Opinion
No. 2990440.
Decided April 12, 2002.
Appeal from Dale Circuit Court (CV-94-333).
On Remand from the Supreme Court
This is the third time the parties have been before this court. See McLeod v. Beaty, 718 So.2d 673 (Ala.Civ.App. 1996) ("McLeod I"), reversed, 718 So.2d 682 (Ala. 1997), and Young v. McLeod, [Ms. 2990440, January 5, 2001] ___ So.2d ___ (Ala.Civ.App.) ("McLeod II"), reversed, [Ms. 1000842, June 22, 2001] ___ So.2d ___ (Ala. 2001).
John McLeod, an adjunct instructor of speech and theater at George C. Wallace State Community College ("the college"), sued the college and its then-president, Dr. Larry Beaty, seeking back pay and benefits as a full-time tenured instructor. At different times between 1984 and 1994, McLeod had been employed by the college as a "part-time" or "full-time temporary" faculty member. McLeod argued that the Fair Dismissal Act, § 36-26-100 et seq., Ala. Code 1975 ("the FDA"), applied to him; that the FDA governed tenure requirements for junior-college instructors; and that under the FDA he had earned tenure.
By the time of the decision in McLeod II, the college had a new president, Dr. Linda Young, who was substituted for former President Beaty.
In McLeod II, three members of this court determined that the FDA applies to nontenured junior college instructors such as McLeod. Two members of the court concluded that the FDA does not apply and that, instead, the Alabama Trade School and Junior College Authority Act, § 16-60-80 et seq., Ala. Code 1975 ("the ATSJCAA"), states the tenure requirements for instructors like McLeod. Although this court was divided in McLeod II over whether the FDA or the ATSJCAA applied to McLeod, all five members of the court agreed that McLeod had not attained tenure under the FDA.
McLeod appealed to the Alabama Supreme Court, which held that this court's determination that the FDA applied to McLeod had become the law of the case because the college did not challenge it by cross-petition. The supreme court, however, reversed this court's holding that McLeod had not obtained tenure under the FDA. The supreme court remanded the case for this court "to consider the issues it has not yet addressed but that need to be addressed because of [the reversal by the supreme court]." ___ So.2d at ___.
The following issues are not open to reexamination on remand from the Alabama Supreme Court; they were decided adversely to the college on a prior appeal or were not challenged in the supreme court by a cross-petition for a writ of certiorari. They are, therefore, the law of the case: (1) that McLeod's claims against Dr. Young and the college are not barred by the sovereign immunity granted to the State by § 14 of the Alabama Constitution of 1901, see McLeod I, 718 So.2d at 684; (2) that the FDA applies to McLeod, see McLeod II, ___ So.2d at ___; (3) that for the 9 academic quarters in which McLeod taught 15 credit hours, the contract that McLeod signed that includes provisions designating his employment as "part-time," and "nontenured" and stating that his employment "did not count toward tenure," does not override the FDA, see McLeod II, ___ So.2d at ___ n. 1; and (4) that McLeod's out-of-class activities in preparation for teaching his classes count toward the 20 or more hours per week of "required duties" that are necessary for McLeod to be deemed "full-time," and thereby to be eligible for tenure, under the FDA, see McLeod II, ___ So.2d at ___.
The following issues must be determined on this remand: (1) whether the circuit court's finding that "McLeod's duties required 20 or more hours in each normal working week of the school term" is supported by the record; and (2) whether the circuit court's conclusion that "Mr. McLeod worked and was employed for sufficient time to attain tenure" is correct.
Section 36-26-102, Ala. Code 1975, a part of the FDA, states that after an employee has completed his or her probationary period, the employee shall be deemed employed on a nonprobationary status and shall not be terminated except for certain enumerated reasons. Section 36-26-101 states that the probationary period for "employees as defined in Section 36-26-100" is "a period not to exceed three years from the date of his or her initial employment." Section 36-26-100, defining "employees," states, in pertinent part:
"The term `employees' as used in this article, is deemed to mean and include all persons employed by . . . two-year educational institutions. . . . Only full-time employees . . . 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. . . ."
On remand after the supreme court's reversal of our judgment in McLeod I, the circuit court held a hearing on McLeod's factual claims. McLeod testified that for the 9 academic quarters during which he was employed to teach 15 credit hours, he taught three 5-hour basic speech classes. McLeod acknowledged that, because the class periods at the college are 50 minutes long rather than a full hour, a 15-credit-hour schedule required him to be in class only 12½ hours per week. He testified, however, that the 15-credit-hour schedule required him to expend 20 or more hours each week, including out-of-class preparation. McLeod said that, in addition to classroom time, he also spent time each week on the following activities: devising a syllabus; reviewing the textbook; preparing handouts; planning his lectures; preparing, grading, and administering tests and make-up tests; maintaining class rolls and records; and conferring with students.
Dr. Ralph Purvis, the chairman of the fine arts department at the college and McLeod's supervisor, testified that, in his opinion, it would be impossible for any instructor to teach a 15-credit-hour schedule and spend less than 20 hours per week on his required duties. Purvis agreed with McLeod's assessment of the out-of-class activities required for McLeod's position and gave the following estimates of the time Purvis thought that was required to perform some of those duties:
Activity Time expended per week on activity
Devising a syllabus 1 hour
Planning lectures 1 hour
Preparing, grading, and administering tests and make-up tests 7 hours
Maintaining class rolls and records 1 hour
Conferring with students 1 hour
Purvis characterized his estimates as "conservative." When he was asked whether McLeod "work[ed] 35 hours a week," Purvis replied:
"A. Probably, maybe thirty, I don't know.
"Q. [By counsel for McLeod] Close to it?
"A. Probably.
"Q. Well, he would average 35 hours a week or more?
"A. I would say maybe 30 to 35."
We have carefully read the testimony presented at the hearing, and we conclude that the trial court's findings of fact are supported by the record.
"As we have countless times stated, where, as here, the trial court's findings are based upon evidence heard ore tenus, those findings are favored with a presumption of correctness and will not be disturbed on appeal if supported by evidence or any reasonable inference therefrom, unless plainly and palpably erroneous or manifestly unjust."
Davis v. Owen, 461 So.2d 1300, 1302 (Ala. 1984). See also Barnes v. Patrick Henry State Junior College, 515 So.2d 1257, 1258 (Ala.Civ.App. 1987).
In Dennis v. Dobbs, 474 So.2d 77 (Ala. 1985), our supreme court held that there was sufficient evidence to support the trial court's finding that a student health nurse at Gadsden State Junior College was a "full-time" employee based on the following testimony by the nurse:
"[The nurse] testified she worked seven hours in her office on days that school was in session, with no break for lunch. The office hours for the school nurse are listed in the school catalog as 8:00 a.m. to 3:00 p.m., or seven hours. [The nurse's] job description states that in addition to these office hours, she will be `on call in case of emergencies.' [The nurse] testified she was often called back nights, weekends, and days between quarters by `dorm mothers' and students. She further testified that she often stayed later than 3:00 p.m. to take care of sick or injured students and drive them to the doctor, if needed. [Her] job description also called for her to perform `other related duties assigned.' [The nurse] testified she performed such diverse tasks as coordinating health fairs, making trips as the cheerleader sponsor, and running the hospitality room at the State Women's Basketball Tournament. All of these activities were done after her posted office hours. [The nurse] only drew seventy percent of the salary for a full-time employee, however. [The nurse] testified she considered herself a full-time employee in every respect except the way her salary was calculated. [The president of the junior college] testified that [the nurse] received the same fringe benefits as a full-time employee, including sick leave, professional leave, personal leave, annual leave, insurance, and holidays. [The president's] letter to [the nurse], in which he states the letter is written pursuant to Policy 614.011, also could lead to an inference that Gadsden State considered [the nurse] a full-time employee.
"Based on the evidence above, we cannot say that the trial court was plainly and palpably erroneous in finding that [the nurse] was a full-time employee. . . ."
474 So.2d at 79-80. We conclude that the trial court's finding that "McLeod's duties required 20 or more hours in each normal working week" is supported by the record. Section 36-26-100 also states, however, that the "required duties" of a full-time employee must be performed "each normal working week of the school term." (Emphasis added.) After remand from the supreme court, this court requested the parties to brief the following questions: (1) What is the meaning of "school term" as used in § 36-26-100? (2) For how many "school terms" has McLeod been employed full time? (3) Does that number of "school terms" amount to three years within the meaning of § 36-26-101?
The parties agree that a "school term" at the college was, at the times relevant to this appeal, an academic quarter; that McLeod was employed for a total of 9 quarters, during which he taught at least 15 or more credit hours; and that 9 quarters qualifies as "three years" within the meaning of § 36-26-101 and Ex parte Clayton, 552 So.2d 152, 154-55 (Ala. 1989) (holding that, for purposes of the FDA, an employee's three-year time of service need not be continuous or consecutive). The college does not argue that McLeod has not attained tenure because he did not amass the required number of hours per "school term" within "a period not . . . exceed[ing] three years from the date of his . . . initial employment." See § 36-26-101. Therefore, we hold that the circuit court's conclusion that McLeod "worked and was employed for sufficient time to attain tenure" under the FDA is correct.
The college is now on the semester system.
The circuit court did not state in its findings or conclusions whether McLeod was to be tenured at 20 hours per week or at 35 hours per week, but we conclude that the record supports a determination only as to the lower figure. McLeod did not testify that he worked 35 hours per week, and Purvis, his supporting witness, testified somewhat equivocally, concluding that McLeod's total was "maybe 30 to 35" hours.
The judgment of the circuit court is affirmed.
AFFIRMED.
Yates, P.J., and Thompson and Pittman, JJ., concur.
Murdock, J., concurs in the result.