THOMAS, Judge.
Mary Simmons, Dytisha Goodgame, and Sheila Whetstone-Tuck ("the employees") sued the Coosa County Board of Education ("the Board") and Board Superintendent Todd Wingard, alleging breach-of-contract claims and claims arising under the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975 ("FDA").
The parties stipulated to the following facts:
Superintendent Wingard's affidavit contains the following factual assertions:
The parties filed cross-motions for a summary judgment and briefs in support of their positions. On July 24, 2008, the trial court entered the following judgment, after which the employees timely appealed to this court:
Because this appeal comes to us on stipulated facts and the trial court's ruling on cross-motions for a summary judgment, our review is de novo. See Provident Life & Cas. Co. v. Crean, 804 So.2d 236 (Ala.Civ.App.2001).
Crean, 804 So.2d at 238.
The FDA entitles nonprobationary employees of school systems and other entities
Citing Ex parte Green, 689 So.2d 838 (Ala.1996); Ledbetter v. Jackson County Board of Education, 508 So.2d 244 (Ala. 1987); and Carter v. Baldwin County Board of Education, 532 So.2d 1017 (Ala. Civ.App.1988), the employees contend that the Board's reduction of their work hours constituted a "partial termination" of their employment, thereby triggering the protections of the FDA. Specifically, the employees assert that they were entitled to a hearing before the Board reduced their hours.
Ledbetter is the seminal case holding that partial termination of employment triggers the right to a hearing under the FDA. In Ledbetter,, the school board reduced the regular working hours of three nonprobationary lunchroom workers from 35 to 30 hours per week due to decreased enrollment at an elementary school. The employees requested a hearing under the FDA, and the school board filed a declaratory-judgment action, seeking a ruling that the board had neither "terminated" the employees within the meaning of § 36-26-103, Ala.Code 1975, nor "transferred" them within the meaning of § 36-26-105, Ala.Code 1975—the only adverse employment actions specifically mentioned in the FDA that trigger the right to a hearing. The circuit court entered a declaratory judgment for the school board.
On appeal to the Alabama Supreme Court, the employees in Ledbetter argued that the court should construe the provisions of the FDA dealing with "termination" in pari materia with § 16-24-3, Ala.Code 1975, a part of the Teacher Tenure Act ("TTA"), § 16-24-1 et seq., Ala. Code 1975, which provides, in pertinent part:
(Emphasis added.) Relying on its earlier decision in Ex parte Wright, 443 So.2d 40 (Ala.1983), the supreme court analyzed the case as an invalid "partial termination" of the lunchroom workers' employment. 508 So.2d at 245. The Ledbetter court stated:
Id. See Wright, 443 So.2d at 42 (stating that "[t]here can be no question that there was a partial cancellation, since the teachers' old contract, providing that they would work ten months at a certain annual salary, was replaced by a new contract that provided they would work only nine months at a commensurately reduced annual salary").
In Ledbetter, the supreme court discussed the fact that the trial court had rejected the employees' invitation to construe the FDA in pari materia with the TTA because, the trial court had reasoned, there was a "material distinction" between the FDA and the TTA. Commenting on that reasoning, the supreme court stated:
Ledbetter, 508 So.2d at 245-46. The court decided that, notwithstanding an arguable distinction between the FDA and the TTA, the trial court had erred by failing to acknowledge that the employees had a "`legitimate claim of entitlement'" to, and therefore a "property interest" in, continued employment that made the school board's reduction of their working hours without a hearing a denial of due process. 508 So.2d at 246 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and citing Perry v. Sindermann, 408 U.S. 593, 602-03, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)). See also Stallworth v. City of Evergreen, 680 So.2d 229, 233 (Ala.1996) (stating that Roth held that "a governmental employee's contractual or statutory right to continued employment [is] a property interest falling within the scope of the Fourteenth Amendment's protection," and noting that Goss v. Lopez, 419 U.S. 565, 573, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), held that "`a state employee who under state law, or rules promulgated by state officials, has a legitimate claim of entitlement to continued employment absent sufficient cause for dismissal may demand the procedural protections of due process'").
In Carter—the second case on which the employees in the present case rely—the employees were nonprobationary school-board personnel who performed dual duties, including cafeteria work, custodial work, working as teachers' aides, and driving school buses. Pursuant to the ruling of the United States Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), indicating that the employees were subject to the requirements of the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-208, the school board reduced the employees' weekly work hours to 40 in order to avoid paying them overtime compensation. The employees sought a judgment declaring that they were entitled to notice and a hearing before
Following the ruling in Ledbetter, which had been decided the previous year, this court reversed the trial court's judgment, holding that the employees had a property interest in the "whole" of their employment. 532 So.2d at 1019. The court stated: "We read Ledbetter as including any reduction in regularly scheduled hours as a partial termination since these scheduled hours constituted the employee's employment as a whole." Id.
In Green—the third case upon which the employees here rely—each employee worked in the school lunchroom and also worked as a custodian. The employees' lunchroom duties required more than 20 hours per week; their custodial duties required less than 20 hours per week. The school board terminated their services as custodians, arguing that the employees "had two distinct jobs in the school and that because they worked less than 20 hours as custodians, their termination as custodians was not covered by the [FDA]." 689 So.2d at 839. The Alabama Supreme Court disagreed, stating that the school board's interpretation "would defeat the purpose of the [FDA]." Id. The court held that the plain language of the FDA protected employees who worked 20 or more hours per week and that, irrespective of the distinct jobs the employees performed during the week, they were entitled to the due-process protections established by the FDA because they had a property interest in the "whole" of their employment. Id.
As the foregoing discussion makes clear, a school board's failure to provide its employees with notice and a hearing regarding the reduction of their working hours was analyzed as a denial of due process in Ledbetter, Carter, and Green. The threshold inquiry in any claim of denial of due process is whether the interest asserted rises to the level of a "property interest." See Stephenson v. Lawrence County Bd. of Educ., 782 So.2d 192, 200 (Ala.2000). The employees in Ledbetter, Carter, and Green were entitled to the due-process protections of the FDA because the base contracts pursuant to which they had worked and gained nonprobationary status under the FDA gave them a "legitimate claim of entitlement" to, and, therefore, a "property interest" in, working and being paid for the number of hours that they had been working before the board reduced their hours.
However, "a public employee whose duties are terminable at will has no property interest in continued employment," Mountain v. Collins, 430 So.2d 430, 433 (Ala.1983); see also Davis v. J.F. Drake State Tech. Coll., 854 So.2d 1151 (Ala.Civ.App.2002); and Gainous v. Tibbets, 672 So.2d 800 (Ala.Civ.App.1995), and an employee "has no property rights in a position of temporary employment, where termination may occur at will," Woods v. Milner, 955 F.2d 436, 440 (6th Cir.1992). In Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. 2701, the United States Supreme Court explained:
The employees argue that their "Temporary Work Contracts" are subject to the following rules: (1) that "the terms and provisions of the [Teacher Tenure] Act are to be read into all contracts entered into by school boards and teachers," Haas v. Madison County Bd. of Educ., 380 So.2d 873, 875 (Ala.Civ.App.1980); (2) that "ordinary contract principles do not control when they conflict with the intent of the [teacher] tenure law," Ex parte Wright, 443 So.2d at 41; and (3) that "an attempted waiver of the protection afforded by teacher tenure laws is ineffectual on public policy grounds," Ex parte Wright, 443 So.2d at 42. Relying on the rules stated in Wright and Haas, the employees contend that their "Temporary Work Contracts" are ineffectual because the contract provisions are in conflict with the provisions of the FDA and represent an attempted waiver of the due-process protections guaranteed by the FDA.
Initially, we point out that Wright and Haas, as well as Morgan v. Huntsville City Board of Education, 510 So.2d 260, 261 (Ala.Civ.App.1987), another decision citing the rules stated in Wright in Haas, are cases applying the TTA—not the FDA—and the rules stated in those three cases have not even been applied to all cases alleging a violation of the TTA, much less to cases alleging a violation of the FDA. In Davis v. Russell, 852 So.2d 774 (Ala.Civ.App.2002); Campbell v. Talladega City Board of Education, 628 So.2d 842 (Ala.Civ.App.1993); and Bryan v. Alabama State Tenure Commission, 472 So.2d 1052 (Ala.Civ.App.1985), Alabama appellate courts held that a teacher is not entitled to a TTA hearing upon the nonrenewal of his or her "supplemental contract" with respect to a position such as an athletic coach or a student-activity sponsor.
Furthermore, although Alabama appellate courts have sometimes been receptive to construing the FDA in pari materia with the TTA, see Ledbetter, 508 So.2d at 245, our courts have pointed out that such construction is not always appropriate, see, e.g., Ex parte Athens State Coll., 795 So.2d 709, 714 (Ala.2000) (stating that § 36-26-102, a part of the FDA, should not have been construed in pari materia with § 16-24-8, a part of the TTA, because "[t]enured teachers are afforded special protections. The `special' consideration given tenured teachers is reflected in the Tenure Act's purpose, which is `to promote stability in employment and to prevent a board from discharging a tenured teacher instead
Finally, even if the rules stated in Wright, Haas, and Morgan could, under other circumstances, be applicable to a case arising under the FDA—a question we expressly do not decide—they are not applicable here because the contracts at issue in those three cases were the contracts upon which the teachers had been working when they earned tenure. In Wright, the school board presented tenured teachers with new contracts purporting to reduce their term of employment, and accordingly their pay, from 10 months to 9 months. In Haas, the school board attempted, at the end of a principal's third year of employment as a principal, to extend his probationary period another three years. In Morgan, the school board attempted to extend tenured teachers' contracts from 196 days to 200 days without additional compensation.
In the present case, the "Temporary Work Contracts" were clearly not the base contracts under which the employees had been working when they earned nonprobationary status. Nor did the temporary contracts purport to cancel or nullify the contracts on which the employees had achieved nonprobationary status. The temporary contracts were, instead, "supplemental" to the employees' base contracts. We hold that, if there is an analogy between the FDA and the TTA that can be applied to this case, it lies in the fact that neither act guarantees the right to a due-process hearing before the termination or partial termination of a "supplemental" contract for which the employee cannot earn tenure. We hold that the employees' "Temporary Work Contracts" are analogous to teachers' supplemental employment contracts.
Although § 16-24-12, Ala.Code 1975, a part of the TTA, requires that notice of the nonrenewal of a teacher's supplemental contract be timely—i.e., given "on or before the last day of the term of the school in which the teacher is employed," when nonrenewal of the supplemental contract means that the teacher will not be "`reemploy[ed] for the succeeding school year at the same salary,'" Boone v. Birmingham Bd. of Educ., 45 So.3d 757, 759 (Ala.Civ. App.2008) (quoting § 16-24-12) (emphasis added)—a teacher is not entitled to a hearing upon the nonrenewal of his or her supplemental contract, see Davis v. Russell, supra; Campbell v. Talladega City Bd. of Educ., supra; and Bryan v. Alabama State Tenure Comm'n, supra. The employees in the present case make no argument that there was any defect with respect to the notice they received as to the cancellation of their "Temporary Work Contracts."
The employees' sole argument with respect to the breach-of-contract claim is that, based on Haas, the terms and provisions of the FDA are to be read into the "Temporary Work Contracts" they signed in 1997, thereby guaranteeing them a hearing before their work hours were reduced —an argument that we have previously discussed and rejected. Accordingly, we conclude that the judgment of the trial court is due to be affirmed.
AFFIRMED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
