Hardy v. Birmingham Bd. of Educ.

• Decision Date: 14 January 1994
• Citation: 634 So.2d 574
• Parties: Benjamin HARDY v. BIRMINGHAM BOARD OF EDUCATION, et al. AV92000336.
• Court: Alabama Court of Civil Appeals

Page 574

634 So.2d 574

Benjamin HARDY v. BIRMINGHAM BOARD OF EDUCATION, et al.

AV92000336.

Court of Civil Appeals of Alabama.

Jan. 14, 1994.

Joe R. Whatley, Jr. and Andrew C. Allen of Cooper, Mitch, Crawford, Kuykendall & Whatley and Jerome Tucker, Birmingham, for appellant.

Peyton Lacy, Jr. and Thomas F. Campbell of Lange, Simpson, Robinson & Sommerville, Birmingham, for appellees.

YATES, Judge.

This is an appeal from a sua sponte involuntary dismissal pursuant to Rule 41, Ala.R.Civ.P.

Benjamin Hardy was employed by the Birmingham Board of Education (Board). On February 11, 1989, the Board terminated his employment. He appealed his termination to the Employee Review Panel (Panel), and was granted a hearing. The Panel found, on July 14, 1989, that Hardy had been "wrongfully terminated" and that he "should be reinstated immediately to the position of custodian." The Board refused to reinstate Hardy, and on September 15, 1989, Hardy petitioned the Circuit Court of Jefferson County for writ of mandamus, seeking enforcement of the provisions of the Fair Dismissal Act, Ala.Code 1975, § 36-26-100 et seq.

On November 1, 1989, the Board removed the case to a federal district court. The record is scant as to the details of the federal court proceedings, and those proceedings have no bearing on the current appeal. On May 7, 1992, the federal court remanded the case to the Circuit Court of Jefferson County.

After the remand, Hardy and the Board filed motions for summary judgment; the court denied both motions by order dated June 10, 1992, for failure of the parties to have the motions set for a hearing. On September 15, 1992, Hardy filed a second motion for summary judgment and requested a hearing.

Hardy's second motion for summary judgment included a case background and stated additionally, in pertinent part:

"There are no material issues of fact in that the Panel reinstated [Hardy] to his position and that the [Board] failed and refused to reinstate [Hardy] to his position. There is no issue of fact that [the Board] did not file an appeal or action in Court challenging the decision of the Panel. [Hardy] is entitled to a judgment as a matter of law."

On October 5, 1992, the court held a hearing, at which it heard arguments from counsel and considered the letters from the Panel dated July 14, 1989, and August 14, 1989, and a letter from the Board dated August 9, 1989.

The court denied Hardy's second motion for summary judgment on October 7, 1992, by an order stating: "Counsel are allowed a period of 30 days within which to get this case at issue and have the case placed on the list to be set for trial. If such action is not taken, the case will be dismissed." On November 6, 1992, Hardy filed a "Statement of the Issues and Request for Trial Date." The trial court entered a "Judgment of Dismissal" on January 5, 1993, for "want of prosecution for failure to get the case at issue and have it set for hearing." Following the denial of his Rule 59(e), Ala.R.Civ.P., motion, Hardy appeals.

The dispositive issue is whether Hardy was entitled to an entry of summary judgment. The trial court considered the August 14, 1989, letter of the Panel, which stated in part:

"It is the decision of the [Panel] that Hardy was wrongfully terminated. The Panel's ruling was that the action of the [Board] was arbitrary, unjust and unwarranted thereby resulting in Hardy's wrongful termination. The Panel further decided that Hardy should be reinstated with back pay."

The Board's response was that the Panel had exceeded its authority, citing Ala.Code 1975, § 36-26-106, in failing to make specific findings of fact. The Panel is not required to make specific findings of fact or conclusions of law. Section 36-26-106 provides "In making its decision, the panel shall consider whether the action of the board or its administrative staff was arbitrary or unjust or for political or personal reasons on the part of any member of the board or its staff and whether the board's action was warranted based upon the facts of the case and the employment record of the employee. The decision of the panel shall be final and binding upon the parties."

This court has said regarding the authority of the Panel pursuant to the Fair Dismissal Act:

"(1) the panel's review is de novo, (2) the panel considers whether the Board's actions were arbitrary, (3) the panel considers whether the Board's actions were warranted based on the facts of the case and the employment record of the employee, and (4) the panel's decision is binding."

Birmingham Board of Education v. Holifield, 604 So.2d 422, 424 (Ala.Civ.App.1991); and Johnson v. Lawson State Jr. College, 581 So.2d 865 (Ala.Civ.App.1991).

The record reveals that there was no dispute that: (1) Hardy's employment was covered under the Fair Dismissal Act; (2) the Panel found that Hardy had been wrongfully terminated and that he should be reinstated with back pay (letters of July 14, 1989, and August 14, 1989); and (3) the Board refused to reinstate Hardy (letter of August 9, 1989).

Further, the record contains...