White v. Dougherty County Bd. of Educ.

• Decision Date: 10 February 1984
• Docket Number: Civ. A. No. 81-20-ALB.
• Citation: 579 F. Supp. 1480
• Parties: John E. WHITE, Plaintiff, v. DOUGHERTY COUNTY BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

579 F. Supp. 1480

John E. WHITE, Plaintiff, v. DOUGHERTY COUNTY BOARD OF EDUCATION, et al., Defendants.

Civ. A. No. 81-20-ALB.

United States District Court, M.D. Georgia, Albany Division.

February 10, 1984.

Jesse W. Walters, Albany, Ga., for defendants.

John R. Myer, Atlanta, Ga., for plaintiff.

Before ANDERSON, Circuit Judge, and OWENS and ELLIOTT, District Judges.

OWENS, District Judge:

In 1976 plaintiff John E. White, a black Albany, Georgia citizen and employee of the Dougherty County Board of Education, filed a previous complaint (Civil 76-29 Albany Division) in this court alleging that defendant board of education's Rule 58 requiring any school system employee who becomes a candidate for public office to take a leave of absence without pay for the duration of his candidacy, was violative of the Voting Rights Act; the Voting Rights Act had not been complied with; and use of the rule should be enjoined by a three-judge court until the Voting Rights Act was complied with. By order dated March 27, 1977, the required three-judge court agreed with plaintiff White and in a written opinion published in 431 F.Supp. 919 enjoined the use of Rule 58 until the Voting Rights Act was complied with. Defendant Dougherty County Board of Education appealed to the Supreme Court of the United States and the Supreme Court on November 28, 1978, in a 5-4 decision affirmed. 439 U.S. 32, 99 S.Ct. 368, 58 L.Ed.2d 269.

On March 10, 1981, plaintiff John E. White filed the subject complaint against the Dougherty County Board of Education alleging that on or about April 15, 1980, the board of education, after abolishing the rule that was enjoined, adopted a new political leaves of absence policy which expressly denies employee leaves of absence for political purposes; that said policy violates the Voting Rights Act; the Voting Rights Act has not been complied with; and a court of three judges should enjoin use of the policy until the Act is complied with. A court of three judges was designated, and a hearing was held. All having been considered, this constitutes the court's ruling on all issues required to be decided by a court of three judges. 42 U.S.C. 1971(g).

The Facts

This being a continuation of the events that precipitated plaintiff's first lawsuit, the facts begin with those events. They were stipulated to and, as stipulated, set forth in the court's order of March 27, 1977, to wit:

The plaintiff John E. White, a black citizen of Dougherty County, Georgia, filed his complaint alleging that in May 1972 while employed by the Dougherty County Board of Education, he publicly announced his intention to become a candidate for a seat in the House of Representatives of the General Assembly of Georgia. Plaintiff White states that he thus became the first black in recent years to seek election in Dougherty County as a Representative to the General Assembly. In June 1972 the defendant Dougherty County Board of Education for the first time adopted the following policy known as Rule 58:

"POLITICAL OFFICE. Any employee of the school system who becomes a candidate for any elective political office, will be required to take a leave of absence, without pay, such leave becoming effective upon the qualifying for each elective office and continuing for the duration of such political activity, and during the period of service in such office, if elected thereto."

As required by this rule the plaintiff took a leave of absence without pay from the time of his qualification as a Democratic primary candidate in June 1972 until his defeat in the Democratic primary election in August 1972. In June 1974 he again qualified to run for the same office and was required to take a leave of absence from his employment on June 12, through and including his winning the August 1974 primary election and the November 1974 general election. Following the general election of November 5 he was reinstated in his employment on November 18, 1974. The court has not been advised whether or not he had opposition in the general election. On June 8, 1976, he again qualified to run for the same office and was required to take a leave of absence without pay through and including the August 1976 Democratic primary election. He won that election, did not have opposition in the general election, and was reinstated to his employment on September 8, 1976, preceding the November general election. Plaintiff's affidavit shows that as a result of these leaves of absence without pay, he was deprived of the following amounts of monetary compensation:

                1972                    $2,810.00
                1973                     4,780.00
                1976                     3,750.00
                

Rule 58 has not been submitted for United States District Court for the District of Columbia judicial approval or to the Attorney General for him to have the opportunity to disapprove, all pursuant to Section Five....

431 F.Supp. at 921.

Additional Facts as Found by this Court

John White is, and for 17 years has been, employed as an Assistant Coordinator of Student Personnel Services at the Albany Area Vocational Technical School. The vocational school operates during the day and the evening throughout the entire year. Mr. White's responsibilities include admissions, records, counseling, and testing, and require him to be on the job throughout the entire year. His workday Monday through Thursday begins at 2:30 p.m. and ends at 10:30 p.m., except on Tuesday when it ends at 9:30 p.m. On Friday he works from 8:00 a.m. to 4:00 p.m. His employment contract is a twelve-month contract and, among other things, provides that his "annual salary shall be subject to an adjustment on a pro rata basis for the number of days the employee does not work ... due to ... employee's absence when there is no accumulative leave to cover such absence." (Def. Ex. 5).

Before, during, and after the time that Rule 58 was in effect the Dougherty County Board of Education, as a matter of policy applicable to all employees, permitted each employee during the year to be absent from the job without loss of compensation for vacation, sickness, and other reasons. As of April 15, 1980, the date requests for political leave without pay were denied, that policy allowed all employees to be absent with pay for the following:

(a) Jury duty—*¹

(b) Vacation—ten days

(c) Personal leave—three days

(d) Sick leave—*¹

(e) Military leave—*¹

(f) Maternity leave—*¹

Further use of Rule 58 was enjoined by this court on March 27, 1977. The defendant board appealed to the Supreme Court of the United States but also rescinded the rule on April 11, 1977. Mr. White thereafter requested and the defendant board of education granted a leave of absence without pay for the time Mr. White was required to be in Atlanta attending the 1978 session of the Georgia General Assembly— 40 days during January, February, and March. This leave of absence had no effect upon his normal leaves of absence with pay.

In the November, 1978, general election Mr. White was reelected. Earlier that year the board of education had adopted a policy which stated:

WORK SCHEDULE

It shall be the policy of the Dougherty County School Board that each employee fulfill his/her contract in its entirety. That is, each ten (10) month employee shall fulfill his/her contract during the regular academic school year (August-June).

Because an eleven (11) month contract can not be completed in its entirety during the regular academic school year an agreement between the employee and the Superintendent will determine when the additional month will be completed.

Twelve (12) month employees will be expected to work the entire twelve months except for vacation time.

Approved 1978

(Def. Ex. 11).

In response to Mr. White's request that he be allowed to be absent without pay during the 1979 and 1980 legislative sessions the defendant board met on November 20, 1978, and took the following action:

After some discussion of the matter, Mr. Sumter made a motion, which was seconded by Mr. Murphy that the Board reaffirm its position concerning employees fulfilling their contracts in their entirety.

The Board so directed the Superintendent to notify Mr. John White, Mrs. Lillian Parkman² and Mr. Don Cutler,³ the three school employees elected to political offices, of the Board's decision. (footnotes added)

(Def. Ex. 1).

As directed, Superintendent Robertson notified Mr. White and also advised him, Mrs. Parkman, and Mr. Cutler that the board desired to meet with them and discuss the question of how they each could perform their board of education job responsibilities and also serve in their elected offices. On December 20, 1978, that meeting was held. Mr. White was advised that if his request for leave without pay to serve in Atlanta during the upcoming legislative session was granted, a study of the effect of such leave on his job performance would be made over the next two years, and the question would be reconsidered in light of that study. After a great deal of discussion the board, by a four to three vote, allowed leave without pay. (Pl. Ex. 7). The Superintendent then promulgated administrative regulations requiring at least three days notice of a request for leave and approval thereof in advance. (Pl. Ex. 1).

Following the conclusion of the 1980 legislative session the board met on April 15, 1980, and, as promised, again discussed the question of leaves of absence without pay for political purposes. Superintendent Robertson reported that the two-year study showed that the leave without pay policy was having an adverse or harmful effect upon Mr. White's job performance and recommended that further leave without pay for political purposes be denied. By a vote of five to one the Superintendent's recommendation was adopted.

Mr. White served in the general assembly using personal leave and vacation time to account for his absences from the job and limiting his appearances in the legislature to the most essential portions of the...