Hardy v. Birmingham Board of Education

954 F.2d 1546
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 5, 1992
DocketNo. 91-7046
StatusPublished
Cited by5 cases

This text of 954 F.2d 1546 (Hardy v. Birmingham Board of Education) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hardy v. Birmingham Board of Education, 954 F.2d 1546 (11th Cir. 1992).

Opinion

KAUFMAN, Senior District Judge.

Appellant, Benjamin Hardy (Hardy), was a tenured employee of the appellee, Birmingham Board of Education (Board), and worked as the head custodian at that appel-lee’s Fairview School.1 On February 8, 1989, the Board sent Hardy a notice of proposed termination for “neglect of duty, failure to perform his duties in a satisfactory manner, and other good and just cause.” At the time Hardy received the notice, he had been an employee of the Board for ten years.2 As an employee of [1547]*1547the Board, Hardy was covered by Alabama’s Fair Dismissal Act (Act), Ala.Code §§ 36-26-100 to 108 (1987) which provides dismissal procedures for non-teacher school board employees. Hardy had acquired “nonprobationary status” under the Act, which meant that his employment could be terminated only for specific reasons and in accordance with a specified procedure, all as set forth in the Act. That procedure includes the right to notice and a hearing before the Board and the right to appeal an adverse Board decision to a mutually agreed upon hearing officer or to a three-member employee review panel.

Hardy contested the proposed termination of his employment. The Board held a hearing and thereafter voted to terminate Hardy’s employment. Hardy then filed a timely notice of appeal of the Board’s decision pursuant to the provisions of the Act, choosing to appeal to a three-member employee review panel. Under the Act’s provisions, such a panel is composed of one person selected by the employing board and another selected by the employee. The third member is selected by mutual agreement of the “two parties.”3 In the event the two parties cannot agree upon a third member within 10 days following the appointment of the second member, the probate judge of the county in which the dispute arose is required to submit the names of three individuals whom the judge believes are qualified to serve.4 The parties are each entitled to strike one name; the person whose name remains becomes the third member of the panel.

The Board chose as its panel member an employee of its personnel department. Hardy chose Sarah Summerville, his union representative, as his panel member. Because the two parties were unable to agree with respect to a person to serve as the third member of the panel, the Jefferson County probate judge5 submitted a list of three names from which a local attorney emerged as the panel’s third member. The latter chaired the panel.

The panel held four days of hearings. On the next to the last day of hearings, the Board moved that panelist Summerville re-cuse herself on the ground that she had “independent knowledge of some of the facts surrounding this particular case”— acquired from her contacts with Hardy in her capacity as his union representative. Summerville apparently declined to recuse herself, at least in part, because union employees and school board employees had regularly been appointed to serve on employee review panels, notwithstanding their prior involvement in the underlying dispute.

The employee review panel issued a unanimous decision on July 14, 1989, concluding that Hardy had been wrongfully terminated by the Board and that he “should be reinstated immediately to the position of custodian.” A copy of that decision was sent to respective counsel for Hardy and the Board. Hardy’s counsel then wrote to the panel requesting clarification and modification of the decision to provide Hardy with backpay. Several [1548]*1548weeks later the Board’s counsel wrote to the panel challenging the validity of the panel’s decision on several grounds, one of which was that the panel had exceeded its authority under the Act because it did not make a finding as to whether the Board’s decision was based on one or more grounds specified by the Act. Counsel for the Board concluded his letter by stating that “Mr. Hardy will not be reinstated.” The letter contained no indication that the Board intended to appeal the panel’s decision. The panel chairperson, on August 14, 1989, in a written response, accepted personal responsibility for failing to cite the relevant provisions of the Act upon which the panel relied and stated that the panel’s decision “was that the action of the Birmingham Board of Education was arbitrary, unjust and unwarranted.” The written response also addressed Hardy’s counsel’s concern about backpay, stating that the panel had concluded that Hardy should be awarded backpay.

After waiting a month for the Board to comply with the panel’s decision, and in the light of the unequivocal position of the Board that it would not, as stated in the Board counsel’s letter of August 14, 1989, rehire Hardy, the latter filed in the Circuit Court of Jefferson County, Alabama, on September 15, 1989, a “Petition for Writ of Mandamus/Damage/Preliminary and Permanent Injunctive Relief.” In that petition, Hardy alleged, inter alia, that the Board’s failure to comply with the unap-pealed “final and binding” decision of the employee review panel was a clear violation of the Act, and asked the state court to issue a writ of mandamus directing the Board to reinstate him to his position with backpay. In addition to that state law claim, Hardy also claimed that the Board’s failure to comply with the employee review panel’s decision deprived him of a property right and of due process of law in violation of the Fourteenth Amendment to the United States Constitution and of 42 U.S.C. § 1983.6

The Board, on the basis of Hardy’s federal constitutional and federal statutory claims, removed the case to the United States District Court for the Northern District of Alabama. On the merits, the Board contended that because the Board was exercising “discretionary duties” in deciding to terminate Hardy, the latter’s reinstatement was not a ministerial duty subject to mandamus. In addition, the Board asserted that the employee review panel’s decision was defective because the panel had made no specific determination that the Board’s termination of Hardy was based on a statutorily permissible ground. In a later Amended Response to Hardy’s petition, the Board additionally contended that the failure of Summerville to recuse herself from the employee review panel denied the Board due process of law under the United States Constitution and Alabama’s Constitution and was in derogation of the Board’s common-law right to a fair and impartial hearing. The Board asked the federal district court to enjoin enforcement of the panel’s decision, to render the panel’s decision a nullity and to affirm the Board’s termination of Hardy.

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Hardy v. Birmingham Board of Education
954 F.2d 1546 (Eleventh Circuit, 1992)

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Bluebook (online)
954 F.2d 1546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardy-v-birmingham-board-of-education-ca11-1992.