Bonnie Curry v. Russell County Board of Education et al.

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REL: 04/19/2013 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2012-2013 2110917 Bonnie Curry v. R u s s e l l County Board o f Education e t a l . Appeal from R u s s e l l C i r c u i t (CV-12-900069) PITTMAN, Judge. Bonnie Curry the Russell hearing Court held appeals Circuit by from an a d v e r s e Court the t r i a l ("the t r i a l court judgment e n t e r e d by court") pursuant following a t o t h e Teacher 2110917 Accountability Act, § 16-24B-1 et seq., Ala. Board of Code 1975. We affirm. In 2009, board") their County executed a written agreement contract 30, Russell Curry and the 2012. chief principal Section executive cancellation and that employing the for 1 16-24B-3(f)(2) officer 2 of the contract would memorializing employ period ("the Curry as e x p i r i n g on provides that, employing board a June unless the recommends 3 or nonrenewal of a c o n t r a c t p r i n c i p a l ' s c o n t r a c t board, years. board a three-year recommendation contract with three that Education the the is accepted employing board contract principal by a shall majority enter of the into a new f o r a p e r i o d of However, § 1 6 - 2 4 B - 3 ( c ) , A l a . Code 1975, at least provides S e c t i o n 1 6 - 2 4 B - 2 ( 2 ) , A l a . Code 1975, provides that a c o n t r a c t p r i n c i p a l " [ i ] n c l u d e s o n l y t h o s e p e r s o n s h i r e d on o r after July 1, 2000, and certified f o r the position of p r i n c i p a l as p r e s c r i b e d by t h e S t a t e B o a r d o f E d u c a t i o n and who are employed by an employing board as the chief a d m i n i s t r a t o r of a school " 1 S e c t i o n 1 6 - 2 4 B - 2 ( 1 ) , A l a . Code 1975, defines a chief e x e c u t i v e o f f i c e r as " [ t ] h e c h i e f a d m i n i s t r a t i v e o f f i c e r o f the employing board, i n c l u d i n g the superintendent of any p u b l i c county or c i t y school system " 2 S e c t i o n 1 6 - 2 4 B - 2 ( 5 ) , A l a . Code 1975, provides that an employing board " [ i ] n c l u d e s a l l l o c a l boards of education 3 " 2 2110917 t h a t the nonrenewal of a c o n t r a c t p r i n c i p a l ' s effected by the chief executive officer's c o n t r a c t may making recommendation to the employing board t h a t the renewed favor of and of the "[t]he a that majority least decision of chief political the [not reasons." be March based renew on any (Emphasis 2012, superintendent") to the 90 recommended of days the the reason a chief of an end i n favor employing school executive officer's p r i n c i p a l ' s c o n t r a c t n o t be the contract the principal's personal or of Curry's ("the contract " D e c l i n i n g Test Scores," of Curry's of that S e c t i o n 1 6 - 2 4 B - 3 ( e ) ( 2 ) a . , A l a . Code 1975, a majority that and superintendent nonrenewal the board voted except end added.) and before officer in the provides contract board's to "Lack of L e a d e r s h i p " than further be voting days before executive written c o n t r a c t not board's 90 16-24B-3(c) may majority at Section contract] more employing contract. board due the recommendation employing In of a be recommendation contract, voted that renewed p u r s u a n t to § that, after i n favor a of contract 16-24B-3(c), principal "may request a nonjury, expedited evidentiary hearing to demonstrate that the chief executive 3 a recommendation. provides b o a r d has and, 2110917 o f f i c e r ' s or s u p e r v i s o r ' s recommendation t o nonrenew t h e c o n t r a c t was i m p e r m i s s i b l y b a s e d u p o n a p e r s o n a l or p o l i t i c a l reason, or the recommendation was a p p r o v e d b a s e d upon p e r s o n a l or p o l i t i c a l r e a s o n s o f the chief executive officer, s u p e r v i s o r , or the e m p l o y i n g b o a r d , w h i c h s h a l l be t h e s o l e i s s u e s a t a n y s u c h h e a r i n g . The c o n t r a c t p r i n c i p a l s h a l l b e a r the burden of proof by a preponderance of the evidence. The h e a r i n g s h a l l be b e f o r e t h e circuit c o u r t i n the j u d i c i a l c i r c u i t of the county i n which t h e e m p l o y i n g b o a r d s i t s . ... " (Emphasis added.) Curry requested accordance with such a entered a preponderance political of been before finding that and evidence based upon the the court court trial had failed the that an trial trial hearing, that Curry the the nonrenewal impermissible in held court to prove of by her personal or reason. Sections provide Following a judgment had hearing § 16-24B-3(e)(2)a., hearing. contract a for 16-24B-3(g) an appeal to and 16-24B-5(a), this court from Ala. a Code circuit 1975, court's judgment f o l l o w i n g a h e a r i n g h e l d i n a c c o r d a n c e w i t h § 16-24B3 ( e ) ( 2 ) a . S e c t i o n 16-24B-3(g) p r o v i d e s t h a t " [ t ] h e d e c i s i o n of the circuit appealable court to nonevidentiary the ... shall Alabama appeal be Court final of i n which review 4 Civil and exclusively Appeals, i s l i m i t e d to the as a record 2110917 from the e x p e d i t e d chapter." "[a]ll In evidentiary hearing pertinent appeals of a evidentiary hearing A p p e a l s " and a written Civil notice w i t h §§ final shall of 14 provides [regarding of her was contract Court of Civil great weight reversible the a evidence expedited shall r e c e i p t of court principal an be finds filing Court the of final in accordance the circuit proved has the by a his or nonrenewal impermissible affirmed judge on decision of personal or appeal unless the to the be against evidence." by that refusing whether Curry's evaluations prescribed the by the Civil " this that upon argues error of " [ t ] h e d e c i s i o n of the contract ... that 16-24B-5(a). Section 16-24B-5(b), A l a . based first clerk the to that the after appeal Appeals of days the an the reason] Curry provides from judge whether preponderance with this the Alabama Court of circuit 16-24B-3(g) and political l i e with the perfected Code 1975, 16-24B-5(a) decision appeal within d e c i s i o n of Curry § for in t h a t s u c h an a p p e a l " s h a l l be p e r f e c t e d b y Appeals written part, as p r o v i d e d State the to had Board 5 trial admit court committed testimony regarding been performed of Education. i n the manner During the 2110917 expedited evidentiary hearing, the following colloquy occurred: "[The board's counsel]: Your Honor, I would object to this line of questioning regarding e v a l u a t i o n s . T h a t i s n o t a n i s s u e i n t h i s c a s e . The i s s u e , the s o l e i s s u e under the s t a t u t e i s whether o r n o t h i s r e c o m m e n d a t i o n was b a s e d o n p e r s o n a l o r political reasons. "[Curry's counsel]: Judge, the s t a t u t e 1 would agree w i t h her t h a t the [ f i r s t ] i s s u e today i s personal or p o l i t i c a l reasons. But the s t a t u t e a l s o s a y s t h a t i f t h e e v a l u a t i o n i s n o t done p r o p e r l y , then the p r i n c i p a l ' s contract i s automatically e x t e n d e d f o r a y e a r . Now, I s u p p o s e we c o u l d come back, i n a d i f f e r e n t t h e o r y and hear t h a t m a t t e r , b u t , I mean, t h e r u l e s a i d , I t h i n k , t h a t e v e r y t h i n g c o u l d be c o n s i d e r e d h e r e t o d a y . "[The b o a r d ' s c o u n s e l ] : And I w o u l d o b j e c t t o t h a t . T h e r e ' s no p r o v i s i o n i n t h i s e x p e d i t e d hearing procedure f o r the c o n s i d e r a t i o n of whether or not an evaluation was done or whether or not an e v a l u a t i o n was d o n e p r o p e r l y . "[Curry's counsel]: Judge, Section "[The b o a r d ' s c o u n s e l ] : And t h a t ' s i n S e c t i o n (e), e x c u s e me, 1 6 - 2 4 B - 3 ( e ) ( 2 ) a . i s t h e governing p r o c e d u r e t h a t we're under t o d a y . " [ C u r r y ' s c o u n s e l ] : A n d i n t h e same s e c t i o n o f law, 16-24B-3(m) states that i f the contract principal i s not evaluated as r e q u i r e d b y this s e c t i o n , h i s o r h e r c o n t r a c t s h a l l be e x t e n d e d f o r one a d d i t i o n a l c o n t r a c t y e a r f o r e a c h c o n t r a c t y e a r n o t e v a l u a t e d up t o t h r e e years. which "[The b o a r d ' s c o u n s e l ] : T h a t ' s n o t u n d e r ( e ) , (e) i s the subsection that deals with 6 2110917 expedited hearings. You're quoting separate paragraph dealing with evaluations. (m), w h i c h i s a the issue of "[Curry's counsel]: I t ' s under the Teacher A c c o u n t a b i l i t y A c t . I would agree that personal and p o l i t i c a l i s p a r t of i t , but t h i s i s under the very same l a w . "[The board's counsel]: The statute under ( e ) ( 1 ) , e x c u s e me, ( e ) ( 2 ) a . does n o t p r o v i d e f o r t h e h e a r i n g on t h e i s s u e o f e v a l u a t i o n s . I t s t a t e s t h a t t h e s o l e i s s u e a t t h e h e a r i n g w i l l be w h e t h e r o r n o t t h e r e were p e r s o n a l o r p o l i t i c a l r e a s o n s . T h a t ' s t h e s o l e i s s u e . I t does n o t s t a t e t h a t i t i n c l u d e s any evaluations. at "THE COURT: I'm this point." (Emphasis 16-24B-3(i)(1), "[t]he chief executive least principal" annually 16-24B-3(m), the objection contract by the A l a . Code for each shall contract provides that or h i s or her designee, shall be State 1975, Board provides of each not contract s h a l l be p e r f o r m e d i n a of Education." that " [ i ] f a as r e q u i r e d by t h i s extended year 1975, the performance "[t]he evaluation i s not evaluated her A l a . Code officer, evaluate and t h a t manner p r e s c r i b e d principal to sustain added.) Section at going one additional evaluated up contract s e c t i o n , h i s or contract year three years." However, § 1 6 - 2 4 B - 3 ( e ) ( 2 ) a . c l e a r l y and u n a m b i g u o u s l y provides 7 to Section 2110917 that, when is a nonrenewal pursuant contract there of to § 16-24B-3(c) a contract and he or principal's she h e a r i n g i n the a p p r o p r i a t e c i r c u i t court pursuant 3(e)(2)a., hearing the are only issues before whether "the chief supervisor's recommendation impermissibly based the or the court t h a t the because reason. was independent her her Curry she did t o § 16-24Bcourt in that officer's or contract was the p o l i t i c a l reason, based chief executive upon officer, not tend to or personal argue or supervisor, to the trial sought to introduce regarding e v a l u a t i o n s w e r e p e r f o r m e d was she prove argued admissible that to because the the the admissible nonrenewal reason, contract superintendent's was she based was pursuant upon an entitled to § trial i t would claim that, regardless contract political or a of her b a s e d u p o n an i m p e r m i s s i b l e p e r s o n a l o r p o l i t i c a l Rather, evidence of approved evidence i t would c o n t r a c t was of was board." manner i n w h i c h h e r nonrenew a personal reasons of the employing to circuit executive upon recommendation political the requests tend of whether to an that to the impermissible 16-24B-3(m) that prove her nonrenewal personal automatic a l l e g e d f a i l u r e to perform 8 court based or extension upon the her e v a l u a t i o n s i n 2110917 the manner Therefore, because presented 612 So. court by we 2d 409, 410 court, appeal regarding we the p e r f o r m e d was prove that an a p p e l l a t e cannot manner admissible court's t h e argument t h a t independent nonrenewal personal claim that, was reason, appellate time on to by t h e t r i a l argument court), i n that was based upon Rather, we purpose regardless upon of an evaluations an can of proving whether the impermissible s h e was e n t i t l e d t o a n a u t o m a t i c alleged i n t h e manner to admissible o f h e r c o n t r a c t p u r s u a n t t o § 16-24B-3(m) superintendent's were i t would tend s u c h e v i d e n c e was based evidence evaluations reason. f o r the sole of her contract or p o l i t i c a l extension the offered were i s restricted review Curry's or p o l i t i c a l an f o r the f i r s t of her contract consider Curry's that on t h e g r o u n d t h a t personal i t was an which impermissible though Education. arguments t h a t (holding consider in of s e e A n d r e w s v. M e r r i t t O i l Co., arguments r a i s e d the nonrenewal only Board only e v i d e n c e and arguments c o n s i d e r e d this even State ( A l a . 1992) consider and t h a t the can c o n s i d e r to the t r i a l cannot appeal the prescribed failure prescribed Education. 9 by to b a s e d upon perform the State Board her of 2110917 " ' I n i n t e r p r e t i n g t h e p r o v i s i o n s o f an Act a court i s required t o ascertain the i n t e n t o f t h e l e g i s l a t u r e as e x p r e s s e d and t o e f f e c t u a t e t h a t i n t e n t . L e w i s v. Hitt, 370 So. 2 d 1369 ( A l a . 1979) . The l e g i s l a t i v e i n t e n t may b e g l e a n e d f r o m t h e language used, t h ereason andn e c e s s i t y f o r the a c t , and t h e purpose sought t o be o b t a i n e d by i t s passage. Ex p a r t e H o l l a d a y , 466 S o . 2 d 9 5 6 ( A l a . 1 9 8 5 ) . W o r d s u s e d i n t h e s t a t u t e must be g i v e n t h e i r natural, p l a i n , o r d i n a r y , a n d commonly u n d e r s t o o d meaning, a n d where p l a i n language i s used a c o u r t i s bound t o i n t e r p r e t t h a t language t o mean e x a c t l y what i t says. Coastal States Gas T r a n s m i s s i o n Co. v . A l a b a m a P u b l i c S e r v i c e C o m m i s s i o n , 524 S o . 2 d 357 (Ala. 1988); Alabama Farm Bureau Mutual Casualty Insurance Co. v. City of H a r t s e l l e , 460 S o . 2 d 1 2 1 9 ( A l a . 1 9 8 4 ) . I f the language o f t h e s t a t u t e i s c l e a r and unambiguous, t h e n t h e r e i s no room f o r judicial construction and t h e c l e a r l y e x p r e s s e d i n t e n t o f t h e l e g i s l a t u r e must be g i v e n e f f e c t . Dumas B r o t h e r s M a n u f a c t u r i n g Co. v . S o u t h e r n G u a r a n t y I n s u r a n c e C o . , 4 31 S o . 2 d 534 ( A l a . 1 9 8 3 ) ; Town o f L o x l e y v . R o s i n t o n Water, Sewer, & F i r e Protection Authority, I n c . , 376 So. 2 d 705 (Ala. 1979).' " T u s c a l o o s a C n t y . Comm'n v . D e p u t y S h e r i f f s ' A s s ' n c n a con /T / A o f T u s c a l o o s a 0 ^n4t ,y, . , 5o8 9 S ^ . 2 d 6 8 7 , 6 o n 9 ( A -l Ta. . C o 8 1 9 9 1 ) . ' [ A ] c o u r t may e x p l a i n t h e l a n g u a g e [ina s t a t u t e ] , b u t i t may n o t d e t r a c t f r o m o r a d d t o t h e statute.' Water Works & Sewer Bd. o f Selma v. Randolph, 833 S o . 2 d 6 0 4 , 607 ( A l a . 2002) . 'Furthermore, [the appellate courts are] not at liberty to rewrite statutes Ex p a r t e C a r l t o n , 867 S o . 2 d 3 3 2 , 3 3 8 ( A l a . 2 0 0 3 ) . " 10 2110917 Walker 12 v. Montgomery C n t y . Bd. ( A l a . C i v . App. As noted unambiguously o f E d u c . , 85 S o . 3d 1008, 1011- clearly and before the trial 2011). above, § provides that 16-24B-3(e)(2)a. the only issues c o u r t i n a h e a r i n g r e q u e s t e d p u r s u a n t t o t h a t Code s e c t i o n whether "the chief recommendation based upon to a of the in officer's the or approved chief employing board." did nonrenew personal r e c o m m e n d a t i o n was reasons executive contract political based was supervisor's impermissibly reason, upon p e r s o n a l or executive officer, T h e r e f o r e , we or are or the political supervisor, or conclude that the t r i a l the court n o t e r r i n r e f u s i n g t o admit e v i d e n c e r e g a r d i n g t h e manner which offered before Curry's f o r the the t r i a l Curry against next evaluations sole purpose court. See argues that the great weight were performed because of proving a claim § that i t was was not 16-24B-3(e)(2)a. the of the trial court's judgment evidence. "'Because the t r i a l c o u r t heard ore tenus evidence d u r i n g the [hearing], the ore tenus standard of review a p p l i e s . Our ore tenus standard of review is well s e t t l e d . "'When a j u d g e i n a n o n j u r y c a s e h e a r s o r a l t e s t i m o n y , a j u d g m e n t b a s e d on f i n d i n g s o f f a c t b a s e d on t h a t t e s t i m o n y w i l l be p r e s u m e d c o r r e c t and w i l l n o t be 11 is 2110917 d i s t u r b e d on a p p e a l e x c e p t f o r a p l a i n a n d p a l p a b l e e r r o r . ' " S m i t h v . M u c h i a , 854 So. 2d 85, 92 ( A l a . 2003) (quoting A l l s t a t e Ins. Co. v . S k e l t o n , 675 So. 2 d 3 7 7 , 379 (Ala. 1996)). "'"'The ore tenus rule is grounded upon the p r i n c i p l e t h a t when t h e t r i a l c o u r t h e a r s oral t e s t i m o n y i t h a s an o p p o r t u n i t y to evaluate the demeanor and c r e d i b i l i t y of w i t n e s s e s . ' Hall v . M a z z o n e , 486 So. 2 d 4 0 8 , 410 ( A l a . 1986) . The r u l e a p p l i e s t o 'disputed issues of fact,' whether the dispute is based e n t i r e l y upon o r a l t e s t i m o n y or upon a combination of oral testimony and documentary e v i d e n c e . B o r n v . C l a r k , 662 So. 2 d 6 6 9 , 672 ( A l a . 1 9 9 5 ) . The ore tenus standard of review, s u c c i n c t l y s t a t e d , i s as f o l l o w s : [W]here the evidence has been [presented] ore tenus, a presumption of c o r r e c t n e s s attends the t r i a l c o u r t ' s c o n c l u s i o n on i s s u e s o f fact, and this Court will not disturb the t r i a l c o u r t ' s conclusion unless i t i s clearly erroneous and against the great weight of the evidence, but will affirm the judgment i f , under any reasonable aspect, i t 12 2110917 is supported by credible evidence.'" "'Reed v. B o a r d o f T r s . f o r Alabama S t a t e U n i v . , 778 S o . 2 d 7 9 1 , 7 9 5 ( A l a . 2 0 0 0 ) ( q u o t i n g R a i d t v . C r a n e , 342 S o . 2 d 3 5 8 , 360 (Ala. 1977)). However, "that presumption [of correctness] has no a p p l i c a t i o n when t h e t r i a l c o u r t i s s h o w n to have i m p r o p e r l y a p p l i e d t h e l a w t o t h e f a c t s . " Ex p a r t e B o a r d o f Z o n i n g A d j u s t m e n t of Mobile, 636 S o . 2 d 4 1 5 , 417 ( A l a . 1 9 9 4 ) .' "Kennedy v. B o l e s (Ala. 2010)." Fort Morgan Civic 1042, 1045-46 trial court hearing, Invs., Ass'n v. C i t y ( A l a . 2012) receives "we must the I n c . , 53 S o . 3 d 6 0 , '"'the favorable to McClellan, 959 S o . 2 d 6 5 8 , 661 Diggs v. Diggs, quoting prevailing evidence evidence in 910 S o . 2 d 1 2 7 4 , 1 2 7 5 ( A l a . C i v . App. 2000), q u o t i n g So. 2 d 1 2 9 , 131 appellate determination ( A l a .C i v . App. a will regarding an not issue 13 tenus light most McClellan v. (quoting ( A l a .C i v . App. 2005), 769 S o . 2 d 3 3 0 , i n t u r n D r i v e r v. Hice, 618 1993)). t h a t , under the ore tenus standard court So. 3d ore ( A l a . C i v . App. 2006) i n t u r n A r c h i t e c t u r a , I n c . v. M i l l e r , In s t a t i n g 100 i n an part[ies].'"'" 332 an Shores, ( e m p h a s i s a d d e d ) . M o r e o v e r , when a conflicting view of Gulf 67-68 disturb of fact, a of trial "'"'unless review, court's i t i s 2110917 clearly erroneous evidence, is but will supported Ass'n, 100 by So. Inc., 53 So. Board of Trs. (Ala. 2000), 360 and affirm 3d 3d at 60, determinations we State Univ., i n t u r n R a i d t v. regarding 778 i f credible Curry, who the 342 i s African-American, says, the great weight nonrenewal impermissible personal of her of 14 trial fact under the is any factual court i s against of the of the evidence contract reason 358, evidence.'"'" argues t h a t the because, the 2d Id. court i s a g a i n s t the great weight that 795 c o u r t based i t s judgment, of the t r i a l she of "'"'if, supports v. 791, So. issue credible evidence evidence. 2d Invs., indicated that a of the evidence by Boles So. Crane, a disputed i t i s supported of Civic i n t u r n Reed upon w h i c h the t r i a l great weight Morgan quoting cannot h o l d t h a t the judgment of the t r i a l the aspect, i t v. the supreme c o u r t has Accordingly, Fort the Kennedy not a g a i n s t the great weight Id. reasonable of (quoting f o r Alabama aspect, weight (Ala. 2010), 68 determination reasonable great evidence,'"'" 1045 quoting the i f , u n d e r any credible (Ala. 1977)), court's against was racism. based However, judgment evidence indicated upon the the trial 2110917 court the had before nonrenewal i t conflicting of her contract testimony was regarding b a s e d upon whether racism. " ' " ' A p p e l l a t e c o u r t s do n o t s i t i n j u d g m e n t o f disputed evidence that was presented ore tenus before the t r i a l c o u r t Ex p a r t e R o b e r t s , 796 So. 2d 349, 351 ( A l a . 2001) (quoting Ex parte B r y o w s k y , 676 So. 2 d 1 3 2 2 , 1324 ( A l a . 1 9 9 6 ) ) . "When the evidence i n a case i s i n c o n f l i c t , the t r i e r of f a c t has t o r e s o l v e the c o n f l i c t s i n t h e testimony, and i t i s n o t w i t h i n t h e p r o v i n c e o f t h e a p p e l l a t e court to reweigh the testimony and s u b s t i t u t e i t s own judgment for that of the trier of fact." D e l b r i d g e v. C i v i l S e r v . Bd. o f T u s c a l o o s a , 481 So. 2 d 9 1 1 , 913 ( A l a . C i v . App. 1985). "[A]n a p p e l l a t e c o u r t may not s u b s t i t u t e i t s judgment f o r t h a t of t h e t r i a l c o u r t . To do s o w o u l d be t o r e w e i g h t h e evidence, w h i c h Alabama law does not allow." Ex parte Foley, 864 So. 2d 1094, 1099 ( A l a . 2003) (citations omitted).'" F r i e d m a n v. Ex parte R.E.C., 899 The was the Friedman, So. person that months b e f o r e contract, who he he and had had So. 23, 28 279 (Ala. who thought to lack ( A l a . 2007) i s Caucasian, recommended the decided that 2d 272, 2d superintendent, contract, scores 971 of (quoting 2004)). testified that nonrenewal of Curry's decision for several about the recommend t h e leadership nonrenewal and of declining were h i s r e a s o n s f o r recommending the n o n r e n e w a l of contract. He further African-American testified played no part 15 that he the fact that i n his d e c i s i o n to Curry her test her is recommend 2110917 the nonrenewal of Curry's testified that, principal, he c o n s i d e r e d h e r f a i l u r e available in contract. evaluating t o communicate with Curry's and to her failure enhance The Curry's school No C h i l d superintendent had never Left Behind was n e e d e d , t h a t was available of the students testified to meet that, at her although the test-score A c t o f 2 0 0 1 , 20 U.S.C. § 6 3 0 1 e t s e q . , scores school year every board's Caucasian curriculum-instruction w i f e o f one o f t h e b o a r d performing some of the data director, Curry "unsatisfactory" a i sthe i n favor c o n t r a c t , t e s t i f i e d t h a t she had the superintendent numerical range. year. who m e m b e r s who v o t e d h i s f i n a l evaluation of Curry, assigned a s c o r e s h a d shown a d e c l i n e i n t h e s i n c e t h e 2007-2008 s c h o o l the nonrenewal o f Curry's collected had readily f o r t h e "Adequate Y e a r l y P r o g r e s s " mandated by t h e study of those of failed a of students, her i n which i n s t r u c t i o n also as t o analyze test scores i n experience longitudinal The t o make h e r s e l f t o make u s e o f t e c h n o l o g y the learning school. standards the areas superintendent leadership the parents lack of problem solving, her f a i l u r e order t o determine The score had used i n an e v a l u a t i o n t h a t that fell within The c u r r i c u l u m - i n s t r u c t i o n 16 the director 2110917 further testified Curry the t h a t she i s not a r a c i s t , had i s African-American data used affected she had collected e v a l u a t i o n o f C u r r y p e r f o r m e d by final superintendent, collection that the superintendent not the her not d i s c u s s e d the data the s u p e r i n t e n d e n t ' s recommendation t h a t Curry's be that and husband had by t h a t the f a c t she of and her for the or c o n t r a c t not renewed. The four nonrenewal testified of board Curry's t h a t the no part in their of her their members in whom favor are to vote them vote in i n favor of the testified favor of that the they t h e b o a r d member who data testified his wife evaluation that of Curry's Curry had i s married to the t h a t he Curry or the c o n t r a c t not introduced be for nonrenewal had based of her addition, not d i s c u s s e d superintendent's superintendent's the final recommendation renewed. testimony n o n r e n e w a l o f h e r c o n t r a c t was the played curriculum-instruction and h i s w i f e had collected the Caucasian, nonrenewal c o n t r a c t on t h e s u p e r i n t e n d e n t ' s r e c o m m e n d a t i o n . I n director of fact that Curry i s African-American decision to voted c o n t r a c t , a l l of contract. A l l of decision who tending to prove that the b a s e d upon t h e f a c t t h a t she i s 17 2110917 African-American. stated, However, i n i t s judgment, the trial court in pertinent part: "Upon c o n s i d e r a t i o n o f the sworn testimony and e x h i b i t s e n t e r e d i n t o e v i d e n c e , t h e C o u r t makes t h e following finding: Plaintiff, Bonnie Curry, was hired as a contract principal w i t h the Russell County Board of Education. P r i o r to the e x p i r a t i o n of her employment w i t h the R u s s e l l County School Board, Mike Green, C h i e f E x e c u t i v e O f f i c e r of the Russell County School System recommended t o the Russell County School Board t h a t Bonnie Curry's employment c o n t r a c t w i t h the R u s s e l l County S c h o o l B o a r d n o t be r e n e w e d . Two r e a s o n s w e r e c i t e d f o r t h e non-renewal: declining test scores and lack of l e a d e r s h i p s k i l l s . The R u s s e l l C o u n t y S c h o o l B o a r d voted at a r e g u l a r l y scheduled board meeting to a c c e p t Mr. Green's recommendation, and n o t renew Bonnie C u r r y ' s e m p l o y m e n t c o n t r a c t . The vote was f o u r b o a r d members v o t i n g n o t t o r e n e w and t h r e e b o a r d members v o t i n g t o r e j e c t t h e r e c o m m e n d a t i o n o f t h e c h i e f e x e c u t i v e o f f i c e . The f o u r B o a r d m e m b e r s v o t i n g to accept the recommendation are Caucasian. The three Board members voting to reject the recommendation are [A]fro-[A]merican. The complainant, Bonnie Curry i s [A]fro-[A]merican. " C o m p l a i n a n t , B o n n i e C u r r y , t e s t i f i e d t h a t she believed that the decision to terminate her e m p l o y m e n t was b a s e d on r a c i a l r e a s o n s , t w o o f t h e School Board Members who voted against the t e r m i n a t i o n of Bonnie C u r r y ' s employment c o n t r a c t stated in their o p i n i o n s t h a t the decision to terminate her employment was based on racial reasons. A l l four Russell County School Board M e m b e r s who v o t e d t o a c c e p t t h e r e c o m m e n d a t i o n n o t to renew Bonnie Curry's Employment Contract t e s t i f i e d t h a t t h e i r d e c i s i o n was b a s e d s o l e l y u p o n the C h i e f E x e c u t i v e ' s recommendation which cited d e c l i n i n g t e s t s c o r e s and l a c k o f l e a d e r s h i p s k i l l s . 18 2110917 "The C o u r t finds that the P l a i n t i f f , Bonnie C u r r y has f a i l e d t o prove by a preponderance o f t h e evidence that the d e n i a l of the extension of her employment c o n t r a c t was based upon p e r s o n a l or political reason." The tending trial court to prove not b a s e d upon our judgment credibility because racism not was for that of credible, the determination. there was based determination found that the that the nonrenewal of Curry's a n d we trial court See F r i e d m a n , credible court's determination was implicitly evidence evidence contract cannot substitute regarding supra. racism, regarding we supporting cannot a disputed the great weight of the evidence. issue such a Accordingly, the that the nonrenewal of Curry's upon was hold trial contract that of fact that i s against See F o r t M o r g a n C i v i c Ass'n, the judgment of the t r i a l court supra. Curry was says, also against argues the great the evidence that weight indicated of the evidence that the reasons because, she cited the superintendent f o r h i s recommending t h e nonrenewal o f contract not whether trial were those valid. reasons court i m p l i c i t l y were However, valid the was evidence in conflict, found t h a t the evidence 19 by Curry's regarding and indicating the that 2110917 those our reasons were judgment credibility because f o r that was implicit superintendent were valid, was c r e d i b l e . We of the t r i a l determination. there court's valid See credible court Friedman, evidence determination that we cannot hold that regarding Therefore, supporting the cited Ass'n, c o u r t because, she says, director was the nonrenewal by the contract weight of the supra. C u r r y a r g u e s t h a t we s h o u l d who trial the great Morgan C i v i c member a determination See F o r t the board such implicit evidence. instruction supra. the reasons of fact i s against that regarding that an i s s u e of t h e t r i a l substitute f o r recommending nonrenewal o f C u r r y ' s regarding Finally, cannot to impartial of Curry's t h e judgment the evidence i s married not reverse established the curriculum- and fair-minded contract because ofh i s marital relationship with the curriculum-instruction director and, therefore, from voting However, the regarding Curry proposition member t h a t b o a r d member s h o u l d the nonrenewal has n o t c i t e d that that the marital board of Curry's any l e g a l a u t h o r i t y member 20 himself contract. supporting relationship of that and t h e c u r r i c u l u m - i n s t r u c t i o n disqualified have r e c u s e d from director voting ipso regarding board facto the 2110917 nonrenewal of Curry's stated that do and "[w]e have legal research 652 S o . 2 d 2 4 8 , 2 5 1 Dykes (Ala. 1994). member a n d h i s w i f e b o t h t e s t i f i e d e i t h e r the data final of Curry recommendation t h a t Curry's implicitly found that we c a n n o t s u b s t i t u t e regarding supra. board such Moreover, member nonrenewal was credible the t r i a l Moreover, that board superintendent's the superintendent's c o n t r a c t n o t b e r e n e w e d . The t r i a l that testimony was c r e d i b l e , determination. court fair-minded we of the evidence. Accordingly, Trucking, for the or credibility we a f f i r m an cannot hold found impartial and issue See F o r t See implicitly and contract, regarding evidence, v. Lane o u r judgment f o rt h a t o f t h e t r i a l of Curry's determination weight a court] t o that they had not discussed c o l l e c t e d by t h e wife evaluation court unequivocally i t i s n o t t h e f u n c t i o n o f [an a p p e l l a t e a party's Inc., contract, of because fact i t was Morgan and court Friedman, that that regarding the that implicit i s supported against Civic the Ass'n, t h e judgment o f t h e t r i a l by great supra. court. AFFIRMED. Thompson, Moore, P . J . , a n d Thomas a n d D o n a l d s o n , J . , concurs i n the result, 21 without J J . , concur. writing.

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