Opposition Brief — Moore v. Board of Education of the Johnson City Schools

FILED

No. 98-154 S59 { 1 yoog

O'; Ce OF THE CLERK

In The SUPREME GQURI, U.S.

Supreme Court of the United States

aa

———_—

October Term, 1997

PENNY MOORE,

Petitioner,

VS.

JOHNSON CITY BOARD OF EDUCATION, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

K. ERICKSON HERRIN

Counsel of Record

EARL. R. BOOZE

HERRIN, BOOZE & RAMBO

Attorneys for Respondents

515 East Unaka Avenue

. P.O. Box 629

Johnson City, TN 37605

(423) 929-7113

148476 @] Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 * (800) 359-6859

aie tag he it

TABLE OF CONTENTS

Kaee OF Ce AUS Sooo woke keto hae

ees OE Ge C8 ei ei ce eS

A.

The Petition misrepresents the nature of Moore’s

“approved” leave of absence. ..............

The Petition misrepresents the magnitude of the

automobile accident in which the Petitioner was

involved and her conduct while on “approved”

WS Bk stoi ode BLAM ROR ERE RRA ER ees

The Petition misrepresents the submitted

testimony directed to Moore’s capacity to function

as an elementary school teacher. ............

The Petition misrepresents the nature of the

request of Superintendent Simmons for

information pertaining to Moore’s medical and

DUVCHRMr es COMI ec is cece cee cs

The Petition inaccurately states that it was the

District Court’s opinion that Moore was

discriminated against by being asked to produce

more evidence of her competence to return to

work than would have been required of a teacher

with a non-psychiatric medical problem. .....

Reasons for Denying the Writ ....................

10

11

12

li

Table of Cited Authorities

I. The Americans With Disabilities Act Question

Presented In The Petition For Writ Of Certiorari

Is Not Present In The Record In This Case. ...

A. Neither court below held that post-

termination evidence of Moore’s continuing

disability was dispositive or necessary to the

finding that Moore had failed to establish she

was disabled but otherwise qualified to teach

WE NE 5 es cca no

II. Petitioner’s Pretermination Hearing, Conducted

In Accord With Tennessee’s “Education

Improvement Act”, Did Not Offend The

Procedural Due Process Decisions Of This

NS esis ies Ie Le

COMMIINIIN 5 aes cco ncaausaan oe cr oe ae

TABLE OF CITED AUTHORITIES

Cases Cited:

Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130

CTU COE, FIG) scares cs pea ors ee

Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701,

33 L. Ed. 2d 548 te es ag OS ee ea

Brock vy. Roadway Exp., Inc., 481 U.S. 252, 107 S. Ct.

1740, 95 L. Ed. 2d 239 RaSOT? ech le

Page

12

12

14

17

10

14

14

iii

Table of Cited Authorities

Page

Brown v. Houston Independent School Dist., 763 F. Supp.

Pee Sr BIS BODY sioaids Soha Vs ve bacein ie. 1]

Cafeteria Restaurant Workers v. McElroy, 367 U.S. 886,

81S. Ct. 1743, 6 L. Ed. 2d 1230 (1961) .......... 16

Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 545-546,

105 S. Ct. 1487, 1495, 84 L. Ed. 2d 494 aL) Bae 15

Cooper v. Williamson Co. Bd. of Educ., 803 S.W. 2d 200

(Tenn. 1990), cert. denied, 59 U.S. 3769, 111 S. Ct.

euis, 149 b. Be. 26 100 (1991) . .. 2... ccs... 16

FDIC v. Mallen, 486, U.S. 230, 108 S. Ct. 1780, 100 L.

I ee a a 14

Gilbert v. Homar, 520 U.S. __, 117 S. Ct. 1807, 138 L.

Eo oie 7% banc bite oes. 15

Grenier v. Cyanmid Plastics, Inc., 70 F.3d 667 (1st Cir.

PM Dri ne ob ha is sco ao Chk Se cae ck 10

Hedberg v. Indiana Bell Telephone Co., 47 F.3d 200 (7th

Ge SO es esis tbe oie tk aeuteeh ss: 10

Howard v. Bogart, 575 S.W. 2d 281 (Tenn. 1979) ... 16

Hunter v. Underwood, 471 U.S. 222, 105 S. Ct. 1916

NES ORS RES Sa SS od eS ne ee 19

Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 (6th

MOE ibe eee Wil OES fehl co eke, 11

iv

Table of Cited Authorities

Page

Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.

Ct. 1148, 71 L. Bd..24 265 (1962)... 2.3... 15, 16

Malone v. Shelby Co. Bd. of Educ., 773 S.W. 2d 256

(Fem. Se Ah, TO i ee 16

Moore v. Johnson City Bd. of Educ., 134 F.3d 781 (6th

ARs RIO as eG eA ede ee eke 12

Morrisey v. Brewer, 408 U.S. 471, 92S. Ct. 2593, 33 L.

Gs MEP RADION 6 6055565 Fase 16

Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (i972) :.. 18

Scheideman v. West Des Moines Community School Dist.,

Orn Fae 206 (Oth Cor. 1999) 2. os os. 11

Strong v. Union Dale Union Free School Dist., 902 F.2d

He CRO TP aS ree eee. 11

Sutton v. Cleveland Bd. of Educ., 958 F.2d 1139 (6th Cir.

acct Re EO ROME ape EERE 16, 17

Williams v. Widnall, 79 F.3d 1003 (10th Cir. 1996) .. 7

Statutes Cited:

Sh US Re@ CEMA) 6 sk 6h eos 12

Table of Cited Authorities

Page

Tenn. Code Ann. § 49-5-101, ef seg. ............... 16

Tenn. Code Ann. § 49-5-409 (Supp. 1994) .......... 16

Rules Cited:

Federal Rule of Civil Procedure 24(c) ............. 15

United States Supreme Court Rule 29(c) ........... 15

Other Authority Cited:

SOCERE 6 tee ee. 11

ee aoe _—3—nn CO EO EOE ee

l

STATEMENT OF THE CASE

This case is fact intensive. In the interest of brevity, the

Respondents submit the following timeline of significant

November 19, 1993 — Petitioner Moore deceptively

acquires a few days of “approved” sick leave claiming

a need for emergency “blood work.” [App. Vol. III, p.

641]. Moore’s treating psychiatrist later verified

“blood work” was not a concern. [App. Voi. V, pp.

1043-1044}.

November 23, 1993 — Moore is involved in a drunken,

mid- school day multiple car accident that attracts both

newspaper and television coverage. [App. Vol. III, pp.

451-454, 1036-1038]. Moore is “uncommunicative. . .

verbally abusive, uncooperative [and then] passes out,

blacked out.” [App. Vol. III, pp. 448-450]. From the

emergency room she is transported to Woodridge

Psychiatric Hospital. [App. Vol. V, pp. 1175-1176].

November 23, 1993 to January 5, 1994 — Other than

to endorse her paid suspension payroll checks, Moore

is silent to the written request of Superintendent

Simmons to “[P]lease provide to us the report from

Woodridge indicating your ability to function in your

teaching position.” [App. p. 675, Pl.’s Ex. 4].

January 5, 1994 — Moore is moved to a “suspension

without pay” status. [App. p. 676, Pl.’s Ex. 5] Her

1. All references are to the Joint Appendix “[App. __]”, and, if an

exhibit, to the Joint Appendix page number where the exhibit begins

followed by either “[Pl.’s Ex.__]” or “[Def.’s Ex.__]”.

2

Tennessee Education Association [T.E.A.] attorney

promptly demands that she be returned to the

classroom, promising a letter from her treating

psychiatrist, Dr. Janet Lewis, addressing concerns

about Moore’s ability to assume responsibility for a

classroom of seven (7) year old second grade students.

[App. Vol. IV, p. 677, Pl.’s Ex. 68, App. Vol. III,

p. 442].

January 5, 1994 to January 25, 1994 — Petitioner

Moore is non-compliant with Alcoholics Anonymous,

Narcotics Anonymous and group therapy rehabilitation

efforts — showing up on occasion under the influence,

acknowledging continued marijuana use and

“demonstrating inadequate commitment to remain

sober.” [App. Vol. V, pp. 1057-1061, 1068-1069, 1078,

Def. Ex. 54, App. Vol. V, pp. 1175-1178].

January 26, 1994 — Petitioner Moore is involuntarily

committed to Woodridge Psychiatric Hospital by Dr.

Lewis due to suicidal projections; detoxification from

continued drug abuse is, again, attempted. [App. Vol.

V, p. 1177]. Because she was “verbally aggressive and

threatening and attempting to hit the staff’ Moore was

placed in a four point restraint. [App. Vol. V, pp. 1066-

67]. Moore’s treating psychiatrist writes a T.E.A.

representative indicating she cannot write the

requested letter to the school system “... because

positive responses to the questions ... posed would

be misrepresenting Penny’s clinical situation. I am

unlikely to be useful) to you in Penny’s appeal of her

suspension [fron the school system].” [App. Vol. V,

pp. 1068-1072].

February 7, 1994 — Petitioner Moore reports to group

therapy “under the influence of some chemical” [App.

Vol. V, p. 1196; App. Vol. V, pp. 1062, 1077].

PaO | ARAN En ow pe NCEE ERB AON asin hte

sath aha Ba

3

February 11, 1994 — Moore “got drunk after her court

custody hearing.” [App. Vol. V, p. 1205]. During this

hearing Moore’s treating psychiatrist testified before

the juvenile court that Moore was incapable of

providing care nor capable of custody of her seven (7)

year old second grade daughter or her youngest

daughter, “a babe in arms.” [App. Vol. V, pp. 1083-

84; App. Vol. II, p. 427-428].

March 6, 1994 — Moore appeared in State court on

her D.U.I. charge stemming from the November 23,

1993 accident. She was intoxicated and the case was

postponed. [App. Vol. V, p. 1063; Def.’s Ex. p. 1197].

March 10, 1994 — Moore admitted to her therapist

she was having “racing thoughts” and was coping by

drinking and “smoking dope”. [App. Vol. V, pp. 1197-

1198].

April 14, 1994 — Moore was again involuntarily

committed to Woodridge Psychiatric Hospital for

detoxification efforts following her inability to remain

drug free. [App. Vol. V, pp. 1079]. This admission

occurred when Moore “attempted to discontinue drug

use on her own and was feeling quite sick” and

indicated she intended to commit suicide by overdosing

on drugs. [App. Vol. V, p. 1078]. Moore became

combative in the hospital lobby [App. Vol. V, p. 1079]

was a danger to herself and others, [App. Vol. V,

p. 1207] was physically placed in a special five-point

restraint bed simply to control hér violent behavior,

[App. Vol. V, p. 1080] and had marks on her body

consistent with IV drug use. [App. Vol. V, pp. 1081,

1180, 1208].

4

April 26, 1994 — Moore appeared for her hearing with

Dr. Simmons and testified she was not using illegal

substances [App. Vol. I, p. 195, R. 69, pp. 11-12], “did

not know why she was enrolled by Dr. Lewis in

Narcotics Anonymous” [App. Vol. IV, p. 925, Pl.’s

Ex. 37] and when asked if she had requested any type

of job “modification” or “adjustment”, responded,

“No, because I didn’t need it.” [App. Vol. IV, p. 913,

Pl.’s Exhibit 37]. Moore consistently maintained that

her hospitalization and psychiatric conditions were

simply “not pertinent to my ability to teach.” [App.

Vol. IV, p. 919, Pl.’s Ex. 37]. With consistency, Moore

denied under oath during her deposition that she had

used illegal drugs except “experimentation as a kid in

school” and “just for a short time recently.” [App. Vol.

III, pp. 438-443]. [Moore elected not to take the

witness stand at trial to refute the overwhelming

evidence of her illicit drug abuse].

May 13, 1994 — Superintendent Simmons informs

Moore that her termination will occur but provides a

final opportunity for reconsideration if she will provide

“information with which [Moore’s] ability to resume

her teaching duties can be considered.” [App. Vol. IV,

p. 687, Pi.’s Ex. 14]. No information is provided and

“at some point her termination became final” [App.

Vol. I, p. 195, R. 69, p. 8].

May 25, 1994 — Moore is arrested for public

intoxication and disorderly conduct when her group

therapist found it necessary to call the police to

Woodridge Hospital [App. Vol. II, pp. 308-309]. The

arresting officer described Moore as unruly, agitated

and combative [App. Vol. II, pp. 310-311, Def.’s Ex.

45, p. 1000].

5

* May 25, 1994 to February, 1996 — Moore’s medical

and psychiatric records reflect dismal failures to

remain drug free until, in February 1995, her first

sincere efforts began to remain drug free. [App. Vol.

VI, pp. 1242, 1265, 1337, Def.’s Ex. 52, 55, 57]. At

the time of trial (February, 1996) Moore had not

regained full, unsupervised custody of her children,

but hope was expressed that she would soon be capable.

[App. Vol. II, pp. 425-505].

A. The Petition misrepresents the nature of Moore’s

“approved” leave of absence.

In furtherance of the efforts to minimize the school day

conduct of Moore, the Petition characterizes Moore as being

on “approved medical leave” that had been “obtained [with]

permission from her principal.” [Petition, pp. 3-4]. Omitted 1s

the undisputed evidence that the “approved” leave was

deceptively procured. The record reflects that on November

19, 1993, a Friday, Moore informed her principal she needed,

as an emergency, to go to the hospital to have “blood work”

done. [App. Vol. III, p. 641]. Approval was understandably

given since the principal was led to believe Ms. Moore was

checking into the hospital “as a matter of life or death, that

very afternoon.” [App. Vol. III, pp. 641-642].

Dr. Janet Lewis, Moore’s treating psychiatrist, testified

there was no concern about “blood work” or a need to check

into the hospital for that purpose. [App. Vol. V, pp. 1043-1044].

In actuality, Moore was being professionally encouraged to

check into a psychiatric institution to de-toxify from an illicit

drug addiction which included intravenous morphine use,

cocaine, xanax, marijuana, opium, Demerol, methadone and

alcohol. [App. Vol. VI, pp. 1337-1338; App. Vol. III, pp. 465-

467; App. Vol. V, pp. 1025, 1028, 1203]. In short, the record is

6

clear that the leave time obtained by Moore was deceptively

acquired — this being the first in a long series of deceptions,

half-truths and false statements made by Moore and her

representatives.

B. The Petition misrepresents the magnitude of the

automobile accident in which the Petitioner was involved

and her conduct while on “approved” leave.

Understandably without embellishment, the Petitioner

admits she caused an early afternoon school day automobile

accident, but seeks to discount the event by claiming “[t]here

were no injuries in the accident, and the damage to the vehicles

was minor.” [Petition, p. 3].

Driving double drunk [.20 blood alcohol content] at 1:45

p.m., [App. Vol. V, pp. 1044-1045] Moore caused a rather

spectacular multi-car accident at a busy intersection within the

corporate limits of Johnson City. [App. Vol. III, pp. 451-452].

As the investigating police officer testified, Moore “... was

uncommunicative . . . verbally abusive, uncooperative and not

responding to questions . . . [she then] passed out, blackened

out.” [App. Vol. III, p. 450]. The accident was caused by

Petitioner Moore

... passing through an intersection [turning] left

over a concrete median into east-bound . . . traffic,

made a U-turn, went off the roadway, crossed a

sidewalk, struck and knocked down a metal street

light, re-entered the roadway eastbound, re-entered

the intersection, missed or did not turn right in the

southbound lanes but cut across a concrete median

in a northbound lane... struck a stopped pick-up

truck . . . knocked it to the side and then struck head

on a nine-passenger van.

[App. Vol. III, p. 451, Def.’s Ex. 43].

a

7

The attempt by the Petitioner to minimize this school-day

conduct apparently stems from a recognition that simply

because Moore’s conduct was due to her disability, the law

does not excuse or require her employer to ignore such conduct.

| See, e.g., Williams v. Widnall, 79 F.3d 1003 (10th Cir. 1996)

(Alcoholics and drug addicts not protected from consequences

of misconduct).

C. The Petition misrepresents the submitted testimony

directed to Moore’s capacity to function as an elementary

school teacher.

In furtherance of the assertions that Moore was disabled,

but otherwise qualified to perform her duties as an elementary

school teacher’, the Petitioner represents that “[t]here is no

evidence from which it could be concluded that Moore could

not have performed her job duties with . . . success when she

was not hospitalized” and “[she] was capable of functioning

effectively as a teacher upon her release from the hospital.”

[Petition, pp. 4, 5, 8]. Disregarding for the moment that

Petitioner’s statements improperly seek to reallocate the burden

of proof from establishing Moore was qualified, the record is

nevertheless replete with evidence that Moore was not qualified

to teach.

Even assuming arguendo it is true that a detoxified Moore

could teach immediately following her hospitalizations, the

critical question remains: “For how long before returning to

substance abuse?” Moore’s psychiatric records, at times, reflect

only hours, not days. [App. Vol. V, pp. 1051-1053, 1056, 1085).

That Moore had not overcome her drug and alcohol addictions

2. See Elementary School Teacher Job Description, App. Vol. IV,

pp. 691-692; presentation skills, instructs, demonstrates, prepares,

maintains order, counsels, discusses, communicates, observes,

represents, reports, etc.

8

or her psychiatric difficulties at the time of discharge is

undisputed. [App. Vol. V, pp. 1069-1091; 1093-1094; App. Vol.

VI, pp. 1242, 1265, 1337]. Moreover, Petitioner’s attempts to

claim an ability to teach during the gaps between

hospitalizations for detoxification is disingenuous. Is it not

obvious what Moore was doing during the hospital interims to

bring about a need for professionally supervised drug

withdrawal? The reason Moore was hospitalized in the first

place, both voluntarily and involuntarily, was to assess and treat

her psychiatric symptoms “while she was sober” [App. Vol. V,

p. 1037]. While Moore’s medical and psychiatric records are

filled with her tragic failures to remain drug free, this tragedy

would have only been compounded had the lives of a classroom

of impressionable second graders also been implicated and

impacted. [App. Vol. V, pp. 1084-1087]. As Moore’s treating

psychiatrist put it “teach while under the influence of morphine?

It’s best not to. It can impair judgment.” [App. Vol. V, pp.

1082-1083].

Prior to and long after her termination from employment,

Moore carried the diagnosis of “dissociative disorder” which

is “a disruption in normal functioning of consciousness and

memory and identity ... ”. [App. Vol. V, p. 1017]. Moore

reported to her psychiatrist she was disassociating, that this

had occurred at school and people were noticing. [App. Vol.

V, p. 1019]. Moore also had “alternate personality states” [App.

Vol. V, p. 1018] resulting in “a pattern of instability in [her]

mood and in [her] relationships and . . . sense of identity.” [App.

Vol. V, pp. 1022-1023]. Moore’s alter personalities included

two (2) that were children and one (1) violent alter which was

referred to as “Kate” when being discussed by Moore and her

therapist. [App., Vol. V, p. 1034, 1035]. Moore also had a mood

disorder “characterized predominantly by . . . depressed mood,

sleep and appetite disturbances and suicidal episodes.” [App.

Vol. V, pp. 1022, 1034]. And perhaps of most importance to

9

this case, Moore had a diagnosis of “mixed substance dependence”

resulting in a “maladaptive pattern of use of alcohol and illicit

drugs and experienced tolerance and withdrawal symptoms and

craving.” [App. Vol. V, p. 1023].

Moore’s history and level of drug use remained sketchy even

to the professionals attempting to treat her [App. Vol. V, pp. 1028-

1029] until she finally fully disclosed it during an institutional

commitment at D.R.I. Institute: intravenous morphine, two or three

times per day, for four years; cocaine, two or three times per month,

for one year; Opium, four or five times during a six month period;

Demerol, two times during the past year; xanax, up to thirty per

day, for one year, Methadone, two times per week, for two years,

alcohol, a fifth daily, for fourtcen years. [App. Vol. V, pp. 1025,

1028, 1203]. The D.R.I. confinement was from August 25, 1994

through September 12, 1994 so it is evident that Moore was

cgnsumed with a drug and alcohol addiction and the concomitant

behavioral characteristics throughout her suspension from the

Johnson City school system. [App. Vol. V, pp. 1025, 1027]. That

Moore was “shooting” morphine during the time of her suspension

and termination is also confirmed by nursing notes reflecting red

marks on her arms and legs consistent with IV drug use. [App.

Vol. V, p. 1030].

Petitioner’s contention that there was no evidence of Moore’s

inability to teach is not supported by the record below. Besides,

what is actually missing is any credible evidence that Moore was

qualified to teach. That the Petitioner before this court was either

unable or unwilling to even take the witness stand at her own trial

should serve as the initial indicator to this Court why the Petitioner

failed to carry her burden of proof in this case. [App. Vol. III, p.

437]. Despite Petitioner’s contention that Moore’s drug abuse is

irrelevant because her employer was unaware of the extent and

severity of the problem, the Petitioner must still establish that

Moore was otherwise qualified to perform the essential functions

of a classroom teacher.

10

D. The Petition misrepresents the nature of the request of

Superintendent Simmons for information pertaining to

Moore’s medical and psychiatric condition.

The Petition represents that Superintendent Simmons

sought a release for “all of [Moore’s] medical and psychiatric

records.” [Petition p. 5]. The word “all” does not appear in any

of the three (3) communications from Superintendent Simmons

to Moore. [App. Vol. IV, p. 675; p. 676; pp. 686-687]. That

this issue is lawyer driven is highlighted by the fact that Moore,

during her pretermination hearing, testified she was not under

the impression that she was required to submit any medical

records, only that it had been suggested. [App. Vol. IV, pp.

920-921]. This was why, as the trial court noted, Superintendent

Simmons provided a final opportunity for Moore to provide

“information ... with which [your] ability to resume [your]

teaching duties can be considered.” [App. Vol. IV, pp. 686-

687; R. 69, p. 8].

Petitioner’s focus on the nature and extent of the school

system’s request for a professional opinion regarding Moore’s

ability to resume teaching is a diversionary tactic to avoid the

more important issue of Moore’s non-disclosure of her

disability. Both common sense and emerging law indicate that

an employee cannot leave an employer to guess at what

employment decisions should be made and afterwards complain

of discrimination and lack of accommodation for a disability

that remained secret until after the adverse employment action

was taken. Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d

1130 (7th Cir. 1996); Grenier v. Cyanmid Plastics, Inc., 70

F.3d 667 (1st Cir. 1995); Hedberg v. Indiana Bell Telephone

Co., 47 F.3d 200 (7th Cir. 1995). The lower courts generally

accept the published A.D.A. regulations for the proposition that

an employee must interact and has a responsibility to “identify

the precise limitations resulting from the disability and potential

11

reasonable accommodations that could overcome those

limitations.” 29 C.F.R. § 1630.2 (30)(3) 1995; Kocsis v. Multi-

Care Management, Inc., 97 F.3d 876 (6th Cir. 1996).

A direct review of the three (3) letters sent by

Superintendent Simmons to Moore is encouraged as it is evident

from those letters that the school system sought only some

professional evaluation of Moore’s condition. That the request

was appropriate is reflected in the following opinions:

Scheideman v. West Des Moines Community School Dist., 898

F.2d 286 (8th Cir. 1993); Strong v. Union Dale Union Free

School Dist., 902 F.2d 208 (2nd Cir. 1990); Brown v. Houston

Independent School Dist., 763 F. Supp. 905 (S.D. Tex. 1991).

E. The Petition inaccurately states that it was the District

Court’s opinion that Moore was discriminated against by

being asked to produce more evidence of her competence

to return to work than would have been required of a teacher

with a non-psychiatric medical problem.

While it is true the trial judge found that Moore was asked

to provide information not generally sought from employees

seeking to return to work following a physical injury, it is

certainly stretching the trial court opinion beyond the breaking

point to state, as the Petitioner has, that the District Court found

Moore was “discriminated against.” [Petition p. 6; App. Vol. I,

p. 195, R. 69 pp. 10-11].

As Judge Thomas Hull pointed out, “[Superintendent]

Simmons’ initial letter of November 23, 1993 [and presumably

as repeated in the ‘final opportunity’ correspondence of May

13, 1994] appears to have been appropriate to the circumstances

and falls under the ‘necessity exception’ to the ADA [i.e., 42

U.S.C. § 12112(d) (4) (A)].” [App. Vol. I, p. 195, R. 69, pp. 9-

11]. Petitioner’s conversion of dicta to a holding of the trial

12

court without acknowledging the dicta that neutralizes any such

holding is little more than an attempt to bootstrap this case to a

narrower issue. The trial court simply disposed of Petitioner’s

ADA claim at its earliest analytical stage, i.e., “[bJecause . . .

Moore has not proven that she was otherwise qualified, ...

[t}his part of her claim will be dismissed.” [App. Vol. I, p. 195,

R. 69, p. 12]. The Sixth Circuit did not find Petitioner’s

argument of “discrimination” persuasive either. Moore v.

Johnson City Bd. of Educ., 134 F.3d 781 (6th Cir. 1998). And

clearly the circumstance of Moore’s multiple hospitalizations

and “hint of a drug abuse problem” justified the request for a

professional opinion from her treating psychiatrist. 42 U.S.C.

§ 12112(d)(4)(A). [App. Vol. I, p. 195, R. 69, pp. 11-12].

REASONS FOR DENYING THE WRIT

I.

THE AMERICANS WITH DISABILITIES ACT

QUESTION PRESENTED IN THE PETITION FOR

WRIT OF CERTIORARI IS NOT PRESENT IN THE

RECORD IN THIS CASE.

A. Neither court below held that post-termination evidence

of Moore’s continuing disability was dispositive or necessary

to the finding that Moore had failed to establish she was

disabled but otherwise qualified to teach second grade.

Implicit in Section I, pp. 11-13 of Petitioner’s brief is a

recognition that there is evidence in the record regarding

Moore’s substance abuse and psychiatric disorders that pre-

date her discharge. [Petition pp. 11, 12]. Equally evident are

Petitioner’s efforts to cleanse the record to present the desired

issue that the lower courts only considered evidence of Moore’s

disability after termination instead of at the time of the adverse

13

employment action. Instead of there being “no evidence” of

pre-termination disability the Petitioner actually urges that the

evidence is of “no relevance” [Petition, p. 12] or “isolated [and

therefore insufficient]” [Petition, p. 11]. This argument is

nothing more than Moore’s disagreement with the weight

attributed to the evidence by the courts below. The Petitioner’s

argument is also a tacit admission that the record in this case is

fact intensive and therefore does not clearly present the issue

she now submits: i.e., “at what point in time is an employee’s

disability to be determined?”

While the issue posited by the Petitioner is an interesting

one, the facts of this case simply do not contain it. Contrary to

Petitioner’s speculation that the District and Circuit courts

evaluated Moore’s ability to function as a teacher with

information pertinent only to her life after her termination does

not withstand even minimal scrutiny. The record is replete with

Moore’s psychiatric and involuntary hospital admission records

covering the span of time from long before her initial suspension

with pay to long after the date of her hearing before Dr.

Simmons. [App. Vol. VI, pp. 1245-1356; Vol. V, pp. 1011-

1094, 1172-1230]. That the record contains post-termination

evidence of disability serves to establish only the severity of

Moore’s dysfunctional existence.

This case does not contain the issue of post-termination

disability evidence the Petitioner wishes it did and, for that

reason, the Petition should be declined.

14

Il.

PETITIONER’S PRETERMINATION HEARING,

CONDUCTED IN ACCORD WITH TENNESSEE’S

“EDUCATION IMPROVEMENT ACT”, DID NOT

OFFEND THE PROCEDURAL DUE PROCESS

DECISIONS OF THIS COURT.

This Court has consistently and repeatedly held that

property interests are not created by the Constitution, but rather

are created and defined by “existing rules or understandings

that stem from an independent source such as state law.” Board

of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33

L. Ed. 2d 548 (1972). There is no question that Tennessee’s

“Education Improvement Act” and Moore’s single year 1993/

94 employment contract created her entitlements. [App. Vol.

I, p. 195, R. 69, p. 13]. Since Moore was not a tenured teacher,

the extent of Moore’s property right was the value of the balance

of her 1993/94 teaching contract — approximately five (5)

month’s salary*. It is also undisputed that Tennessee’s

“Education Improvement Act” defined the procedure by which

Moore’s property right could be extinguished. Tenn. Code Ann.

§ 49-2-301(F)(33). And there has never been a contention that

the “Education Improvement Act” was not followed. Because

of this, the Respondents have long contended that Moore is

3. In 1991 the Tennessee Legislature passed a comprehensive series

of statutes known as the “Education Improvement Act.” The provision

relevant to this case is Tenn. Code Ann. § 49-2-301(F)(33).

4. It was stipulated by the Defendants at trial that Moore’s stake in

the due process question was $15,292.50. On reflection, it is substantially

lower since Moore’s suspension without pay was appropriate. FDIC v.

Mallen, 486, U.S. 230, 240-241, 108 S. Ct. 1780, 1787, 1788, 100 L.

Ed. 2d 265 (1988), Brock v. Roadway Exp., Inc., 481 U.S. 252, 107 S.

Ct. 1740, 95 L. Ed. 2d 239 (1987).

edt Feat! ince ii alot atl, Oe iit A, hate. edad

15

silently attacking the constitutionality of a state statute without

compliance with Rule 24(c) of the Fed. R. Civ. P. or, now,

Rule 29(c) of this Court.

Petitioner’s premise that a “simple right-of-reply hearing”

[Petition, p. 14] was provided Moore by the Johnson City School

System is erroneous. By definition, a right-of-reply hearing is

“very limited” and “should be an initial check against mistaken

decisions — essentially, a determination whether there are

reasonable grounds to believe the charges against the employee

are true and support the proposed action.”* Cleveland Bd. of

Ed. v. Loudermill, 470 U.S. 532, 545-546, 105 S. Ct. 1487,

1495, 84 L. Ed. 2d 494 (1985); Gilbert v. Homar, 520 U.S. __,

117 S. Ct. 1807, 138 L. Ed. 2d 120 (1997).

If nothing other than the fanfare of correspondence from

Moore’s attorney is reviewed, it becomes clear that something

more than a “right-of-reply” proceeding was taking place. [App.

Vol. I, pp. 22, 23, 24, 30, 31]. A court-reporter produced 185

page® transcription of the hearing allows this Court a complete

review of the due process provided Moore and leads to the

inevitable conclusion that Moore was provided an opportunity

to secure able counsel, prepare her side of the story and present

a response and defense to the written charges of which she had

been notified. [App. Vol. IV, pp. 753-935, Pl.’s Ex. 37]. That

Moore was provided a meaningful opportunity to invoke

Superintendent Simmons’ discretion prior to the termination

decision is evident from the recorded hearing and satisfies the

core requirements of Fourteenth Amendment procedural due

process. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.

5. Had Moore surfaced in response to Simmons’ request prior to

bving suspended without pay on 1-5-94, she could have received a right-

of-reply hearing prior to that action.

6. A nearly equal volume of exhibits were also submitted.

16

Ct. 1148, 71 L. Ed. 2d 265, (1982); Sutton v. Cleveland Bd. of

Educ., 958 F.2d 1139 (6th Cir. 1992).

This Court has long instructed that “[d]ue process, unlike

some legal rules, is not a technical conception with a fixed

content unrelated to time, place and circumstances.” Cafeteria

Restaurant Workers v. McElroy, 367 U.S. 886 895, 81 S. Ct.

1743, 1748, 6 L. Ed. 2d 1230 (1961); See also Morrisey v.

Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d

484 (1972) (“Due process is flexible ... [to] the particular

situation”). While Respondents acknowledge that the existence

of state judicial remedies is a relevant factor in an abstract

analysis of the fluid concept of “due process,” they do not

concede that the existence or lack of existence of state judicial

remedies is dispositive of the due process issue in this case. In

other words, Moore received ample due process without

consideration of whether or not state judicial remedies were

available to her. As will be shown, that state judicial remedies

were available to Moore is simply icing on the cake.

The cases relied on by Moore for the proposition that there

was no avenue from her hearing with Superintendent Simmons

to the local courthouse is unsupportable. [Petition, p. 15]. On

the contrary, even a cursory review of Tennessee teacher

litigation establishes the ease with which Moore could have

pursued such review, had she desired. See, e.g., Cooper v.

Williamson Co. Bd. of Educ., 803 S.W. 2d 200 (Tenn. 1990),

cert. denied, 59 U.S. 3769, 111 S. Ct. 2013, 114 L. Ed. 2d 100

(1991), Malone v. Shelby Co. Bd. of Educ., 773 S.W. 2d 256

(Tenn. Ct. App. 1989) and Howard v. Bogart, 575 S.W. 2d 281

(Tenn. 1979). See also multiple pages of teacher discharge

litigation following Tenn. Code Ann. § 49-5-101, ef seq.,

Personnel. Also Tenn. Code Ann. § 49-5-409 (Supp. 1994)

provides a remedy for the breach of a fixed term contract such

as Moore’s.

17

Petitioner’s flagship case, Sutton v. Cleveland Board of

Education, 958 F.2d 1139 (6th Cir. 1992) is inapposite. In

Sutton, the plaintiffs sought to trigger state judicial review,

thereby establishing its unavailability. Moore having never

made the attempt, can make no such showing. Besides, the local

Chancery Court would have accepted jurisdiction of Moore’s

grievance.

Petitioner's complaint that Superintendent Simmons was

not made available as a witness is nothing more than legal

posturing. No objection to Superintendent Simmons fulfilling

his statutorily imposed duty was made when Moore’s hearing

was initially scheduled. [App. Vol. IV, p. 683, Pl.’s Ex. 12].

Only as the hearing date drew near did Moore’s representatives

attempt to force the school system into a Hopson’s choice: “we

wish to call Simmons as a witness, therefore he can’t serve in

the capacity mandated by state statute and, if he doesn’t, the

state statute will not be followed.” Jd. Petitioner’s pre-

termination hearing counsel never identified any basis for his

unilateral designation of Dr. Simmons as a witness and talented

trial counsel was unsuccessful during his cross-examination of

Simmons in identifying any need other than the obvious purpose

i.e., T.E.A. contrariness. [App. Vol. III, pp. 540-599]. The trial

judge recognized the grand-standing efforts for what they were,

stating “[Simmons] read a chronology of events and the reasons

he had initiated dismissal proceedings.” [App. Vol. I, p. 195,

R. 69, p. 6].

Petitioner’s complaint that she did not receive sufficient

due process does not warrant review by this Court.

CONCLUSION

Petitioner’s hypothetical example converting Moore to a

physically disabled quadriplegic is both apropos and useful in

18

highlightitig the flaws in Petitioner’s basic logic and initial

premise in this appeal. The non-hypothetical drug-impaired

Moore skips the same issue for herself as she so easily suggests

should be skipped for the hypothetical, quadriplegic Moore.

The Petitioner correctly points out: “/f Moore couid, however,

effectively provide classroom instruction, her quadriplegia

would not of necessity render her unqualified to teach.”

[Petition, p. 13]. That is a big “if’ — both for a hypothetical

quadriplegic Moore and the real Moore. As the Petition itself

recognizes, “Penny Moore suffered from horrible and

sometimes unimaginable psychiatric disorders.” [Petition, p.

13]. While recognizing and agreeing that Moore’s mental,

emotional and drug-saturated capacity was the functional

equivalent of quadriplegia, these Respondents, in the Spring

of 1994, were called upon, as were the courts below, to

determine if Moore could be placed in a classroom with seven

(7) year old children and perform the essential functions of the

job. A review of Moore’s hospital records clearly reflects she

could not.

An unspoken theme in the Petition before this Court is that

the Johnson City School System had no business attempting to

delve into the private, out-side-of-school, life of Moore.

Elementary school teachers, however, serve a unique role in

our society. That the school system is sensitive to that role

should be applauded, not condemned. For example, Petitioner

Moore reported to her psychiatrist that she was frightened of

her supplier of illegal drugs. [App. Vol. V, p. 1032]. Is it nota

legitimate concern to wonder if Moore was frightened enough

of her drug dealer for her to allow him access to an elementary

school campus for the purpose of hawking his wares?

This Court does not usually undertake to review the

concurrent findings of two lower federal courts. Neil v. Biggers,

409 U.S. 188, 193, n.3, 93 S. Ct. 375, 379, n.3 (1972) or reverse

19

“view[s] that the Court of Appeals could properly take of the

evidence.” Hunter v. Underwood, 471 U.S. 222, 232, 105 S.

Ct. 1916, 1922 (1985). The District Court and the Court of

Appeals properly performed their functions in the intensely

factual analysis presented by this case, and did so consistently

with the precedents of this Court. Therefore, no purpose would

be served by review in this Court.

Respectfully submitted,

K. ERICKSON HERRIN

Counsel of Record

EARL. R. BOOZE

HERRIN, BOOZE & RAMBO

Attorneys for Respondents

515 East Unaka Avenue

P.O. Box 629

Johnson City, TN 37605

(423) 929-7113