STATEMENT OF THE CASE On October 21, 2010, Felicia Ward was terminated from her employment as an Economic Development

Analyst in the Birmingham timely Office of Economic termination Development to the (OED). Ward

appealed

her

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 Birmingham Board Record, to hereinafter have a R). of The City of

purports

policy

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
1

for

completely

nebulous

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 1823.) 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 it the [City] be the

imposed

discipline

reasoning

that

would

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 Personnel the findings of the the hearing officer, the

Board

rejected

hearing

officers

recommendation to terminate Ward. (C. at 74). In its final Order, the Personnel Board modified the hearing officers
2

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; see also partial transcript of January 10, 2012 Personnel Board hearing included in the April 18, 2012 remand order, C. at 74.) On January 18, 2012, Circuit Ward filed an appeal to the the

Jefferson

County

Court

asserting

that

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
3

Ward

was

not

based

upon

substantial

and

legal

evidence.

On

January

25,

these

appeals were consolidated. (C. at 74.) On brief April in 10, 2012, of the its back Personnel decision pay. (C. Board to at submitted a

support

order

Wards Its

reinstatement

without

44-55).

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 members modified the 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 the a 18, 2012, the Circuit the Court reversed Board and to

remanded suppl[y]

appeal, of

asking fact to

Personnel its

finding

support

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.)

4

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 Personnel same Board day, June 12, 2012, at 4:41 Court p.m. its the NEW

filed

with

the

Circuit

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
5

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 Ward, the the Personnel that Board no original decision to

reinstate exists in

stating to

substantial [January

evidence 10. 2012]

record

support

the

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).

STATEMENT OF THE ISSUES Whether it was error for the court to remand on the grounds that it lacked the a sufficient included record on which to

adjudicate

when

record

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.

7

Wards

fifteen-year

employment

history

included

only

one other disciplinary action: a three-day suspension in May 2010. During up the period the following time she this was three-day placed on

suspension

through

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 2010.1 A City served charges against was Ward held on on October October 8, 18,

determination

hearing

On October 8, 2010, police cars from three jurisdictions arrived at the home of the Ward family. Ward was served a copy of the Citys notice of determination hearing signed by Jarvis Patton, the Citys Chief of Operations. (Vol. 2: Respondent Exhibit 6 at 848-851). Police officers were dispatched to Wards home again on October 13, 2010. Ward was served an amended notice, rescheduling the determination for October 18, 2010. (Vol. 6 at 852853).
1

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 of Birminghams Personnel Office. On October 18, 2010, Ward responded to charges at a determination hearing before the OED Director Morant-Adams, See Vol. 2: Complainant Exhibit 20, audio recording of the October 18, 2010 determination hearing. Mrs. Ward responded to the charges and filed a written rebuttal. (Vol. 2: Respondent Exhibit 6-a; Vol. 6 at 854). The determination hearing was held by Tracy Morant-Adams, the Director of the Office of Economic Development in the presence of Jarvis Patton. The charges were read along with the specific allegations giving rise to these charges. There was no mention that Ward was under a performance improvement plan. The hearing officer did not find in his report that Ward was under a performance plan.
2

On October 21, 2010, a notice of termination was placed at the doorstep of Wards home. (Vol. 6 at 855). Operations Chief Jarvis Patton stated that he signed the letter of termination at the recommendation of Tracy Morant-Adams. (Vol. 3: Respondent Exhibit 4 at 10, sworn testimony of Operations Chief Patton during Wards unemployment hearing on December 29, 2010).
3

and Jarvis Patton. On October 21, 2010, the City terminated Wards employment. Ward timely appealed to the Jefferson County Personnel Board. The officer matter who was heard by a of duly fact appointed and hearing a

made as to

findings

offered The

recommendation

appropriate

discipline.

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
4

be

disciplined

for

completely nebulous offense.

4

(C. at 18-23).

The charge hostile work environment stemmed from a complaint lodged on September 29, 2010 by a recentlyappointed co-worker (Ms. Cooper), who said Ward was not pulling her fair share. (Vol. 6 at 272, 479-480, 517). Patton took Ward out of service, directing the Citys Personnel Director Peggy Polk to conduct an investigation. (Vol. 6 at 481-483, 506). Polk was never given a copy of Morant-Adams September 29, 2010 letter to Operations Chief Jarvis Patton regarding appointee 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. The term was selected after Ward earlier grievance previously filed with the Personnel Board. (Vol. 6 at 165-167, 469-470, 537-538). On October 1, 2010, Polk sustained a charge of uncomfortable work environment after 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).
10

The Personnel Board, while not disturbing the factual findings of the to hearing officer, Ward and rejected his a

recommendation

terminate

instead

imposed

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 Birmingham, limited. 187 Templin 230 v. City Commission purposes of of

So.2d

(Ala.1966)(for

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
11

province

of

the

agency.

Thus, appellate review in this appeal is limited to (1) proper application Boards of relevant is law and (2) by whether any the

Personnel

ruling

supported

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). mere scintilla of Substantial evidence evidence but can is be more less than than a a

preponderance of the evidence. Freman v. City of Mobile, 590 So.2d 331 (Ala.Civ.App.1991). If there is substantial evidence the may to trial not support court the must its

Personnel affirm its

Boards

determination, The court

decision.

substitute

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 that 698 [i]f (Ala.Civ.App.1989). judicial
12

The is

court

has

recognized

review

ultimately

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 did Record not at 10.) any And in Pierson, of fact the or

Personnel

Board

issue

findings

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
13

the January 10, 2012 Personnel Board decision that modified only one aspect of the hearing officers to a report: Ward. of the In the

hearing Ward,

officers the appeal

recommendation record

terminate

included

transcript

proceedings of January 10, 2012, during which the Personnel Board deliberated As and voted in to reduce the level of

punishment. officers

revealed and

the

transcript, were

the

hearing during

findings

conclusions

discussed

these deliberations. (see abbreviated transcript, C. at 74). Appellant submits that the remand order of the threejudge 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 signed by two of the three members of the Board which simply stated that the report and recommendation of the Hearing Officer, Roger Brown was reversed and that Ms. Ward be reinstated to her position effective January 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
14

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. appeal) reverse performed set his

The Personnel Board did not (as in the Pierson aside the report In of Ward, the hearing officer or Board this

findings.5 its

the

Personnel in

fully

quasi-judicial

function

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). of the record, yet the The transcript was made part ignored the reasoning

court

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 Act No. 248, Sec. 22, requires that the Board [within a 45day period] must both consider and modify, alter, set aside or affirm the hearing officers report.
5

15

City

and

Ward the

regarding City for

work its

performance. failure to

The

Chairman its own

criticized

follow

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 By Ward called for vote, a vote City day on an alternate ordered to

punishment. reinstate

majority the next

the

was to

business

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
16

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 The to reject stepped the in hearing and officers the

recommendation.

court

ignored

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
17

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. 4455). 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
18

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 of and County, the 440 agency The So.2d 1106, 1109 (the special to its the

competence reasoning

lends Court

great is

weight to

decision).

not

judge

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 Personnel recommended Board by the hearing a officer. penalty The by

nonetheless

imposed

severe

denying Ward any back pay. (C. at 51.) An appeal of this nature
19

is

limited

to

the

record

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 up to of its the Personnel to

Boards

deliberations

leading

decision

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 considered by the Personnel Board. of fact were

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). of The the Personnel hearing Board officer. did (C. not at disturb 18-23). the The

findings

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

20

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.) of aware Economic of the and

3.

Tracy

Morant-Adams, Office of

the

Director was

Development Citys

since

20086

policy

progressive

discipline

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.)

Tracy Morant-Adams, an appointed employee, serves at the pleasure of the Citys Mayor. The City has not sought to appoint Mrs. Morant-Adams to an Executive Service appointment under the Jefferson County Personnel Board. (Vol. 3: Complainant Exhibit 23; Vol. 6 at 468, 174.)
6

21

Moreover, Morant-Adams admitted that she did not give Ward any written reprimands during these years. at 22).
7.

(C.

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-Adams conceded 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 that of these these about meetings. meetings Wards (Id.) she Adams not or

testified convey

during

did

any

concerns

productivity

working relationships at the office. (Id.)

22

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. 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 received Personnel written Board reviewed from the hearing record, heard The charge against Ward was reduced

objections

the

parties,

and

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

23

presented failure

at in

that

time

any

other

deficiencies a

(such

as

production,

creating

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 giving would rise to also the logically charges conclude in that the events 8, 2010

alleged

October

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 (coincidentally sent 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. For a period of time Mrs. Ward was on approved medical leave, working a half-day schedule (May 10 through July 15, 2010.) (Vol. 6 at 284).
7

24

(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 At that time,

came with the charge on October 8, 2010.

Ward was on administrative leave pending an investigation of hostile work environment. Indeed, the hearing officer The City tries to claim that Ward was placed on a performance improvement plan following her return from leave in July 2009. (Vol. 6 at 364-365). The City admitted that plans of this nature were not formal, were not signed by the parties, or filed with the Personnel Board. (Id. at 40). Mrs. Morant-Adams testified that she met with Mrs. Polk in June 2009 to discuss such a plan while Ward was on leave. (Vol. 2: Respondent Exhibit 3 & 18; Vol. 6 at 82-84). Adams claimed that she met with Ward 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 such a plan. ( Vol. 2: Respondent Exhibit 2). The City tries to claim that it reinstituted this improvement plan in May 2010. Adams admits no signed plans exist. (Vol. 6 at 367.) No mention of such plans are found in any of Mrs. Morant-Adams meetings notes for June 7, June 21, and August 5, 2010. (Vol. 3: Complainant Exhibits respectively 12, 15 & 16).
8

25

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 violated its policy of progressive discipline.

City

26

The hearing officer recognized that Ward, a fifteen year merit employee, had never been disciplined prior to April 2010. on which As the record reflects, Morant-Adams served as was 6 at appointed 172, by Birmingham Jarvis E. Mayor Patton Wards direct supervisor since February 28, 2008, the date Morant-Adams (Vol. Larry Langford. 316).

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 Both over and the Office of are Economic contract Development. Patton Morant-Adams

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 is also troublesome because the Citys supervisors were aware of their obligations in this regard. (Id. At 22). Adams
9

Morant-

communicated

her

plans

to

engage

the

disciplinary

process but did not share her concern with Ward.9 (Vol. 6 at The only e-mail correspondence regarding possible disciplinary action was sent on April 15, 2010. MorantAdams informed Operations Chief Patton that she was aware specific/defined steps must be taken to engage the disciplinary process. She further recognized that JCPB rules pertaining to discipline must be followed or we run the risk of our action being overturned by the Personnel Board. (Vol. 3: Respondent Exhibit 20, Adams e-mail to Patton on April 15, 2010). Shortly thereafter, Adams met with the Citys Personnel Director Peggy Polk to discuss a disciplinary action against Mrs. Ward. (Vol. 6 at 229-231).
27

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 175-176). 3. Morant-Adams pursuant to never conducted an evaluation Board of of Ward 14.3 Jefferson County Personnel the Rule by her supervisor Tracey Morant-Adams, the Director of the Office of Economic Development. (Vol. 6 at

Efficiency Rating Plan. 4. Morant-Adams

(Vol. 6 at 177-178). that City Birmingham

testified

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 disciplinary action. (Vol. 6: 229-230). Ward was reprimanded on April 28, 2010 and given a three-day suspension. (Vol. 3: Respondent Exhibit 5).
28

5.

The first disciplinary charge against Ward came on was held on April 29, 2010. (Vol. 3:

April 28, 2010. The determination hearing on this first disciplinary 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. to Birmingham charges; claiming 6. Ward was also charged with not reporting Industry 8, Authority, a private at 2, Construction

enterprise, (BCIA) as directed. (Vol. 3: Respondent 5, Respondent that Exhibit Wards rebuttal her to Morant-Adams admitted was had at not instructed the lower Wards written her

visibility at BCIA until after the election cycle.). Morant-Adams or hearing by on that any three-day reprimands performance. suspension preceded

written

recommendation

improving

(Vol. 6 at 229-230). (Vol. 6 at 30210

7. Morant-Adams testified that Ms. Ward was never again charged with these specific infractions. 303). Ward maintained her Outlook calendar and as of June 7, 2010 was no longer required to work at BCIA. (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 halfday 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 Adams confirmed in her meeting notes with Ward that as Director she wanted to close the loop on the BCIAs need for a liaison from this Office..
10

29

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 testimony issues of Ward giving at rise 865; to Vol. her 3; termination. (Vol. 6 at 230, 373, 375-376 (testimony of Morant-Adams); 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. improvement plan). 10. Ward was placed on administrative leave on September 29, to 2010 failure pending to an investigation in the of hostile placing work on environment. (Vol. 6 at 256-258.) There was no reference produce notice Ward 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 to the September 10, 2010 letter he composed. (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

(The recordings of

these four meetings reveal no mention of a performance

(Vol. 6 at 257-

258). She did not inform Ward of this contemplated action.

(Vol. 2: Respondent Exhibit 6).

E. Substantial evidence supports a finding relating to Wards adjusted schedule under the Family Medical Leave Act. An audio recording of the hearing reveals that there was no mention of a performance improvement plan. (Vol. 3: Complainant Exhibit 20).
11

30

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, 297280). 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 Monthly condition. Status (Vol. 2: Respondent to Exhibit Woodlawn 24, Ward

Report

pertaining

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. 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
31

(Vol. 6 at 286 &

and leaving work and she expressed concern that Ward was getting a full-day pay but not staying all day. 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 (Vol. 6 at

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
13

Department

regarding

her

half-day FMLA approved schedule.

12

During an interview with the IAD on June 21, 2010, Adams reported her concerns that Ward was getting a full days pay while leaving work at noon. (Vol. 6 at 277). Coworkers did not know that Mrs. Ward was on FMLA: Andrew Mayo (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 Wards grievances. (Vol. 6 at 380-381, 571). Adams responded to both grievances. (Vol. 6 at 380-381); see Respondent Exhibit 19, page 1 for Adams general denial of grievance). (Jefferson County Personnel Board records reflect that the May 2010 grievance was ruled untimely and that the June 2010 grievance was eligible for adjustment; Vol.2:
32

F. Substantial evidence exists to support finding that Morant-Adams did not inform Ward of any work deficiencies during individual conferences in the months leading up to her termination. The sole written 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).

33

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 373376). She also conceded that Ward could not possibly

achieve a full days work while on her approved FMLA halfday schedule. 3. During (Id. at 286). a meeting for her on June 21, 2010, Morant-Adams a grant

commended

Ward

creativity

regarding

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). individual At the close with of this Ward invited
34

meeting, held Ward

(the to

final her her

meeting

prior to

termination),

Morant-Adams

present

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
35

was

not

arbitrary

or

capricious. within its

Modification purview and

of was

the

level

of

punishment the

is

justified

under

factual

circumstances. In light of foregoing the January 10, 2012 decision of the Personnel Board is due to be affirmed. Court is due to be reversed. ___________________________ Gayle Gear Attorney for Felicia Ward CERTIFICATE OF SERVICE I hereby certify that on this the ., I mailed the foregoing 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). The Circuit

36

37