So. Ala. Skills Training Consortium v. Ford

• Decision Date: 06 June 2008
• Docket Number: 2060837.
• Parties: SOUTH ALABAMA SKILLS TRAINING CONSORTIUM, Central Alabama Skills Training Consortium, and North Alabama Skills Training Consortium v. Roberta FORD et al.
• Court: Alabama Court of Civil Appeals

997 So.2d 309

SOUTH ALABAMA SKILLS TRAINING CONSORTIUM, Central Alabama Skills Training Consortium, and North Alabama Skills Training Consortium v. Roberta FORD et al.

2060837.

Court of Civil Appeals of Alabama.

June 6, 2008.

T. Julian Motes and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for appellants.

Candis A. McGowan of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham; William F. Patty of Beers, Anderson, Jackson, Patty & Van Heest, P.C., Montgomery; and Gregory Stein of Stein, Brewster & Pulcher, LLC, Mobile, for appellees.

THOMPSON, Presiding Judge.

The North Alabama Skills Training Consortium, the Central Alabama Skills Training Consortium, and the South Alabama Skills Training Consortium (collectively "the Consortia") appeal from the denial of their petition for a writ of certiorari. The evidence and record on appeal reveal the following.

I. Procedural History

In June 2005, the employment contracts of nine state employees were not renewed; those employees were: Roberta Ford, Dolores Ibarra, John McGowin, Angela Mullins, Robyn Stinson, Dawn Thorn, Emuel Todd, Annette Rea, and Gloria Watkins. In July 2005, eight of those employees— Ford, Ibarra, McGowin, Mullins, Stinson, Thorn, Todd, and Watkins (collectively "the employees")—filed direct appeals with the attorney general's office, purportedly pursuant to the Fair Dismissal Act ("FDA"), § 36-26-100 et seq., Ala.Code 1975.¹ See § 36-26-115, Ala.Code 1975. The employees alleged that their respective employers had violated the FDA, specifically §§ 36-26-102 through -104, Ala. Code 1975, by terminating their employment without notice and a hearing.²

Ibarra, Thorn, and Todd identified Bevill State Community College ("Bevill State") as the respondent in their appeals. Bevill State responded, denied any employment relationship with Ibarra, Thorn, and Todd, and asserted that Ibarra, Thorn, and Todd were instead employed by the North Alabama Skills Training Consortium ("NASTC"). Bevill State denied that the NASTC was one of its divisions or departments, and it denied that the FDA governed Ibarra's, Thorn's, and Todd's employment.

Ford and Watkins identified Southern Union State Community College ("Southern Union") as the respondent in their appeals. Southern Union responded, denied any employment relationship with Ford and Watkins, and asserted that Ford and Watkins were instead employed by the Central Alabama Skills Training Consortium ("CASTC"). Southern Union denied that the CASTC was one of its divisions or departments, and it denied that the FDA governed Ford's and Watkins's employment.

McGowin, Mullins, and Stinson identified Bishop State Community College ("Bishop State") as the respondent in their appeals. They each purported to appeal individually and on behalf of all similarly situated employees. The South Alabama Skills Training Consortium ("SASTC") responded, stating that it had been incorrectly identified as "Bishop State." The SASTC asserted that it, and not Bishop State, had employed McGowin, Mullins, and Stinson. The SASTC denied that it was a part of Bishop State, and it denied that the FDA applied to McGowin's, Mullins's, and Stinson's employment.

The Consortia subsequently filed a joint motion to dismiss the employees' appeals asserting that the employees were not governed by the FDA and, therefore, that an administrative law judge ("ALJ") lacked jurisdiction to consider the appeals. Each consortium stated that it had been incorrectly identified by the employees. Bevill State, Southern Union, and Bishop State (collectively "the colleges") made no further filings in the action. The eight appeals were assigned to an ALJ and consolidated. The ALJ received briefs and documentary evidence, but he did not hold a hearing.

On May 24, 2006, the ALJ issued a 43-page report and recommendation in which he found that the Consortia were departments within the colleges, that the employees were employed by the colleges, and that the colleges operated "under the control, authority, and auspices of the Alabama College System." The ALJ concluded that the FDA applied to the employees and that the employees had been wrongfully denied notice and hearings as to the discontinuation of their employment. The ALJ ordered as follows:

"2. ... [T]he actions of the two-year colleges are hereby rescinded, and the [employees] are entitled to:

"a. The rights and privileges of the FDA, including their right to a hearing prior to their termination.

"b. Proper notice per the FDA.

"c. Reinstatement and back pay.

"3. The [colleges] are hereby placed on notice that any further employment action on their part must be in full compliance with the FDA."

The ALJ also ordered that "all of the [colleges'] employees who are situated as are the Petitioners in the case sub judice[] are subject to the FDA."

On June 23, 2006, the Consortia filed in the Montgomery Circuit Court a petition for a writ of certiorari and a motion to stay enforcement of the ALJ's order. The employees moved to dismiss the petition, arguing, among other things, that because the ALJ's order was final under § 36-26-115, Ala.Code 1975, the Consortia had no right to appeal or petition for certiorari review. The employees also argued that the Consortia lacked standing and were not proper parties under Rule 17, Ala. R. Civ. P. The circuit court granted the motion to stay.

On December 18, 2006, while the petition for certiorari review was pending before the circuit court, Rea filed a direct appeal with the attorney general's office, citing § 36-26-115 and the ALJ's May 24, 2006, order. Rea's appeal named Bevill State as a respondent. The NASTC responded, alleged that it had been incorrectly identified as Bevill State, and asserted that Rea's appeal was untimely and that the FDA did not apply to Rea. On February 13, 2007, relying almost entirely on the "similarly situated" language of the May 24, 2006, order, the ALJ found that the FDA applied to Rea and stated that "the conclusion/holding rendered in the [May 24, 2006, order] applies, in toto, to the case here at bar." The NASTC filed in the Montgomery Circuit Court a petition for a writ of certiorari and a motion to stay enforcement of the ALJ's decision. Rea's action was not consolidated with that of the other employees.

The circuit court held a short hearing, and subsequently it issued an order on May 8, 2007. The circuit court's order denied the petitions for the writ of certiorari and granted the motions to dismiss in Rea's action and in the employees' action. The circuit court also stated:

"[T]he court agrees with all of the conclusions made by the Administrative Law Judge in his May 24, 2006, order in the underlying administrative proceeding in this case and with his February 13, 2007, order in the underlying administrative proceeding in the Rea case. ... The court therefore affirms and incorporates the entire order from the underlying administrative proceedings issued by the Administrative Law Judge on May 24, 2006."

The Consortia filed a notice of appeal to this court on June 7, 2007, in the employees' action and in Rea's action; the circuit court granted a stay of enforcement of the ALJ's order pending resolution of this appeal. The case was subsequently submitted to this court which heard oral argument on April 17, 2008.

II. The Fair Dismissal Act

"The purpose of the FDA `is to provide non-teacher employees a fair and swift resolution of proposed employment terminations,' and the FDA should be liberally construed to effectuate its purpose." Gainous v. Tibbets, 672 So.2d 800, 803 (Ala.Civ.App.1995)(quoting Bolton v. Board of Sch. Comm'rs of Mobile County, 514 So.2d 820, 824 (Ala. 1987)). The portions of the FDA relevant to this case are discussed below.

Section 36-26-100, Ala.Code 1975, defines the term "employees" as used in the FDA and thus establishes the requirements individuals must satisfy in order to be governed by the FDA. That section states:

"The term `employees,' as used in this article, is deemed to mean and include all persons employed by county and city boards of education, two-year educational institutions under the control and auspices of the State Board of Education ..., who are so employed by any of these employers as bus drivers, lunchroom or cafeteria workers, maids and janitors, custodians, maintenance personnel, secretaries and clerical assistants, full-time instructors as defined by the State Board of Education, supervisors, and all other persons not otherwise certified by the State Board of Education. Only full-time employees who are not otherwise covered by the state Merit System or the teacher tenure law at the time this article is adopted are intended to be covered by this article. Full-time employees include ... employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted."

Section 36-26-101(a) of the FDA states: "All employees ... shall be deemed employed on a probationary status for a period not to exceed three years from the date of his or her initial employment, or a lesser period which may be fixed by the employing authority." Under § 36-26-102, an employee who has completed the probationary period "shall thereafter not be terminated except for failure to perform his or her duties in a satisfactory manner ... or other good and just causes ...." Sections 36-26-103 and -104 require specific procedures for the termination of employment of nonprobationary employees under § 36-26-102, including notice to the employee of the proposed termination, a determination by the employing board that the termination should occur, and a hearing upon the employee's request. It is pursuant to these provisions that Rea and the other employees maintain they were entitled to notice and a hearing.

Section 36-26-115 of the FDA states:

"An employee who has attained nonprobationary status and has been denied a hearing before the local board...