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STATEMENT OF THE CASE
On October 21, 2010, Felicia Ward was terminated from
her employment as an Economic Development Analyst in the
Birmingham Office of Economic Development (OED). Ward
timely appealed her termination to the Jefferson County
Personnel Board (Personnel Board), asserting that she was
not guilty of the charges and in the alternative that the
punishment was too severe. The charges against Ward were
based on two allegations: (1) creating a hostile work
environment and (2) failure to show any production on
assignments given. (Volume 1: Prehearing Hearing Summary,
Personnel Board Record, hereinafter R). The City of
Birmingham purports to have a policy of progressive
discipline. (Personnel Board Hearing Transcript at Volume 6
at 177).
A hearing before a hearing officer appointed by the
Personnel Board was held on the following dates: June 17,
July 21, August 31, and October 19, 2011. (Clerk Record at
pages 18-23, hereinafter C)
On December 20, 2011, the hearing officer dismissed the
charge of hostile work environment, concluding that Ward
should not be disciplined for a completely nebulous
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offense. (C. at 20.) The hearing officer sustained the
sole remaining charge fail(ure) to show any production on
the assignments given. The hearing officer stated it was
troubling that the City failed to give Ward adequate
notice of her deficiencies prior to termination. (C. at 18-
23.) He concluded that the irregular and inconsistent
manner of counseling militates against the City. Despite
these findings, the hearing officer declined giving Ward
the benefit of modifying or not sustaining the [City]
imposed discipline reasoning that it would be the
quintessential elevation of form over substance. (C. at
page 23.) The hearing officer recommended that Ward be
terminated. (C. at 23.)
On January 10, 2012, the Jefferson County Personnel
Board reviewed the full hearing record, considered the
parties briefs, and heard oral argument. In open forum
that same date, the Personnel Board criticized the City for
violating its own policy of progressive discipline. After
discussing the findings of the hearing officer, the
Personnel Board rejected the hearing officers
recommendation to terminate Ward. (C. at 74). In its final
Order, the Personnel Board modified the hearing officers
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termination recommendation and, instead, ordered the City
to reinstate Ward the following day. Ward was denied back
pay for the period during the fifteen-month period that the
matter was on appeal. (C. at pages 14-15.) That order
(January 10, 2012 Decision) was signed by two members of
the Board: Kenneth Moore and Lonnie Washington, both are
practicing attorneys in Alabama. The third member of the
Personnel Board, Ann Florie a member of the Birmingham
Water Works Board, did not sign the decision in affirmance
of Wards reinstatement without back pay. In its order
modifying the recommendation of the hearing officer, the
Personnel Board did not reject the factual findings of its
hearing officer. (R. at 14-15; seealso partial transcript
of January 10, 2012 Personnel Board hearing included in the
April 18, 2012 remand order, C. at 74.)
On January 18, 2012, Ward filed an appeal to the
Jefferson County Circuit Court asserting that the
punishment of denying back pay was too severe in light of
the factual record. (C. at pages 8-23.)
On January 19, 2012, the City filed an appeal to the
Jefferson County Circuit Court asserting that the Personnel
Boards decision to reinstate Ward was not based upon
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substantial and legal evidence. On January 25, these
appeals were consolidated. (C. at 74.)
On April 10, 2012, the Personnel Board submitted a
brief in support of its decision to order Wards
reinstatement without back pay. (C. at 44-55). Its
submission included a written statement of material facts
in support of its decision to reduce (modify) the level of
punishment. (C. at 44-51.) The Personnel Board explained
that after a lengthy discussion its membersmodifiedthe
level of punishment, a role clearly within its purview. (C.
at 51). The Personnel Board argued that its decision to
reinstate Ward without back pay was based on reasonable
justification. (C. at 51-55.) The Personnel Board detailed
its reasoning in a section entitled [T]he City failed to
follow its progressive discipline policy. (C. at 52-54.)
On April 18, 2012, the Circuit Court reversed and
remanded the appeal, asking the Personnel Board to
suppl[y] a finding of fact to support its decision of
January 10, 2012. (C. at 76.) The Court granted sixty days
within which to comply, after which the matter shall be
taken under submission by the [three-judge panel]for
adjudication. (C. at 76-77.)
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On June 12, 2012, the Personnel Board issued a new
Decision, this time affirming the December 23, 2011 hearing
officers recommendation of termination. (C. at 98). (NEW
Decision) The NEW Decision included a newly written
findings of fact. (C. at 104-114.) The majority decision
was signed this time by Kenneth Moore and Ann Florie. (C.
at 114.) The Personnel Board e-mailed the NEW Decision to
all parties at 3:47 p.m. that same day. Within minutes, the
Birmingham City Police escorted Ward from her office and
out of City Hall. (C. at 139.)
That same day, June 12, 2012, at 4:41 p.m. the
Personnel Board filed with the Circuit Court its NEW
Decision (one of termination) and NEW findings of fact (to
support its NEW Decision). (C. at 98-114).
On June 14, 2012, the City filed a motion and
supporting brief urging the Circuit Court to uphold the
Personnel Boards NEW decision (that of June 12, 2012)
purporting to terminate Ward. (C. at 115-137.)
On June 19, 2012, Ward filed a brief in opposition to
the Citys submission and a motion to strike the Personnel
Boards NEW Decision and findings. (C. at 138-145.)
On June 29, 2012, the City filed a brief in opposition
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to Wards motion to strike and once again mounted a defense
for the Personnel Boards NEW decision. (C. at 146-155).
On July 3, 2012, the Personnel Board filed a brief
opposing Wards Motion to Strike. (C. at 205-207.) The
Personnel Board contended that its recent June 12, 2012
decision was responsive to the Courts remand instructions.
(C. at 205).
On September 17, 2012, the three-judge panel rendered
the Personnel Boards June 12, 2012 Order NULL, VOID and
of no effect whatsoever because it had been issued
outside of the scope of the remand order. (C. at 230). The
Court reversed the Personnel Board original decision to
reinstate Ward, stating that no substantial evidence
exists in the record to support the [January 10. 2012]
decision.) (C. at 230).
On October 3, 2012, Ward filed an appeal to the Civil
Court of Appeals challenging the Circuit Courts decision
reversing the Personnel Boards January 10, 2012 decision
to reinstate plaintiff. Ward asserts that the Boards
January 10, 2012 Decision to reinstate Ward is supported by
substantial evidence. (C. at 232-234).
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STATEMENT OF THE ISSUES
Whether it was error for the court to remand on the
grounds that it lacked a sufficient record on which to
adjudicate when the record included hearing officers
findings of fact and a transcript of the January 10, 2012
Personnel Board deliberations.
Whether it was error to reverse the Personnel Boards
decision when substantial and legal evidence supported its
January 10, 2012 decision to modify the hearing officers
termination to reinstatement without back pay.
STATEMENT OF THE FACTS
Felicia Ward, a fifteen year merit employee in the
Office of Economic Development, was served written notice
of a disciplinary action on October 8, 2010. At that time
she was served these charges, Ward was on administrative
leave, having been placed on administrative leave on
September 29, 2010, pending an investigation of hostile
work environment. The administrative leave notice was
dated September 10, 2010. It did not include any allegation
that Ward was being investigated for work performance
issues, such as deficiencies in production on assignments
given.
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Wards fifteen-year employment history included only
one other disciplinary action: a three-day suspension in
May 2010. During the period following this three-day
suspension up through the time she was placed on
administrative leave on September 29, 2010, the City did
not evaluate Ward or report to her any of the City alleged
deficiencies that resulted in her being taken out of
service. (C. at 18-23). On the same day Ward was placed on
administrative leave, Ms. Tracy Morant-Adams, the Director
of Office of Economic Development (OED), sent a letter to
the Citys Chief of Operations, Jarvis Patton, requesting
assistance in addressing an employment issue involving
Ward, an issue that occurred over the course of several
months. (R. at Vol.3: Respondent Exhibit 9).
The City served charges against Ward on October 8,
2010.1 A determination hearing was held on October 18,
1On October 8, 2010, police cars from three jurisdictionsarrived at the home of the Ward family. Ward was served
a copy of the Citys notice of determination hearingsigned by Jarvis Patton, the Citys Chief of Operations.(Vol. 2: Respondent Exhibit 6 at 848-851). Policeofficers were dispatched to Wards home again on October13, 2010. Ward was served an amended notice, reschedulingthe determination for October 18, 2010. (Vol. 6 at 852-853).
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2010.2 Ward was served a termination notice on October 21,
2010.3
The City based its charges against Ward on two specific
allegations:
You have met several times with your direct
supervisor regarding your assignments; however,
you have failed to show any production on the
assignments given.
Allegations that your behavior has created a
hostile work environment have been sustained after
an investigation conducted by the City ofBirminghams Personnel Office.
On October 18, 2010, Ward responded to charges at a
determination hearing before the OED Director Morant-Adams,
2See Vol. 2: Complainant Exhibit 20, audio recording ofthe October 18, 2010 determination hearing. Mrs. Wardresponded to the charges and filed a written rebuttal.
(Vol. 2: Respondent Exhibit 6-a; Vol. 6 at 854). Thedetermination hearing was held by Tracy Morant-Adams, theDirector of the Office of Economic Development in thepresence of Jarvis Patton. The charges were read alongwith the specific allegations giving rise to thesecharges. There was no mention that Ward was under aperformance improvement plan. The hearing officer didnot find in his report that Ward was under a performanceplan.
3
On October 21, 2010, a notice of termination was placedat the doorstep of Wards home. (Vol. 6 at 855).Operations Chief Jarvis Patton stated that he signed theletter of termination at the recommendation of TracyMorant-Adams. (Vol. 3: Respondent Exhibit 4 at 10, sworntestimony of Operations Chief Patton during Wardsunemployment hearing on December 29, 2010).
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and Jarvis Patton. On October 21, 2010, the City terminated
Wards employment. Ward timely appealed to the Jefferson
County Personnel Board.
The matter was heard by a duly appointed hearing
officer who made findings of fact and offered a
recommendation as to appropriate discipline. The hearing
officer specifically disregarded the charge of creat[ing]
a hostile work environment. He observed that neither
document nor witness defines the meaning of hostile work
environment. Citing failure of proof, the hearing officer
concluded that Ward should not be disciplined for a
completely nebulous offense. 4 (C. at 18-23).
4 The charge hostile work environment stemmed from a
complaint lodged on September 29, 2010 by a recently-appointed co-worker (Ms. Cooper), who said Ward was notpulling her fair share. (Vol. 6 at 272, 479-480,517). Patton took Ward out of service, directing theCitys Personnel Director Peggy Polk to conduct aninvestigation. (Vol. 6 at 481-483, 506). Polk wasnever given a copy of Morant-Adams September 29, 2010letter to Operations Chief Jarvis Patton regardingappointee Coopers charge. (Vol. 6 at pages 484-485).Polk conceded at the hearing that the City did not have
a specific policy on hostile work environment. Theterm was selected after Ward earlier grievancepreviously filed with the Personnel Board. (Vol. 6 at165-167, 469-470, 537-538). On October 1, 2010, Polksustained a charge of uncomfortable work environmentafter conducting a four-hour interview of staff. (Vol.6, at 507-511, 518).Ward, who was not interviewed,was charged on October 8, 2010. (Vol. 6 at 480, 518).
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The Personnel Board, while not disturbing the factual
findings of the hearing officer, rejected his
recommendation to terminate Ward and instead imposed a
fifteen-month suspension. (C. at 14-16).
STANDARD OF REVIEW
The standard of review recognizes the competence and
expertise of the Jefferson County Personnel Board. Ex parte
Personnel Board of Jefferson County, 440 So.2d 1106, 1109
(Ala. Civ. App. 1983)(the special competence of the agency
lends great weight to its reasoning and decision). In
general, the review by a court of any agency action is
extremely limited. Templin v. City Commission of
Birmingham, 187 So.2d 230 (Ala.1966)(for purposes of
appeal, it is irrelevant that the court may have reached a
different result). When an agency utilizes a hearing
officer, as here, his findings of fact are presumed to be
correct. Coleman v. Alabama Alcoholic Beverage Control
Board, 465 So.2d 1158 (Ala. Civ. App. 1985).
The courts review is limited to the record made before
the agency and to questions of law presented. The
determination of the weight and credibility of the evidence
presented is solely within the province of the agency.
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Thus, appellate review in this appeal is limited to (1)
proper application of relevant law and (2) whether the
Personnel Boards ruling is supported by any legal
evidence. The court must affirm if there is substantial
evidence to support its finding. City of Mobile v. Seals,
471 So.2d 431, 433 (Ala.Civ.App. 1985).
Substantial evidence is relevant evidence that might
be accepted by reasonable minds as adequate to support a
conclusion. City of Mobile v. Trott, 596 So. 2d 921, 922
(Ala.Civ.App.1991). Substantial evidence is more than a
mere scintilla of evidence but can be less than a
preponderance of the evidence. Freman v. City of Mobile,
590 So.2d 331 (Ala.Civ.App.1991).
If there is substantial evidence to support the
Personnel Boards determination, the trial court must
affirm its decision. The court may not substitute its
judgment for that of the Personnel Board. City of Mobile v.
Seals, 471 So.2d 431, 433 (Ala.Civ.App. 1985).
The court is not permitted to judge the wisdom of the
Personnel Boards decision. Creagh v. City of Mobile Police
Dept, 543 So.2d 698 (Ala.Civ.App.1989). The court has
recognized that [i]f judicial review is ultimately
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necessary, the special competence of the [Personnel Board]
lends great weight to its reasoning and decision. Ex parte
Personnel Board of Jefferson County, 440 So.2d 1106, 1109
(Ala.Civ. App.1983). It is settled law that court must not
usurp the discretionary role of the agency by stepping in
when the choice is not clearly unreasonable or arbitrary.
(Id.)
SUMMARY OF THE ARGUMENT
The three-judge panel erred in reversing the January
10, 2012 Personnel Board decision in reliance on Ex Parte
Pierson, 63 So.3d 632 (Ala.Civ.App. 2010.)
In Pierson, the Personnel Board rejected the hearing
officers report in its entirety; that is the Personnel
Board rejected the hearing officers recommendation to
reinstate Pierson and rejected the findings of facts in
support of that recommendation. (For Personnel Board Order,
see Pierson Appeal Record at 10.) And in Pierson, the
Personnel Board did not issue any findings of fact or
furnish a transcript of the Boards deliberations leading
to its decision to reject the hearing officers report in
its entirety. (Id. At 634.)
In Ward, the three-judge panel had before it on appeal
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the January 10, 2012 Personnel Board decision thatmodified
only one aspect of the hearing officers report: the
hearing officers recommendation to terminate Ward. In
Ward, the appeal record included a transcript of the
proceedings of January 10, 2012, during which the Personnel
Board deliberated and voted to reduce the level of
punishment. As revealed in the transcript, the hearing
officers findings and conclusions were discussed during
these deliberations. (see abbreviated transcript, C. at 74).
Appellant submits that the remand order of the three-
judge panel reveals a clear misunderstanding of the record
on appeal. (C. at 72-77). The court incorrectly asserted
that it had no record on which to adjudicate when in fact
it had before it a transcript of the Personnel Boards
deliberations and the hearing officers findings of fact
findings of fact. Despite this record the court stated:
On January 10, 2012, the JCPB issued its order signedby two of the three members of the Board which simplystated that the report and recommendation of the
Hearing Officer, Roger Brown was reversed and that
Ms. Ward be reinstated to her position effectiveJanuary 11, 2012, without back pay. (C. at 74).(Emphasis added)
As the record reveals, the hearing officers report was
an exhibit to the Decision rendered by the Board on January
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10, 2012. (C. at 8-23). These findings were not disturbed.
The record the court had before it was clear: the Personnel
Board on January 10, 2012 MODIFIED the hearing officers
report and recommendation, reversing only the level of
punishment. The Personnel Board did not (as in the Pierson
appeal) set aside the report of the hearing officer or
reverse his findings.5 In Ward, the Personnel Board
performed fully its quasi-judicial function in this
disciplinary matter.
The Court also had before it the transcript of the
Boards deliberations during the Personnel Board hearing on
January 10, 2012. (C. at 73). The transcript was made part
of the record, yet the court ignored the reasoning
expressed by the Personnel Board during its deliberations.
(April 10, 2012 Order of Three-Judge Panel, C. at 73). A
portion of the transcript (quoted in the Order) reveals the
reasoning of the Personnel Board as the members considered
the hearing officers findings. (C. at 74).
The Board Chairman commented frankly and openly that
there was an awful lot of bad communication between the
5Act No. 248, Sec. 22, requires that the Board [within a 45-day period] must both consider and modify, alter, setaside or affirm the hearing officers report.
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City and Ward regarding work performance. The Chairman
criticized the City for its failure to follow its own
rules. The Board Chairman also recognized Wards status as
a fifteen-year merit employee was a relevant factor in
determining the level of discipline.
The Chairman called for a vote on an alternate
punishment. By majority vote, the City was ordered to
reinstate Ward the next business day to her original
assignment in the Office of Economic Development. (C. at
94). As punishment for the charge of failure in production,
the Personnel Board denied Ward back pay. Thus, it is clear
from the record before the court that the Personnel Board
deliberated and discussed the hearing officers findings
before reaching a decision to moderate the harshness of
punishment. (C. at 94). The Personnel Boards decision was
not arbitrary or capricious, even if the three-judge panel
does not personally agree with the Personnel Boards
reasoning.
Appellant submits that this same error is reflected in
the Courts September 17, 2012 Order reversing the
Personnel Boards decision to reinstate Ward without back
pay. Once again the court ignored the full record. In so
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doing it took it upon itself to choose the proper level of
punishment for Ward. It is without dispute that on January
10, 2012 the Jefferson County Personnel Board rejected the
hearing officers quintessential argument and clearly and
unequivocally decided that form does matter in a merit
system and the City should be held to a high standard in
its treatment of its employees.
Appellant contends that the court usurped the role of
the Personnel Board despite having in the record a
transcript of the Personnel Board deliberations upon which
it based its decision to reject the hearing officers
recommendation. The court stepped in and ignored the
reasoning and decision of Personnel Board to modify the
level of punishment. By so doing, the court interjected
itself into the workings of the Personnel Board.
In sum, the court had before it a record on which to
adjudicate the limited issue before it: whether substantial
evidence exists to support the Personnel Boards decision
to reinstate Ward. In violation of settled law, the court
substituted its judgment on matters clearly within the
purview of the Personnel Board.
Appellant further submits that the Personnel Boards
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decision to reinstate Ward is supported by substantial and
legal evidence. The Circuit Court decision to reverse
the Personnel Boards decision is in error and due to be
reversed based on record on appeal.
ARGUMENT
ISSUE: Whether it was error for the court to remand on
the grounds that it lacked a sufficient record on which to
adjudicate when the record included hearing officers
findings of fact and a transcript of the January 10, 2012
Personnel Board deliberations.
On April 10, 2012, the Personnel Board filed a brief in
support of Wards reinstatement without back pay. (C. 44-
55). The Personnel Board submitted that its decision to
modify the level of punishment was supported by substantial
evidence. (C. at 55). The Personnel Board reasoned that the
City has an obligation to follow its own progressive
discipline policy. The Personnel Board also reasoned if the
merit employee is to be held to a high standard so must the
employer. (C. at 55).
The Personnel Board forthrightly argued that the City
had an obligation to give notice of any deficiencies in
advance of a disciplinary action - certainly an action that
resulted in the Citys decision to terminate the employee.
The Personnel Board also forthrightly argued to the court
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that its decision to reinstate Ward should be affirmed
because it is based on reasonable justification. (C. at
54).
In its brief the Personnel Board relied on settled law:
Personnel Board v. King, 456 So.2d 80 (Ala. Civ. App. 1984;
Thomson v. Alabama Department of Mental Health, 477 So. 2d
427 (Ala. Civ. App. 1985; State Personnel Board v. Mays,
624 So. 2d 194 (Ala. Civ. App 1993.) (C. at 54.)
The Personnel Board correctly argued that the standard
of review recognizes the competence and expertise of the
Jefferson County Personnel Board. Ex parte Personnel Board
of Jefferson County, 440 So.2d 1106, 1109 (the special
competence of the agency lends great weight to its
reasoning and decision). The Court is not to judge the
wisdom of the Personnel Board. Creagh v. City of Mobile
Police Dept, 543 So.2d 698 (Ala. Civ. App. 1989.)
Appellant submits that the Personnel Board indeed had
sufficient grounds on January 10, 2012 to modify the harsh
punishment recommended by the hearing officer. The
Personnel Board nonetheless imposed a severe penalty by
denying Ward any back pay. (C. at 51.)
An appeal of this nature is limited to the record
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before the Personnel Board. Adair v. Personnel Board of
Jefferson County, 600 So.2d 318-319 (Ala. Civ. App. 1992).
The court cannot claim that the record is insufficient to
support the Personnel Boards decision when at the same
time the court ignores the transcript of the Personnel
Boards deliberations leading up to its decision to
reinstate Ward. Personnel Board had sufficient grounds on
which to reduce the level of punishment and that record was
at all times before the court for adjudication.
ISSUE: Whether it was error to reverse the Personnel
Boards decision when substantial and legal evidence
supported its January 10, 2012 decision to modify the
hearing officers recommendation and order reinstatement.
A.The hearing officers findings of fact were
considered by the Personnel Board.
It is settled law that the facts determined by the
hearing officer are presumed to be correct. Coleman v.
Alcoholic Beverage Control Board, 465 So2d 1158 (Ala. Civ.
App. 1985). The Personnel Board did not disturb the
findings of the hearing officer. (C. at 18-23). The
Personnel Board did, however, MODIFY his recommendation
and immediately reinstate Wards employment. Below is a
summary of the hearing officers findings and conclusions.
1. Felicia Ward, a fifteen-year employee was assigned as
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an Economic Development Analyst in the City of
Birminghams Office of Economic Development. (C. at
19).
2. Ward was at all times a merit employee subject to
the JCPB Rules and Regulations. (Id.)
3. Tracy Morant-Adams, the Director of Economic
Development Office since 20086 was aware of the
Citys policy of progressive discipline and
performance evaluation of employees. (C. at 21).
4. Morant-Adams served as Wards supervisor for over two
years. (C. at 20).
5. Morant-Adams recognized that these practices
(progressive discipline and performance evaluations),
if implemented, ensure timely notice of performance
issues and afford employees an opportunity to remedy
deficiencies. (C. at 21).
6. Morant-Adams admitted that she did not perform annual
evaluations of Ward during the two years preceding
Wards termination, that is, 2008 and 2009. (Id.)
6Tracy Morant-Adams, an appointed employee, serves at thepleasure of the Citys Mayor. The City has not sought toappoint Mrs. Morant-Adams to an Executive Serviceappointment under the Jefferson County Personnel Board.(Vol. 3: Complainant Exhibit 23; Vol. 6 at 468, 174.)
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Moreover, Morant-Adams admitted that she did not give
Ward any written reprimands during these years. (C.
at 22).
7. Wards first disciplinary action came in April 2010.
(C. at 22). Ward was noticed in May with a three-day
suspension as a result of two specific infractions.
(Id.). Adams admitted that the suspension was not
preceded by any written reprimands or any written
recommendations for improving work performance.
(Id.). Morant-Adamsconceded that these two specific
deficiencies (reporting on Outlook calendar and
attending meetings at BCIA) were remedied and she was
never again charged with these specific infractions.
(C. at 22).
8. After Wards three-day suspension, four individual
meetings were held with Ward (May 12, June 7, June
21, and the last meeting on August 5, 2010. (C. at
23). Prior to her testimony, Morant-Adams reviewed
the audiotapes of these meetings. (Id.) Adams
testified that during these meetings she did not
convey any concerns about Wards productivity or
working relationships at the office. (Id.)
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9. The hearing officer found this pattern troubling,
opining that irregular and inconsistent manner of
counseling militates against the City (C. at 23).
B.The Personnel Board reviewed the report of the
hearing officer and the hearing record prior to its
ruling to reinstate Wards employment.
On January 10, 2012, the Personnel Board had before it
the hearing officers findings of fact and the complete
record of the hearing. The charge against Ward was reduced
to one allegation:
You have met several times with your direct
supervisor regarding your assignments; however,
you have failed to show any production on the
assignments given.
The Personnel Board reviewed the hearing record,
received written objections from the parties, and heard
oral argument. On January 10, 2012, the Board reversed the
City termination action and ORDERED that Ward be
immediately reinstated with no back pay. (C. at 14-16).
At the time Ward was disciplined in April 2010 (for two
infractions) one would reasonably expect that had any other
deficiencies existed, such would have been addressed at the
determination hearing held in the presence of Morant-Adams
and the Citys Personnel Director Peggy Polk. Having not
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presented at that time any other deficiencies (such as
failure in production, creating a hostile work
environment); having not given Ward written reprimands or
suspensions in 15 years, particularly as to Morant-Adams
since 2008; and having not recorded in the file any
evidence that any verbal reprimands had been given to Ward;
one must logically conclude that these two specific
deficiencies (for which Ward was suspended three days) were
in fact the sole deficiencies related to Wards work
performance.
One would also logically conclude that the events
giving rise to the charges alleged in October 8, 2010
stemmed from work behavior during the ensuing months7, May
through September 29, 2010, the date Ward was placed on
administrative leave pending an investigation of hostile
work environment. This time frame certainly conforms to
correspondence crafted by Morant-Adams (coincidentallysent
that same day Ward was placed on administrative leave) and
sent to Jarvis Patton, requesting his assistance with Ward
which had occurred over the course of several months.
7For a period of time Mrs. Ward was on approved medicalleave, working a half-day schedule (May 10 through July 15,2010.) (Vol. 6 at 284).
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(Vol. 3: Respondent Exhibit 9).
In a merit system, management has an obligation to
communicate clearly expectations of standards of behavior
and production, and to provide constructive feedback as to
any failure to perform in accordance with such standards.
Yet the Record contains no evidence that during this period
(May through September) that Ward was apprised that she
failed to show any production on the assignments given to
her by her supervisor, Mrs. Adams.8 Wards first notice
came with the charge on October 8, 2010. At that time,
Ward was on administrative leave pending an investigation
of hostile work environment. Indeed, the hearing officer
8The City tries to claim that Ward was placed on a
performance improvement plan following her return fromleave in July 2009. (Vol. 6 at 364-365). The City admittedthat plans of this nature were not formal, were notsigned by the parties, or filed with the PersonnelBoard. (Id. at 40). Mrs. Morant-Adams testified that shemet with Mrs. Polk in June 2009 to discuss such a planwhile Ward was on leave. (Vol. 2: Respondent Exhibit 3 &18; Vol. 6 at 82-84). Adams claimed that she met withWard upon her return from medical leave in July 2009.(Vol. 6 at 364-365). Adams e-mail welcoming Ward back to
work following an extended leave makes no reference to sucha plan. ( Vol. 2: Respondent Exhibit 2). The Citytries to claim that it reinstituted this improvement planin May 2010. Adams admits no signed plans exist. (Vol. 6at 367.) No mention of such plans are found in any of Mrs.Morant-Adams meetings notes for June 7, June 21, and August5, 2010. (Vol. 3: Complainant Exhibits respectively 12,15 & 16).
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found this pattern or lack thereof, is troubling. Also
troubling was the irregular and inconsistent manner of
counseling. Disciplinary actions must adhere to merit
principles which require at fair notice that the employer
is entertaining concerns about an employee. It also
requires after notice an opportunity for the employee to
remedy any perceived deficiencies.
The hearing officer recognized that the City did not
extend these basic considerations to Ward, a fifteen year
merit employee. Thus, there is substantial evidence that
progressive discipline was not followed to Wards detriment.
Because this ground (hostile work environment) was
not considered by the hearing officer, it cannot support
any disciplinary action against Ward. Ex parte Personnel
Board of Jefferson County, 440 So.2d 1106, 1108
(Ala.Civ.App. 1983) (Circuit Court refused to sustain the
disciplinary action on an alternate ground because the
Personnel Board hearing officer made no findings on the
evidence offered on that charge).
C.Substantial evidence supports finding that City
violated its policy of progressive discipline.
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The hearing officer recognized that Ward, a fifteen
year merit employee, had never been disciplined prior to
April 2010. As the record reflects, Morant-Adams served as
Wards direct supervisor since February 28, 2008, the date
on which Morant-Adams was appointed by Birmingham Mayor
Larry Langford. (Vol. 6 at 172, 316). Jarvis E. Patton
became Morant-Adams supervisor in February 2010 after his
appointment as Chief of Operations for the Citys newly
elected Mayor, William Bell. (Id. at 219).
The disciplinary actions occurred after Jarvis Patton
assumed supervision over the Office of EconomicDevelopment. Both Patton and Morant-Adams are contract
employees, serving at the pleasure of the Mayor. (Vol. 6 at
174-175 & 269).
The hearing Officer further concluded that a lack of
counseling (irregular and inconsistent and troubling)
militates against the City. (C. at 23). This failure to
assure a merit employee counseling and sufficient notice isalso troublesome because the Citys supervisors were aware
of their obligations in this regard. (Id. At 22). Morant-
Adams communicated her plans to engage the disciplinary
process but did not share her concern with Ward.9 (Vol. 6 at
9 The only e-mail correspondence regarding possible
disciplinary action was sent on April 15, 2010. Morant-Adams informed Operations Chief Patton that she was aware
specific/defined steps must be taken to engage thedisciplinary process. She further recognized that JCPBrules pertaining to discipline must be followed or we runthe risk of our action being overturned by the PersonnelBoard. (Vol. 3: Respondent Exhibit 20, Adams e-mail toPatton on April 15, 2010). Shortly thereafter, Adams metwith the Citys Personnel Director Peggy Polk to discuss adisciplinary action against Mrs. Ward. (Vol. 6 at 229-231).
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229-230).
D.Substantial evidence supports the finding that Ward
was not afforded timely notice or counseling
concerning any productions issues.
1. Felicia Ward was employed for fifteen years by the
City of Birminghams Office of Economic Development as an
Economic Development Analyst, a classified position under
the Jefferson County Personnel Board. (Vol. 6 at 262; for
job specifications of Economic Development Analyst, see
Vol. 2: Respondent Exhibit 13; see also Vol. 6. at 810-814
for testimony of Felicia Ward regarding business retention
duties).
2. Ward was never cited for any disciplinary action until
April 16, 2010, following which she was given a three-day
suspension by her supervisor Tracey Morant-Adams, the
Director of the Office of Economic Development. (Vol. 6 at
175-176).
3. Morant-Adams never conducted an evaluation of Ward
pursuant to Jefferson County Personnel Board Rule 14.3
Efficiency Rating Plan. (Vol. 6 at 177-178).
4. Morant-Adams testified that the City of Birmingham
adheres to a policy of progressive discipline. (Vol. 6 at
177). She further testified that she knew how to discipline
employees and recognized the importance of pointing out
deficiencies immediately so that corrective action could be
taken. (Id. at 195-196, 218-219, 222-224).
Ward was not was informed of this contemplated disciplinaryaction. (Vol. 6: 229-230). Ward was reprimanded on April28, 2010 and given a three-day suspension. (Vol. 3:Respondent Exhibit 5).
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5. The first disciplinary charge against Ward came on
April 28, 2010. The determination hearing on this first
disciplinary was held on April 29, 2010. (Vol. 3:
Respondent Exhibit 5 at page 2). In May 2010, Morant-Adams
suspended Ward for three days, alleging that Ward had not
followed a directive to maintain her schedule on the Office
Outlook calendar. Ward was also charged with not reporting
to Birmingham Construction Industry Authority, a private
enterprise, (BCIA) as directed. (Vol. 3: Respondent 5,
charges; Respondent Exhibit 8, Wards rebuttal at 2,
claiming that Morant-Adams had instructed her to lowervisibility at BCIA until after the election cycle.).
6. Morant-Adams admitted at the hearing that Wards
three-day suspension was not preceded by any written
reprimands or written recommendation on improving her
performance. (Vol. 6 at 229-230).
7. Morant-Adams testified that Ms. Ward was never again
charged with these specific infractions. (Vol. 6 at 302-303). Ward maintained her Outlook calendar and as of June
7, 2010 was no longer required to work at BCIA. 10 (Vol. 6
at 303); Vol. 2: Respondent Exhibit 24 at 1; see also page
2, as there is no reference to any performance improvement
plan).
8. From May 10 through July 15, 2010, Ward worked a half-
day schedule pursuant to an approved Family Medical Leave.(Vol. 6 at 284). Both Polk and Morant-Adams reviewed the
dates of the leave during their June 21, 2010 meeting with
10Adams confirmed in her meeting notes with Ward that asDirector she wanted to close the loop on the BCIAs needfor a liaison from this Office..
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Ward. (Vol. 6 at 279-280).
9. Morant-Adams admitted that she did not express any
concerns to Ward at any meeting or put anything in writing
regarding any performance issues giving rise to her
termination. (Vol. 6 at 230, 373, 375-376 (testimony of
Morant-Adams); testimony of Ward at 865; Vol. 3;
Complainant Exhibit 20 for audio recordings of the four
individuals meetings with Ward: May 12, June 7 & 21, and
the final meeting on August 5, 2010. (The recordings of
these four meetings reveal no mention of a performance
improvement plan).10. Ward was placed on administrative leave on September
29, 2010 pending an investigation of hostile work
environment. (Vol. 6 at 256-258.) There was no reference
to failure to produce in the notice placing Ward on
administrative leave. (Vol. 2: Respondent Exhibit 10).
11. Morant-Adams was aware in advance that Jarvis Patton
planned to place Ward on administrative leave pursuant tothe September 10, 2010 letter he composed. (Vol. 6 at 257-
258). She did not inform Ward of this contemplated action.
(Vol. 6 at 816-823).
12. Ward was terminated from employment on October 21,
2010, after being read disciplinary charges on October 18,
2010. 11(Vol. 2: Respondent Exhibit 6).
E. Substantial evidence supports a finding relating toWards adjusted schedule under the Family Medical Leave
Act.
11 An audio recording of the hearing reveals that there wasno mention of a performance improvement plan. (Vol. 3:Complainant Exhibit 20).
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1. In his report, the hearing officer recognized that for
a lengthy period of time Ward was on half-day schedule
related to an approved leave under the Family Medical Leave
Act. (May 10 through July 15, 2010). (C. at 20). Ward was
on approved Family Medical Leave (FMLA) during the period
May 10 through July 15, 2010, working a half-day schedule
to accommodate a medical condition. (Vol. 6 at 284, 297-
280).
2. In handwritten notes recorded on Wards monthly status
report during the June 7, 2010 meeting, Adams noted that
Ward was not able to attend afternoon meetings due to her
medical condition. (Vol. 2: Respondent Exhibit 24, Ward
Monthly Status Report pertaining to Woodlawn Business
Association, undesignated page).
3. Morant-Adams conceded that it would not be possible
for Ward to do a full-days work in a half-day, expecting
that Ward would be behind in her work. (Vol. 6 at 286 &
302.)
4. This accommodation was discussed at the June 21, 2010
meeting between Ward and Morant-Adams. (Vol. 6 at 202 &
279.) That same day Morant-Adams informed the BPD Internal
Affairs investigator that Mrs. Ward was taking off at Noon
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and leaving work and she expressed concern that Ward was
getting a full-day pay but not staying all day. (Vol. 6 at
277- 279).
5. The hearing officer also concluded that sources of
performance complaints from some of the other employees may
be related to the fact that it was not well-known that Mrs.
Ward was on City approved FMLA which permitted her to
leave at Noon for an extended period in 2010. Nonetheless,
apparent strife ensued regarding this accommodation,
particularly the filing of a complaint by co-worker Lisa
Cooper that Ward was not doing her fair share and leaving
at Noon each day. 12 (C. at 20). Prior to this charge, Ward
filed grievances contending that she was being investigated
by the Citys Internal Affairs Department regarding her
half-day FMLA approved schedule. 13
12During an interview with the IAD on June 21, 2010, Adamsreported her concerns that Ward was getting a full days
pay while leaving work at noon. (Vol. 6 at 277). Co-workers did not know that Mrs. Ward was on FMLA: AndrewMayo (Vol. 6 at 658-659); Lisa Cooper (Vol. 6 at 779-782);Angela Williams (Vol. 6 at 724-725); see also Michael Bell
(Director of the BCIA) Vol. 6 at 602-603).13 The Citys Personnel Department was notified of Wardsgrievances. (Vol. 6 at 380-381, 571). Adams responded toboth grievances. (Vol. 6 at 380-381); see RespondentExhibit 19, page 1 for Adams general denial of grievance).(Jefferson County Personnel Board records reflect that theMay 2010 grievance was ruled untimely and that the June2010 grievance was eligible for adjustment; Vol.2:
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F. Substantial evidence exists to support finding thatMorant-Adams did not inform Ward of any work
deficiencies during individual conferences in the
months leading up to her termination.
The solewritten notice of performance issues at issue
in this disciplinary action came on September 29, 2010 when
Ward was placed on administrative leave by the Citys Mayor
in a memo dated September 10, 2010. (Vol. 6 at 820-822;
Vol. 2: Respondent Exhibit 10). In this belatedly delivered
memo, Ward was informed that she was under investigation
for creating a hostile work environment. The memo
contained no mention of work production issues.
Prior to writing this letter, Morant-Adams was informed
that Patton had in his possession a letter dated September
10, 2010, signed by the Mayor, placing Ward on
administrative leave, pending an investigation of hostile
work environment. (Vol. 6 at 257-258.)
G. Substantial evidence supports a failure of the City
to follow its own progressive discipline policy.
1. After Wards three-day suspension, Morant-Adams
testified that she held four individual meetings with Ms.
Ward in 2010: May 12, June 7, June 21 and the last on
Respondent Exhibits 22 & 25).
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August 5, 2010. Morant-Adams reviewed the audio tapes of
these meetings prior to the appeal hearing before the JCPB.
(Vol. 6 at 215).
2. Adams conceded that during these individual meetings,
she did not convey any concerns about Wards productivity
or working relationships at the office. (Vol. 2 at 373-
376). She also conceded that Ward could not possibly
achieve a full days work while on her approved FMLA half-
day schedule. (Id. at 286).
3. During a meeting on June 21, 2010, Morant-Adams
commended Ward for her creativity regarding a grant
proposal for prospective businesses interested in becoming
members of BCIA. (Id. at 298-299). Morant-Adams did not
give Ward a copy of her meeting notes, nor was Ward given
an opportunity to sign Adams contemporaneous summary of
tasks reviewed during that meeting. (Id. at 299; Vol. 3:
Complainant Exhibit 14).
4. The audio recording of the August 5, 2010 meeting was
played in its entirety at the Board hearing. (Vol. 6 at
188-200). At the close of this meeting, (the final
individual meeting with Ward held prior to her
termination), Morant-Adams invited Ward to present her
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ideas at the Economic Development monthly staff meeting.
(Id. at 200). Morant-Adams also testified that the meeting
was congenial and productive. (Id. at 186, 196). The Citys
Personnel Director Peggy Polk was present at this meeting.
(Id. at 186).
5. Morant-Adams personal notes related to the August 5th
meeting were memorialized, but were not shared with Ward.
(Vol. 3: Complainant Exhibit 16.) These notes, suggesting
criticism were not heard on the audio recording played at
the hearing. (Vol. 6 at 185). At this meeting, Ward
furnished Morant-Adams a copy of her July status report.
(Vol. 6 at 847; Vol. 2: Respondent Exhibit 12, for status
report).
CONCLUSION
On January 10, 2012 the Personnel Board rejected the
hearing officers recommendation to terminate Ward. The
Personnel Boards rejection of the Citys harsh penalty is
supported by the record. The Circuit Court erred when it
remanded the appeal and solicited additional findings of
fact. The Personnel Boards decision to reinstate Felicia
Ward without back pay is supported by substantial evidence.
The Personnel Boards decision was not arbitrary or
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capricious. Modification of the level of punishment is
within its purview and was justified under the factual
circumstances.
In light of foregoing the January 10, 2012 decision of
the Personnel Board is due to be affirmed. The Circuit
Court is due to be reversed.
___________________________Gayle Gear
Attorney for Felicia Ward
CERTIFICATE OF SERVICE
I hereby certify that on this the ., I mailed theforegoing to the following counsel of record: Frederic L.Fullerton (Assistant City Attorney, 600 City Hall Building,Birmingham, Alabama); Michael K.K. Choy (Burr and Forman,420 North 20th Street, Birmingham 35203); and Laura Nettles(Lloyd, Gray, 2301 20th Place South, Suite 300, Birmingham,
Al 35223).
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