Opposition Brief — Williams v. Tucson Unified School District No. 1

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Office -Supreme Court, U.S,

FILED

JAM 10 1985

No. 84-1006 ALEXANDER L. STEVAS,

CLERK

In The

Supreme Court of the United States

October Term, 1984

“

JOHN W. WILLIAMS and WINIFRED WILLIAMS,

husband and wife,

Petitioners,

vs.

TUCSON UNIFIED SCHOOL DISTRICT NO. 1 OF

PIMA COUNTY, a political subdivision of the State

of Arizona; and TUCSON EDUCATION ASSOCIA-

TION, an Arizona corporation,

Respondents.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF ARIZONA

ray

—_—

RESPONDENT, TUCSON EDUCATION

ASSOCIATION’S, BRIEF IN OPPOSITION

ra’

Avex A. Gaynes, Esq.

Law Orrice or Atex A. GAYNES

2438 East Broadway

Tucson, Arizona 85719

(602) 792-4983

Attorney for Respondent

Tucson Education Association

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CasEs:

Campbell v. Mountain States Telephone, 120 Ariz.

426, 586 P.2d 987

Hortonvi'le Joint School District No. 1 v. Horton-

ville Education Association, 426 U.S. 482, 495,

96 S.Ct. 2308, 49 L.Ed.2d 1, 10 (1976) ..00...

Orr v. Alabama, 440 U.S. 268, 99 S.Ct. 1102, 59 L.

Ed.2d 306 (1979) oo eevee entre

Perry v. Sindermann, 408 U.S. 593, 603 (1972) .....

Zacchini v. Scripts-Howard Broadcasting Co., 433

U.S. 562, 97 S.Ct. 2489, 53 L.Ed.2d 1965 (1977)

STATEMENT OF THE CASE

John W. Williams was, at the time he filed his lawsuit

in the Pima County, Arizona Superior Court, a teacher

employed by the Tucson Unified School District No. 1 of

Pima County, Arizona. He was not a member of the

Tucson Education Association. Tucson Education Asso-

ciation was the labor organization representing employees.

Though Mr. Williams was never a member of the

Tucson Education Association, ‘‘his employment contract

bound him to the rules in the Consensus Agreement”. The

Consensus Agreement was a document entered into be-

tween the Tucson Education Association representing the -

teachers employed by the Tucson Unified School District,

and the Tucson Unified School District. This Consensus

Agreement contained procedures for the filing and con-

sideration of grievances, and additionally included many

rules and regulations, none of which are applicable in the

instant case.

This dispute centers around the grievance procedures

set forth in the ‘‘Consensus Agreement”.

The Consensus Agreement provided a_ procedural

method for processing and reviewing grievances through

various stages up the administrative ladder.

The grievance procedure further requires that any

grievance be raised within fifteen working days from the

occurrence of the alleged violation. As the Consensus

Agreement provides in paragraph 5-3:

‘‘A teacher with a complaint will first present it

orally and informally to the immediate supervisor

within fifteen (15) working days from the occurrence

of the alleged violation, or fifteen (15) working days

from the time the alleged violation is known to the

teacher or the Association.”

Mr. Williams filed nine grievances. Grievances num-

bers 1 and 2 requested that Mr. Williams’ principal be

made to apologize to Mr. Williams because of a remark

in one instance, and an unanswered letter in another in-

stance. The remark allegedly occurred in October, 1979,

and the failure to answer a letter occurred in July or

August, 1980. Neither grievance was filed within the fif-

teen (15) day time limit, but were in fact, filed more than

four months after the latest event.

Grievance number 3 centered around an issue of

compensatory time which was resolved by the District.

Grievances numbered 4 and 5 allege that on October

20, 1980, Mr. Williams was removed from his duty as a

cafeteria supervisor. This item was not made the subject

of anv grievance until January 23, 1981, some five months

and three days later. Grievances numbered 6 and 7 in-

cluded allegations that Mr. Williams was denied meaning-

ful opportunities to coach the freshman boys basketball

team, and the girls varsity basketball team. These alleged

infringements on his rights occurred on August 20, 1980,

and no grievance was filed until well after the positions

were filled and each of the seasons had begun. These

grievances were filed on January 29, 1981, months after

the alleged violations. Grievance number 8 centered

around the assignment of Mr. Williams as a ‘‘permanent

substitute”. The policy of permanent substitutes was

changed by the School District, thereby alleviating the

claim.

Gricvance number 9 was the only even arguably, time-

ly filing based on a claim that the principal of the school

“demoralized’’ Mr. Williams by yelling at a different in-

dividual.

In his deposition, Mr. Williams admitted that he knew

of the time periods but ignored them because ‘‘he didn’t

feel like it”. Deposition, page 73, ll. 21-23; pp. 100 through

101; p. 19, ll. 3-4; p. 19, ll. 8-12; p. 100, 1. 25; p. 101, Il. 1-11.

Further other portions of Mr. Williams’ testimony at his

deposition while under oath are as follows:

At page 22, lines 24-25:

‘). You’re aware in 1979 there was a grievance pro-

cedure in the Consent Agreement?”

Page 23, lines 1-3:

‘fA. Well, I just looked over the book, | was aware,

yeah.

Q. You knew there was a grievance procedure in

October, 1979?

A. Yeah. The answer is yes.”

Referring to grievanee number one, page 34, lines 18-25:

“Q. You knew that the conversation of October 2,

1979, was more than fifteen days—working days—

before the time you started the grievance procedure

in 1981. Is that true?

A. Oh, yes, yes, uh-huh.

Q. So you knew that the grievance was not being

filed within the fifteen working days?

A. Yes.”

Referring to grievance number two, page 48:

“Q. The question is, do you agree that you filed the

grievance number two outside the fifteen days period?

A. Yeah, yes, uh-huh, yes.”

Referring to gricvance number three, page 55, lines 7-12:

‘Q. And at the time on January 23, 1981, when you

talked to Mr. Carrillo about the comp time practice

as explained by Mr. Ingersoll on August 20, 1981,

you knew that more than fifteen days had elapsed

since Mr. Ingersoll told you that, is that corrcct?

A. Yeah, uh-huh.”

Referring to the grievance regarding cafeteria supervisory

duty at page 63, lines 19-24:

‘“Q. But you didn’t start the grievance procedure

until January 23, 1981, is that correct?

A. That’s correct.

Q. And that’s greater than fifteen days after August

20, is that correct?

A. That’s correct.”

Again referring to the cafeteria duty at page 73, lines 21-

23:

“Q. Why didn’t you file a grievance on the cafeteria

duty?

A. Well, I didn’t feel like it.”

Referring to grievance number five, page 74, lines 1-9:

““Q. Excuse me, why didn’t you feel like filing a griev-

ance?

A. Because when he took me out of my counscling

job, made me a substitute teacher, when I had to

teach all those other classes, I had to teach English,

Social Studies, Math, sometimes P.E., Art, lead the

band, and all that stuff, that’s when I really got mad.

That’s why. So I just unloaded all of them at the

same time. That’s why.”

Referring to the grievance regarding the freshman boy’s

basketball tcam, page 92, lines 22-24:

“Q. You knew about the fifteen day time limit on

August 20, 1980?

A. Yeah.”

Page 19, lines 3-12:

“Q. Why didn’t you file a grievance then?

I didn’t feel like it at the time.

Why?

Just because I didn’t, that’s why.

And no other reason?

That’s my reason.

Just because?

ie i fe ee

That’s my reason.”

Referring to comp time/demoralization grievance on Au-

gust 1, 1979, and cafeteria grievance, page 100, line 25,

page 101, lines 1-11:

‘“‘Q. Thank you. On October 15, you knew that Mr.

Carrillo demoralized you on October 1, 1979. You

knew on that date that he had not answered your

letter by August 20, 1980. You know that comp time

practices had been reported to you by Mr. Ingersoll

were different than what you thought they were. You

knew that the cafeteria duty was removed from you.

Why didn’t you file any grievances at that point in

time?

A. I didn’t feel like it.

Q. But you knew you had a fift.en day time limit

from that time—

A. Yes.

(). -—an event occurred to the time you {filed your

grievance, is that correct?”

Presented to the Trial Court were affidavits of Ralph

Baker, Elaine Carct, Joyce Drake, Bill Goettsech, Arthur

Kindelar, Judith Krelleff, William Lamson, Geraldine

Maeclkaben, Marian Pickett, Linda Pair-Roberts, Randall

Smith, Judy Stewart, and John Irvin which, without con-

tradiction by Mr. Williams or anyone on his behalf, showed

that neither Mr. Williams’ membership or non-membership

status in the Tucson Education Association played any

part of the discussions of any participants in the decisions

concerning Mr. Williams’ grievances. One of the reasons

for summary judgment against Mr. Williams was that it

was unequivocally shown that Mr. Williams was treated

in the same fashion as any other teacher would have been

treated whether or not the individual was or was not a

member of the Tueson Education Association,

ARGUMENT

It is difficult to respond to the allegations and posi-

tions taken by Mr. Williams, because the positions have

been taken in a seatter gun type approach, and none of

the allegations contain any degree of specificity. There

is little focus to any of the allegations.

The Petition raises no substantia! Federal legal

grounds for a decision by this Court. In addition, a

brief reading of Petitioner’s own pleadings show that

ample and adequate independent State grounds for relief

were present, and preclude certiorari. Orr v. Alabama,

440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Zacchina

v. Scripts-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct.

2489, 538 L.Ed.2d 1965 (1977).

‘The risk of an erroneous depravation” and

‘‘the degree of potential depravation” do not raise this

ease even to the level rejected in Hortonville Joint School

District No. 1 v. Hortonville Education Association, 426

U.S. 482, 495, 96 S.Ct. 2308, 49 L.Ed.2d 1, 10 (1976).

Petitioner’s pleadings in this Court blithely skip over

the issue of timeliness by arguing that the grievances were

‘continuing in nature and therefore timely”. Petition for

Writ of Certiorari, at page 10. However, the Arizona

Court of Appeals found to the contrary. The Arizona

Court of Appeals in its Opinion (found on page A-12 of

Appendix A of the Petition for Writ of Certiorari) in-

cludes the following language :

“The Appellant’s contract containing the griev-

ance procedures which he utilized required him to

observe certain specified time limits for the filing of

a grievance. Thus, at level one he was obliged to file

within fifteen working days. Except for grievances

8 and 9, none were filed within anywhere close to that

time.”

Grievance 8, as mentioned in the Statement of Facts, is

moot, grievance 9 requested that the Tueson Unified School

District take action against the principal who made a re-

mark to another individual.

The Court found the timeliness issue to be, in and of

itself, a sufficient reason for denying the grievances.

Tt is also conceded and has been coneeded by Mr.

Williams and his counsel that Mr. Williams was treated

respectfully, and his positions reviewed by the Tucson

Education Association fairly and completely. In fact, Mr.

Williams does noi even question the fact that the Execu-

tive Director of the Tucson Education Association present-

ed Mr. Williams’ side of the case to the Executive Board

of the Tucson Education Association in a fair and eq-

uitable manner. The affidavits referred to previously

showed that the decision on whether to proceed with Mr.

Williams’ grievances was based on the merits of those

grievances, and on no other factors.

Not only that, the Tucson Education Association pro-

vided Mr. Williams and his attorney with the chance to

speak to the issues raised in his grievances. Parenthet-

ically, it should be noted that the first time that allegations

concerning ‘‘continuing grievances” were raised occurred

in the Superior Court, no such issue or arguments being

raised administratively.

In fact, throughout the record of this case, there is

not one way in which Mr. Williams can point to the Tucson

Education Association as breaching any perceived duties

of fairness to him. His prime function when boiled down

to its essential seems to be, ‘‘they did not let me go to

arbitration, therefore, they have breached all manner of

duties to me.” The Trial Court, the Arizona Court of

Appeals, and the Arizona Supreme Court properly found

that there were no issues of fact remaining, and that ex-

tensive discovery showed no action on behalf of the Tuesen

Education Association which even could be classified as

‘‘negative”,

Throughout the proceedings, there is not one per-

ceived event that can be shown to be arbitrary, discrim-

inatory, or in bad faith. The Arizona Courts have reject-

ed Mr. Williams’ attempts to have his c!aims determined

to be endless, continuing complaints and therefore subject

to review ad infinitum. In any event, this decision was a

matter of State law, and raises no substantial Federal

question.

In Arizona, prior to raising an issue in the Courts,

an individual must exhaust his administrative remedies.

The Arizona Courts have so held in Campbell v. Mountain

States Te'ephone, 120 Ariz. 426, 586 P.2d 987. Mr. Wil-

liams simply failed to properly raise the issues adminis-

tratively in proper fashion, so that his purported consti-

tutional claims, and other assertions simply are not ripe

for adjudication in the highest Court in the land.

It is uncontroverted that Mr. Williams ignored the

grievance procedures, and that any failure to present

anything was his own fault. He now asks the highest

Court in our land to review adverse activity which was

caused because Mr. Williams ‘‘didn’t feel like” pressing

grievances. It is axiomatic that litigants must first raise

Federal issues in State Courts in such a format as to

ripen the issues sufficient for fair adjudication.

Perhaps, the Arizona Court of Appeals stated it best

when they noted as follows:

“Thus, not only do we believe summary disposi-

tion in the Trial Court was proper, we find this appeal

to be frivolous. From our examination of the record,

it appears that the appellants are attempting to use

the Courts to somehow redress alleged wrongs for

which they have no legal or equitable remedy. For

example, Grievance No. 1 sought to order an apology

from the principal. Although the prayer of his com-

plaint does not seek such an apology, it does pray

for an order requiring TUSD ‘to insure that the

conduct of its agents and employees toward him is pro-

fessional and courteous.’ Our courts do not exist for

that kind of purpose. See Annotation in 47 A.L.R. 2d

319 discussing the maxim ‘de minimus non curat lex,’

the law does not concern itself with trifles. The same

can be said of any relief claimed in the complaint

because of Grievance No. 2, the failure to answer his

letter; Grievance No. 8, his assignment as a ‘perma-

nent substitute’; and Grievance No. 9.”

As to the issues of timeliness, the Arizona Court of

Appeals noted as follows:

“It is inconceivable that the appellant can con-

tend that this court should order TUSD to now pay

him for a part-time supervisory position from August

1980, give him the position of freshman boys’ basket-

ball Coach with pay from August 1980, and also make

him head girls’ varsity basketball coach at the same

time. These positions were filled before his grievances

were filed.”

Mere subjective expectancies without substance do not

reach the level of due process protection. Perry v. Sinder-

mann, 408 U.S. 593, 603 (1972).

Respectfully submitted,