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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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modified.wardbrief

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