Payne v. Ballard, J-C-83-123.

• Court: United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
• Citation: 595 F. Supp. 878
• Docket Number: No. J-C-83-123.,J-C-83-123.
• Parties: Ken PAYNE, Plaintiff, v. J. Barry BALLARD et al., Defendants.
• Decision Date: 11 October 1984

595 F. Supp. 878

Ken PAYNE, Plaintiff, v. J. Barry BALLARD et al., Defendants.

No. J-C-83-123.

United States District Court, E.D. Arkansas, Jonesboro Division.

October 11, 1984.

Marc Baretz, West Memphis, Ark., for plaintiff.

C.R. McNair, III, Asst. Atty. Gen., of the State of Ark., Little Rock, Ark., for defendant.

MEMORANDUM OPINION

ROY, District Judge.

Plaintiff, Ken Payne, brought this action pursuant to 42 U.S.C. § 1983 alleging that his termination as an employee of the Cotton Boll Vocational Technical School violated his rights of procedural and substantive due process guaranteed by the Fourteenth Amendment, specifically alleging that he had both a property and liberty interest in his continued employment with the defendants. Additionally, plaintiff alleged that the actions of the defendants in terminating him were in violation of the employee grievance and appeal procedure in effect at the time of his termination.

The case was tried to the court on May 21 and 22, 1984.

Plaintiff, at all times during his employment with the Cotton Boll Vocational Technical School, was a resident citizen of Blytheville, Arkansas, and since his employment with the defendants, from 1979 through October 26, 1982, was an instructor at the Cotton Boll Vocational Technical School. Prior to his being employed at Cotton Boll, Mr. Payne had worked at various factory-type jobs as a draftsman or in related type of work. Mr. Payne had a high school education at the time of his employ with the defendants and did not have any post high school training or college courses and had no prior courses in teaching methods. Other than a one day period of orientation, defendants provided the plaintiff with no specific training either in his area of expertise or as to teaching in general.

The defendants are, in effect, the Cotton Boll Vocational Technical School, through its properly served agents and administrators. That school is an agency of the Department of Education, State of Arkansas and is located in Blytheville, Arkansas.

On or about August 27, 1982, the plaintiff was placed on probationary status by the defendants for an act of insubordination occurring on August 25, 1982. The insubordination concerned a request that he contact some high school students who apparently failed to return to Mr. Payne's classes after attending one day of class. The Vocational School commenced classes on or about August 9, 1982, with the high school students' first appearance at the Vocational School occurring on or about August 24, 1982.

William Nelson, Jr., Director of the Cotton Boll Vocational Technical School, had received information indicating that the reason some high school students did not return to Mr. Payne's class was because Mr. Payne had paid no attention to them.

Upon receiving this information, on August 25, 1982, William Nelson, Jr., asked Ken Payne three times if he would ascertain if the high school students who failed to return to his classes would return. It was not until the third request that Ken Payne asked William Nelson, Jr. if he might have a day to think the matter over, and would advise Mr. Nelson the following morning as to whether or not he would in fact contact the students. Ken Payne testified that he thought that by agreeing to contact the students he was admitting that he had, in fact, run the students off, and that was the reason for his reluctance to contact the students upon Mr. Nelson's request. On the 26th of August, 1982, Ken Payne did not make contact with William Nelson, Jr., and at trial testified that he made some attempt to contact Mr. Nelson but that he bore the responsibility for not succeeding in contacting him on the 26th. Ken Payne left no messages with the secretaries to advise Mr. Nelson of plaintiff's attempts to reach him. William Nelson testified that he cancelled his lunch appointment the next day so he would not miss Mr. Payne, but Mr. Payne did not talk with Mr. Nelson until August 27, 1982, two days after their discussion. It was on August 27, 1982, that William Nelson, Jr. handed Ken Payne a letter indicating that insubordination was grounds for immediate dismissal and that Ken Payne could have been terminated on the 25th for his actions. The letter gave Ken Payne the option of contacting the students and being placed on probation, or not contacting the students and being terminated effective immediately. At that time, William Nelson, Jr., also advised Ken Payne that his employment status was changed and that he was no longer a permanent employee. The letter also stated that any subsequent acts of insubordination would be grounds for dismissal. Upon receipt of the letter, Ken Payne did, in fact, contact the students from Mr. Nelson's office and elected to appeal the action of placing him on probation as per the letter of August 27, 1982, through the employee grievance and appeal procedure.

The appeal to step 1 of the employee grievance and appeal procedure provides for a hearing to be scheduled with the employee within ten working days and the employee's immediate supervisor and area coordinator to be notified of the grievance by the personnel officer. Ken Payne testified that the Personnel Officer, Dianne Farquhar, called him and advised him that as time was running short regarding a decision to be made that a telephone conference was appropriate, and gave him the option of either having a conference by telephone or foregoing the hearing. Dianne Farquhar admitted at trial that the conference was, in fact, held by telephone but stated that Ken Payne was agreeable to holding the conference by phone. She further testified that she would never have agreed to a phone hearing if Mr. Payne had not so agreed. On or about September 24, 1982, Dianne Farquhar notified Ken Payne of her decision upholding the probation and advising him that he could continue on probation for the remainder of the school year. She did further advise him that if he was not satisfied with the decision that he might continue in accordance with step 2 of the employee grievance and appeals procedure. Ken Payne timely filed an appeal stating that he wished to continue the grievance to step 2. Once Dr. J. Barry Ballard, Director of the State of Arkansas Department of Education Division of Vocational Education, received the request for further review, he appointed an ad hoc committee to consider the case. On October 6, 1982, the ad hoc committee appointed by Dr. J. Barry Ballard met at the Cotton Boll Vocational Technical School and held a hearing. The subject of that hearing was the plaintiff's insubordination regarding his failure to call the high school students and his being placed on probation therefore. However, additional testimony was presented at the hearing and carefully considered by the committee regarding certain unauthorized schedule changes made by the plaintiff since the plaintiff's own grievance which was filed with the Committee raised the schedule change issue.

At the hearing that was held on October 6, 1982, Ken Payne appeared on his own behalf without representation. A transcript of the tape recording taken at that hearing was prepared and introduced as a plaintiff's exhibit. At various points in the proceedings there were discussions about a change of schedule that Mr. Payne made after having been told not to do so by his superiors. Testimony revealed that the ad hoc committee based its decision upon its understanding that Mr. Payne had made changes in his classroom schedule in contravention of directives from his superior, June Walters. The transcript of the ad hoc committee hearing is replete with instances wherein plaintiff himself acknowledges that he had made schedule changes although directed by Ms. Walters not to do so. Plaintiff now complains, in retrospect, that the ad hoc committee members apparently misunderstood his testimony and that in fact he had not made schedule changes but only rearranged class time devoted to particular subjects. Plaintiff testified at trial that the class time rearrangements were approved by Ms. June Walters, the school's scheduling supervisor. Ms. Walters, however, explained in her testimony at trial how such changes would have been in violation of department policy and that as a result she would never have given any such approval. During his testimony, plaintiff Payne was unable to direct the court to any reference in the ad hoc committee transcript where he did not specifically admit to having made the schedule changes. It is true that at the committee hearing, Mr. Payne stated that he would not expect the administration to change the schedule that would conflict with other instructors, and that all he was asking was to change his class time only. Nevertheless, the transcript also clearly indicates that Mr. Payne stated that the full-time students were only getting half the drafting theory and half the communications, and that Mr. Payne answered affirmatively when asked if this constituted a schedule change. The Court has difficulty reconciling this testimony with the plaintiff's statement at trial that he did not make a schedule change involving less theory time. Furthermore, Dr. J. Barry Ballard, Director of the Division of Vocational Technical Education, Department of Education, the individual that ultimately made the determination that Mr. Payne should be terminated, testified that in the period of time between the recommendation of the ad hoc committee in October of 1982 and the review of Dr. Ballard's termination decision by the State Board of Education in January of 1983, numerous telephone conversations transpired between he and plaintiff without any reference to the alleged approval of the schedule changes by Ms. Walters. Although the transcript of the ad hoc committee hearing indicated some confusion on behalf of the members of the Committee concerning what, in fact, occurred, at no time did Ken Payne state that any changes he made were done...