reach the merits of this case, after

this Court has rendered a decision on the governing law.

Statement of Facts

Neither any court nor any Hearing Officer has heard

testimony to make any findings regarding the facts in this

case. Therefore the facts are not established in any real

sense, yet, and the Hearing Officer’s view of the facts is

not dispositive. See Ala. Code § 12-2-7(1) (“[I]n deciding

appeals, no weight shall be given the decision of the trial

judge upon the facts where the evidence is not taken orally

before the judge, but in such cases the Supreme Court shall
8
weigh the evidence and give judgment as it deems just.”)

Certainly it is true that the inferences to be drawn from

the available evidence are hotly disputed.

The most important evidence, and the inferences to be

drawn from the evidence, are included in the employees’

submission to the Hearing Officer (Exhibit D hereto); this

statement of facts is supported by that material. In any

instance where there is not documentary evidence in these

materials to support a particular allegation, it is true by

the same token that there is no evidence to refute the

particular allegation – and (without having convened a

hearing) there was no basis upon which the Hearing Officer

could legitimately reject the drivers’ position on any such

factual matter.

The case involves nine school bus drivers for the

Elmore County Board of Education, each of whom has many

years of service and is undisputedly a “nonprobationary”

employee within the coverage of the Fair Dismissal Act.

The hours of work at issue in this case are not the

hours driving children to and from school and the start and

end of the regular school day. The hours at issue here,

instead, are sometimes referred to as “school to school”

9
routes; they involve transporting students to and from such

things as intra-day school-related activities, or programs

(such as special needs or vocational) for particular

students.

The school board has a continuing and ongoing need for

this work. It is, in that sense, not “temporary” work at

all – it is needed year after year (indeed, has been needed

increasingly with each passing year) – and there is no

reason to believe that it will be needed less during this

next school year than the last.

These employees have faithfully worked the hours in

question year after year.

The course of dealings between the parties, over the

years, has confirmed the reasonableness of the

understanding that the hours spent working “school to

school routes” are covered and protected by the Fair

Dismissal Act, and that they would not be taken away except

through compliance with the Act. This course of dealings

goes back at least as far as 2004, when the school board –

hoping to eliminate some of these “school to school” hours

– attempted to have the drivers sign away their Fair

Dismissal Act rights. Drivers refused, and the school

10
board backed down. (Appendix D p. 6 ¶ 8, and Exhibits 17-

19 thereto).

This course of dealings, confirming the reasonable

understanding that the “school to school” routes were

protected under the standards of the Fair Dismissal Act,

continued with the board’s giving of Fair Dismissal Act

notice in this very case. The notice of proposed

elimination of these drivers’ “school to school” routes was

given, expressly, under the Act itself. (See, e.g.,

Exhibit 24 to Appendix D).

Against this understanding, the Hearing Officer relied

on the characterization of these hours of work in certain

“contracts” prepared by the school board, in which the

board wrote that each year’s supplemental contract for this

“school to school” driving “shall not constitute a contract

beyond one year,” that the driver “cannot expect or

anticipate this route to be available or offered to you

next year or any school year hereafter,” and that “[t]his

contract and/or route may nor may not be available next

year, or any school year thereafter.”

This language, even on its face, does not constitute a

declaration that the “school to school” route work falls

11
outside the protection of the Fair Dismissal Act. It is,

at most, a warning that the work may not be around forever.

That warning can, logically, coexist with the Fair

Dismissal Act; the warning itself is something that the

decisionmaker in a Fair Dismissal Act hearing could weigh

in determining whether the termination of such work was

substantively appropriate under the Act. But the warning

itself does not mean that the Act’s protections are absent.

Yet even if that board-written provision in contracts

(signed by some drivers, refused by at least one) might

have more significance if taken in isolation, in this case

it cannot be taken in isolation. It must be understood

instead in light of the fact that – up until the issuance

of the Simmons decision – these hours of work were treated

as being protected by the Fair Dismissal Act.

In other words, the board-written document may have

included some isolated language that can now be seized on

to make an argument against Fair Dismissal Act coverage –

but the real fact “on the ground” was that, until Simmons,

such coverage was the reasonable understanding from the

perspective of a driver. The provision on which the school

board and Hearing Officer rely had been in the school

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board’s “contract” documentation even as far back as 2003

(Exhibits 11, 12 to Appendix D); yet despite its existence

at that time, as we have noted above, the board backed down

and effectively conceded that the work was protected by the

Fair Dismissal Act. The work might not be around forever;

but a driver could reasonably understand that the work

would be his (or hers) until and unless the board complied

with the Fair Dismissal Act in any effort to take it away.

Argument

This case is a clear example – even just a few weeks

after the creation of the Simmons doctrine by the Court of

Appeals – of the reasons why the Simmons doctrine is so

wrong and why this Court should review it.

The premise of Simmons, as discussed in the Simmons

petition, seems to be that a “partial termination” is

reviewable under the Fair Dismissal Act only if the

employee had a constitutionally protected “property

interest” in the hours of work at issue, based on an

assessment of the employee’s legitimate “valid expectation”

about whether those hours were covered by a tenure-like

protection. (See Simmons Slip Op., pp. 15-17). That legal

analysis is wrong on the merits, and is based on a

13
misreading of Green, Ledbetter, and Carter.

This case shows, first, that if that premise of the

Simmons doctrine is taken seriously, then in future

disputes it will often require significant factual

development and expensive litigation to decide actually

whether the employees had a “valid expectation” that their

hours would not be reduced without a Fair Dismissal Act

hearing. The issue of whether a property interest exists

is often hard, and fact-intensive. It cannot be resolved

by looking only to the terms of the employment contract;

one must look at relevant norms and customs in a fact-

intensive way, to determine whether a property interest

exists. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct.

2694 (1972). Simmons may have seemed like a simple case on

its facts, but this case is far more complex from a factual

perspective. To actually allow a determination of what the

employees’ “valid expectation[s]” were, in this case, would

have required a real hearing, and real findings of fact,

based on the whole picture – not just on the part that

consisted of the board-written contracts.

But as this case shows, one danger of creating a new

doctrine like Simmons is that those sorts of fact-intensive

14
inquiries can then get bypassed in future cases. Instead,

as occurred here, there can too often be a simplistic

application of the new doctrine that takes it far beyond

the rationale that was used to justify the doctrine in the

first place. From the employees’ perspective in this case,

there was definitely a legitimate understanding that their

hours would not be reduced without compliance with the Act.

The Simmons doctrine, which was premised as being rooted in

legitimate expectations, has now been expanded in this case

to upset that very sort of expectation. This was the

danger of Simmons all along, and it shows why this Court

should grant review in order to reject, or at least to

severely limit, the doctrine before it can do more harm.

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 appropriate relief in

favor of Petitioners. In the alternative, this Court

should hold this case pending a decision in Simmons, and

should then – by writ of certiorari or mandamus – direct

the Court of Civil Appeals to apply the law as stated in

this Court’s opinion on the merits in Simmons.

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Respectfully submitted,

________________________
Nancy E. Perry Sam Heldman
P.O. Box 4177 The Gardner Firm, P.C.
Montgomery AL 36103-4177 2805 31st St. NW
(334) 834-9790 Washington DC 20008
fax (334) 834-7034 (202) 965-8884
nancyp@alaedu.org 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 by

U.S. Mail on the following this ____ day of August, 2009;
that on the same day a copy was sent to the Clerk of the
Court of Civil Appeals, and an original and 12 copies were
sent to the Clerk of the Supreme Court.

James R. Seale
Hill, Hill, Carter, Franco,
Cole & Black, P.C.
P.O. Box. 116
Montgomery AL 36101-0116

(334) 834-7600 phone

(334) 832-7419 facsimile
JRS@HillHillCarter.com

______________________

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