Averyt v. Doyle
| Decision Date | 29 August 1984 |
| Citation | 456 So.2d 1096 |
| Parties | Clyde K. AVERYT v. Robert B. DOYLE, Jr., Gary A. Greenough and Lambert C. Mims, et al. Civ. 4329. |
| Court | Alabama Court of Civil Appeals |
Robert C. Wilson, Mobile, for appellant.
William R. Lauten and John L. Lawler, Mobile, for appellee City of Mobile.
Mylan R. Engel, Mobile, for appellee The Mobile County Personnel Bd.
This is an employee dismissal case.
The employee appeals from an order of the Circuit Court of Mobile County granting defendant's motion to dismiss.
Appellant Clyde Averyt was notified on January 12, 1982, of his dismissal from the Mobile Fire Department. The dismissal was to be effective at 8:00 A.M., January 15, 1982. The dismissal resulted from a recommendation by F.J. Seelhorst, Fire Chief for the City of Mobile.
Averyt was dismissed under the authority of Rule 14.2 of the Personnel Board of Mobile County. Rule 14.2 provides, among other grounds, as reasons for dismissal "incapacity due to mental or physical disability" and "incompetency or inefficiency." The Personnel Board rules and regulations are promulgated under the authority of Act No. 470, Local Acts of Alabama 1939, which established a county-wide civil service system for Mobile County.
Appellant suffers from a general epileptic condition. His dismissal followed the occurrence of a grand mal (generalized) seizure.
The record indicates that on April 30, 1978, another fireman on duty at the fire station to which Averyt was assigned noticed that Averyt, who was napping in the next bunk, had suddenly become stiff, and that his arms and legs had started jerking severely, to the point where Averyt fell off the bunk and seemed to stop breathing. The fireman then cleared Averyt's mouth. Averyt resumed normal breathing and his eyes opened, but he had a glazed look as though he were in a coma. The rescue unit was called, and Averyt was subsequently hospitalized. In May 1978, while at home, Averyt suffered another seizure.
From the time of his seizure in April 1978 until his discharge in January 1982, Averyt was permitted to work as a firefighter, but was not allowed to drive. After submitting letters from two doctors that described the permanent nature of his disability, Averyt applied for a disability pension in September 1981. The request was denied because Averyt was neither injured in the course of duty nor employed for the necessary period (fifteen years) for pension benefits to vest.
After holding a pretermination hearing for Averyt on January 8, 1982, Chief Seelhorst recommended to the public safety commissioner that in view of Averyt's permanent disability and the resulting restrictions placed on his work, Averyt should be dismissed effective January 15, 1982. Averyt was then dismissed.
Averyt appealed his dismissal to the Mobile County Personnel Board. After holding a hearing in April 1982, the Board denied his appeal. Averyt appealed that decision to the Circuit Court of Mobile County, where it is presently pending.
On January 12, 1983, Averyt instituted another action in the Circuit Court of Mobile County. The two-count complaint alleged a violation of § 21-7-8, Code of Alabama 1975 and a failure to pay earned and accrued benefits. Named as defendants were the city commissioners, Chief Seelhorst, the City of Mobile, members of the Personnel Board individually, and the Board itself.
The defendants filed a motion to dismiss, alleging (1) failure to state a claim; (2) the running of the statute of limitations; (3) failure to exhaust administrative remedies; and (4) failure to join an indispensable party. The court, after initially granting the defendants' motion, later set it aside. Averyt then filed an amended complaint and a motion to consolidate the second action with his original appeal from the decision of the Personnel Board. The trial court then granted the defendants' motion to dismiss and denied Averyt's motion to consolidate. From that order Averyt appeals.
Averyt argues on appeal that the trial court erred in (1) dismissing the second action as barred by the running of the statute of limitations, (2) dismissing the action for failure to exhaust administrative remedies, (3) dismissing the complaint for failure to join an indispensable party, and (4) in denying Averyt's motion to consolidate.
Section 22 of Act No. 470, Local Acts of Alabama 1939, contains a provision enabling a terminated civil service employee to appeal to and request a hearing before the Mobile County Personnel Board. Such hearings on appeal are de novo, and the Board may rescind, modify, alter or affirm the penalty imposed by the City. Rule 14.7 of the Personnel Board of Mobile County; City of Mobile v. Personnel Board for Mobile County, 57 Ala.App. 516, 329 So.2d 570 (1976). Rule 14.7 has been upheld by the supreme court. See Jordan v. City of Mobile, 260 Ala. 393, 71 So.2d 513 (1954). Since Rule 14.7 states that the hearing on appeal shall be de novo, it is abundantly clear that the Board is the trier of fact in these proceedings. City of Mobile v. Personnel Board for Mobile County, supra. If the dismissed employee is not satisfied with the outcome of the hearing before the Board, § 34 of Act No. 470, Local Acts of Alabama 1939, provides for an appeal to the circuit court. Grant v City of Mobile, 50 Ala.App. 684, 282 So.2d 285 (1973).
Under these circumstances, the standard of review by the circuit court is, in effect, that of certiorari, and on such a review the circuit court is limited to a review of the record made before the Board and the questions of law presented thereby. Ex parte City of Tuskegee, 447 So.2d 713 (Ala.1984); Grant v. City of Mobile, supra. The circuit court should not offer a trial de novo on the merits of an employee dismissal case, where the employee is already seeking redress through the statutorily mandated process and the procedures adopted pursuant to that process. If it did, the circuit court would assume a jurisdiction it did not possess. Ex parte City of Tuskegee, supra.
Appellant contends on appeal that the second action filed with the trial...
To continue reading
Request your trial
-
Dockery v. City of Jasper
..."constitutional issues" were not within the jurisdiction of the Mobile County Personnel Board; as described in Averyt v. Doyle, 456 So. 2d 1096, 1098 (Ala. Civ. App. 1984), those issues allegedly included the employee's claims alleging "violation of § 21–7–8, Code of Alabama 1975, which [in......
-
Ethridge v. State of Ala., Civ. A. No. 93-T-754-S.
...the pleadings, defendants argue that § 21-7-8 does not create a private cause of action. It appears that only one case, Averyt v. Doyle, 456 So.2d 1096 (Ala.Civ.App.1984), addresses § 21-7-8. In that case, a dismissed employee appealed his dismissal to the Mobile County Personnel Board. He ......
-
City of Mobile v. Seals
...is before the Board that a trial de novo may be obtained by a civil service employee appealing his or her termination. Averyt v. Doyle, 456 So.2d 1096 (Ala.Civ.App.1984); City of Mobile v. Personnel Board, 57 Ala.App. 516, 329 So.2d 570 (Ala.Civ.App.1976). Accord, Guthrie v. Civil Service B......
-
Mobile Fire Fighters Ass'n v. Personnel Bd. of Mobile County
...from a failure to employ an otherwise qualified person because of a physical handicap. Although the appellant in Averyt v. Doyle, 456 So.2d 1096 (Ala.Civ.App.1984), asserted a violation of § 21-7-8, among other things, this court did not resolve whether § 21-7-8 provided a private right of ......