AlaFile E-Notice

01-CV-2012-000078.00 To: GEAR GAYLE HAYWOOD ghgear@bellsouth.net

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA CITY OF BIRMINGHAM VS THE PERSONNEL BOARD OF JEFFERSON COUNTY ET AL 01-CV-2012-000078.00 The following 12 was FILED on 4/10/2012 4:37:56 PM

Notice Date:

4/10/2012 4:37:56 PM

ANNE-MARIE ADAMS CIRCUIT COURT CLERK JEFFERSON COUNTY, ALABAMA JEFFERSON COUNTY, ALABAMA BIRMINGHAM, AL 35203 205-325-5355 anne-marie.adams@alacourt.gov

ELECTRONICALLY FILED 4/10/2012 4:37 PM CV-2012-000078.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA BIRMINGHAM DIVISION FELICIA WARD, PLAINTIFF/Appellant, v. THE CITY OF BIRMINGHAM, OFFICE OF ECONOMIC DEVELOPMENT and THE JEFFERSON COUNTY PERSONNEL BOARD, DEFENDANTS/Appellees. ) ) ) ) ) ) ) ) ) ) )

Civil Action No.: CV2012-00078 CV2012-00065

THE PERSONNEL BOARD OF JEFFERSON COUNTYS RESPONSE TO THE APPEAL FILED BY THE CITY OF BIRMINGHAM, OFFICE OF ECONOMIC DEVELOPMENT COMES NOW the Personnel Board of Jefferson County (Personnel Board) by and through its undersigned counsel in response to the City of Birmingham (the City) Office of Economic Developments Appeal of the Decision of the Personnel Board dated January 10, 2012 in which the Personnel Board ordered that Appellant Felicia Ward (hereinafter referred to as Ms. Ward) be reinstated to her position effective January 11, 2010. R13. I. STATEMENT OF FACTS MATERIAL TO THE PERSONNEL BOARDS DECISION MS. WARD SHOULD BE REINSTATED. 1. The Office of Economic Development (OED) is a division of the Mayors

Office. The head of that department, Director Tracy Adams (Ms. Adams), supervises seven (7) employees. T73.1 2. When Mayor William Bell (Mayor Bell) took office in January 2010 he asked

for an assessment of the OED. T75-76.

1

References to the Transcript of the testimony given before the Hearing Officer, which is part of the Record of Appeal, will be referenced as T plus the page number(s).

3.

When Ms. Adams became the Director of the OED in February of 2008 she was

concerned Ms. Wards work productivity and her whereabouts. She testified that Ms. Ward would appear at the office at 8:00 a.m. and be gone by 11:00 or 11:30 a.m. and rarely returned to the office. T77. 4. Ms. Adams testified although Ms. Ward said she was out at meetings related to

her job with the OED, she did not turn in any expenses for mileage for travel to the meetings or produce evidence of her attendance at those meetings. This pattern of behavior got worse throughout 2008 and 2009. T77-81. 5. In July 2009, Ms. Adams met with Ms. Ward to discuss an improvement plan she

developed along with Peggy Polk (Ms. Polk), Director of Personnel for the City of Birmingham (the City). T82-84. 6. During discussions of that improvement plan, Ms. Ward expressed her desire to

work with the Birmingham Construction Industry Association (BCIA). It was agreed that she would work at the BCIA two days a week, Tuesday and Thursday, and report to its Executive Director of BCIA, Michael Bell (Mr. Bell). T84-87. 7. Ms. Adams met with Ms. Ward during the months of January through April 2010.

Her work productivity did not improve. T94-95. 8. Her status reports showed that Ms. Ward was not attending association meetings

and was providing no benefit to the OED. T96-98. 9. In April 2010, the Chief of Operations, Jarvis Patton (Mr. Patton), told Ms.

Adams that Ms. Ward had not been to BCIA since October of 2009, even though her Outlook calendar showed she was there. T105.

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10.

Ms. Adams confirmed with Mr. Bell that Ms. Ward had not been to BCIA since

October of 2009. T106-108. 11. Ms. Ward was suspended for three (3) days as a result of her failure to follow the

directive to go to BCIA and to follow office protocol regarding her Outlook calendar. T106-108, T128. 12. Following her three (3) day suspension, Ms. Ward met with Ms. Adams on May

12, 2010 and Ms. Adams went over what she expected from Ms. Ward with respect to reporting, monthly summaries, meeting with Ms. Adams and meeting with businesses outside of the office, as well as her work at the BCIA on Tuesdays and Thursdays. T130-135. See also,

Complainants Exhibit 20 in the Record on Appeal, the Recording of the May 12, 2010 meeting. 13. Ms. Adams testified that between May and June of 2010 she saw no improvement

or progress in Ms. Wards work. She did send out letters but she did not schedule any follow-up meetings with the businesses which received the letters. T143-144. 14. On August 5, 2010, when Ms. Adams met with Ms. Ward again she pointed out

there were no notations in Outlook of meetings with businesses from a list she had provided to Ms. Ward. There was no proof of meetings with other businesses. Ms. Ward had also failed to let Ms. Adams know when she was going to be out of the office. T145-148, T340-341. See also, Complainants Exhibit 20 to the Record on Appeal, the Recording of the August 5, 2010 meeting. 15. Between June and August 2010 Ms. Ward showed no evidence of work except a

cut and pasted email about a grant. T342-343.

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16.

At no time during any of the meetings with Ms. Ward in May through August of

2010 did Ms. Adams inform Ms. Ward that continued failure to complete the directives discussed in their meetings would result in further suspension and/or possible termination. 17. Ms. Adams testified that Ms. Ward was on medical leave for six weeks in the year

2009 and she was allowed to work half days from mid-May to mid-July in 2010 because of medical reasons. T869-871. 18. Mr. Patton testified that a co-worker of Ms. Ward, Lisa Cooper (Ms. Cooper),

came to his office to ask for a transfer. Ms. Cooper said Ms. Ward created a hostile work environment in the OED. T405. 19. Mr. Patton asked Ms. Polk to investigate the allegation of hostile work

environment by Ms. Cooper. T406. 20. In September 2010, Ms. Polk began an investigation and interviewed employees

of the OED. T440-444. 21. Ms. Polk testified her investigation of a hostile work environment at the OED was

not limited to Ms. Ward. T544. 22. According to Ms. Cooper, Ms. Wards presence in the office, or lack thereof,

effected productivity and caused stress in the office. T441-444. 23. 24. Ms. Cooper told Ms. Polk that Ms. Ward bullied JoAnn Latino. T446. Angela Williams told Ms. Polk she heard Ms. Ward make the disrespectful

comment tick tock related to Ms. Wards assumption Ms. Adams would be fired when Mayor Bell took office. T448. 25. Andrew Mayo told Ms. Polk that Ms. Ward never did anything and was a cancer

in the department. T449-450.

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26.

Ms. Polk testified that Ms. Wards medical leave when she worked only half days

was over by July 15, 2010. T544. 27. Ms. Polk testified that the result of her investigation showed Ms. Ward added

nothing of value to the OED. T537-550. 28. Ms. Polk testified she attended the improvement meetings Ms. Adams had with

Ms. Ward. She said Ms. Ward either didnt get it or wasnt interested. T438-440. 29. Mr. Bell testified that after October of 2009 he never saw Ms. Ward at the BCIA

again. T593-594. 30. T639. 31. Mr. Mayo testified that Ms. Ward never contributed anything to the team. He Andrew Mayo (Mr. Mayo) testified he had been with the OED for 21 years.

also testified there was no evidence that she did any work. She arrived at 7:30 a.m. and was gone by 9:30 a.m. She only occasionally returned to the office. T649-651. 32. Angela Williams testified Ms. Ward would appear at work by 8:00 a.m. and was

gone by 11:00 a.m. She rarely saw Ms. Ward return to the office. T690-691. 33. Ms. Cooper testified that Ms. Ward, whose office is directly across from hers and

had glass walls, was in early and gone by 10:00 a.m. T736-741. 34. On October 13, 2010 the City served Ms. Ward with a Notice of Determination.

In it the City advised Ms. Ward as follows: 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 Citys Personnel Office. The notice goes on to advise Ms. Ward that a Determination Hearing will be held on October 18, 2010. R96.

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35.

Complainants Exhibit 20 contains a recording of the determination hearing held

on October 18, 2010. The determination hearing was attended by Mr. Patton, Ms. Adams, Ms. Ward and Ms. Wards attorney, Gayle Gear.2 The recording, while not the best quality, proves Ms. Ward was presented with the charges and given the opportunity to address them. According to the Complaint and Notice of Appeal filed by Ms. Ward in this matter, She attended the October 18, 2010 hearing and filed a rebuttal to the charges. R11 at p.4. 36. Ms. Ward was served with a decision upon the Determination Hearing dated

October 21, 2010 advising her employment with the City was terminated. R93. 37. R95. 38. Ms. Wards appeal was heard by Hearing Officer, Roger A. Brown, over the Ms. Ward appealed her termination to the Personnel Board on October 22, 2010.

course of four (4) days. The Transcript of the hearings contained in the Record on Appeal. 39. The Hearing Officer issued a Report and Recommendation dated December 21,

2011. It is referred to in the Record on Appeal as the Corrected Report and Recommendation. R15. 40. In his report the Hearing Officer made the following findings which are relevant

to the Citys appeal: a. Also disregarded is the charge of creat(ing) a hostile work environment. Neither document nor witness defines the meaning of hostile work environment. completely nebulous offense. b. Acknowledging that it is necessary to examine the actions of Adams in counseling Ward. As Wards attorney aptly points out: Mrs. Adams never
2

Ward should not be disciplined for a

If other individuals were present, they are not identifiable from the recording.

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conducted an evaluation of Ms. Ward pursuant to Jefferson County Board Rule 14.3 Efficiency Rating Plan (Page 8-9, June 17, 2011, Adams Crossexamination).3 c. Mrs. Adams testified that the City of Birmingham adheres to a policy of progressive discipline. (Page 8, June 17, 2011 Adams Cross-examination). d. She further testified that she knew how to discipline employees and recognize the importance of pointing out deficiencies immediately so that corrective action could be taken. (Id. At pages 23-24,44). e. On April 15, 2010, in an email to Operations Chief Patton, Adams informed Patton that she recognized that 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. (Respondent Exhibit 20, Adams e-mail to Patton on April 15, 2010). f. After Wards three-day suspension, Ms. Adams testified that she held four individual meetings with Ms. Ward in 2010: May 12, June 7, June 21, and the last on August 5, 2010. Adams reviewed the audio tapes of these meetings prior to the appeal hearing before the JCPB. (Page 34-38, June 17, 2011 Adams Cross-examination; 55-57, July 21, 2011, Adams Crossexamination; Respondent Exhibit 14). g. Ms. Adams conceded that during these individual meetings, she did not convey any concerns about Wards productivity or working relationship at the office. (Pages 84).
3

It appears the Hearing Officer cut and pasted from Ms. Wards Post-Trial Brief.

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h.

A merit system employee has a property right in continued employment which can be terminated only for cause and following a hearing which affords the employee due process. See Cleveland Board of Education v. Loudermill, 470 U.S. 532.

i.

But, Ward did have a hearing on written charges conducted in accord with due process.

41. R14. 42.

Ms. Ward filed objections to the Hearing Officers Report and Recommendation.

In an open hearing before the Personnel Board on January 10, 2012, counsel for

Ms. Ward and counsel for the City were allowed to present arguments for and against the Report and Recommendation of the Hearing Officer, who recommended the charge of unproductivity be sustained and the termination upheld. 43. After a lengthy discussion the Personnel Board issued an Order dated January 10,

2012 in which it modified the Report and Recommendation of the Hearing Officer and stated that the Report and Recommendation is reversed and Respondent Ward will be reinstated to her position effective January 11, 2012. Respondent Ward shall not be entitled to back pay. The Order is signed by two (2) of the three (3) board members. R13. 44. 2012. R11. II. STANDARD OF REVIEW. Substantial evidence must support the Personnel Boards decision following a disciplinary hearing of an employee in the Classified Service. See the Enabling Act 22 as amended by Alabama Acts 1977. Act No. 684; Rules and Regulations of the Personnel Board, Ms. Ward filed her Complaint and Notice of Appeal to this Court on January 18,

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Rule 12.13; Ex parte Personnel Board of Jefferson County v. Whitlow, 648 So. 2d 593, 594 (Ala. Civ. App. 1994). The dispositive issue is whether there was substantial evidence to support the decision. Substantial evidence is relevant evidence that a reasonable mind would view a sufficient to support the determination. Id. See also Ex parte Cooper Green Hosp., 519 So. 2d 1352, 1354 (Ala. Civ. App. 1987). Substantial evidence exists in the administrative law context if there is a rational basis for the conclusions approved by the administrative body. City of Mobile v. Seals, 471 So. 2d 431, 434 (Ala. Civ. App. 1985). The scope of appellate review of administrative actions is narrow; therefore, [t]he determination of the weight and credibility of the evidence presented is solely within the province of the board. Ex parte Personnel Board of Jefferson, 40 So.2d 106, 109 (Ala. Civ. App. 1983). See also, Ex parte Dixon, 841 So.2d 1273, 1278 (Ala. Civ. App. 2002). II. ARGUMENT. A. The City Failed To Follow Its Progressive Discipline Policy.

There is no question Ms. Adams met with Ms. Ward on at least four (4) occasions after her April 2010 suspension. There were discussions about her job, ways of improving her job, lists she should acquaint herself with, meetings she should attend, appointments she should calendar, letters she should write, summaries she should prepare grant proposals she should summarize, reports she should prepare, and any number of things Ms. Adams and Ms. Polk, and on at least one or two occasions Mr. Patton, suggested to Ms. Ward as a means of improving her job performance. There are also comments in at least one (1) of the recorded meetings which are contained in Complainants Exhibit 20 about getting Ms. Ward back on track. It is not unreasonable to expect a fifteen (15) year employee of the OED would already

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know how to do her job and that these improvement meetings should have, at a minimum, raised a red flag with Ms. Ward indicating her supervisor and others in the City felt that she needed significant supervision in order to ensure Ms. Ward was doing what she was supposed to do, such as appearing at meetings she was supposed to attend, calendaring her scheduled appointments, being accountable and productive. However, during none of the four(4) meetings did Ms. Adams ever advise Ms. Ward that if she did not make significant improvements or if she failed to do the things they were discussing in the improvement meetings that her job would be in jeopardy.4 One can only assume that Ms. Adams thought it was obvious to Ms. Ward why the meetings were taking place. Significantly, there were no meetings with Ms. Ward between August 5, 2010 and September of 2010 Ms. Cooper reported to Mr. Patton that she wanted to transfer from the OED because of the hostile work environment created by Ms. Ward. Further, it appears the complaint by Ms. Cooper which resulted in the investigation by Ms. Polk may have infact been the straw that broke the camels back. Ms. Wards termination followed fairly quickly thereafter. She was served with a Notice of Determination. R96. She was given a hearing. R11 at p. 4. She was allowed to rebut the charges. Therefore, from a procedural standpoint, she was given Loudermill due process. However, there is no evidence she was given progressive discipline, which is the policy of the City. As a result, the Personnel Board, having disregarded as the Hearing Officer said the nebulous allegation of a hostile work environment, decided the City certainly had good reason to terminate Ms. Wards employment, but the City did not follow their own policies and procedures in doing so.
4

The City made reference to the fact that on at least one occasion, Ms. Ward appeared at a meeting with Ms. Polk and Ms. Adams accompanied by a City Employees Association representative. The City further speculates as to why the representative was there. What the City does not explain is why neither Ms. Polk nor Ms. Adams asked Ms. Ward why the representative was with her. Her answer to that question might have put them on notice that Ms. Ward did, or did not, know the meetings were intended as progressive discipline at the City contends.
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The City has recounted numerous instances of Ms. Wards incompetence, her failure or refusal to comply with the directives of her supervisory conduct unbecoming and misconduct. Unfortunately, in this case, the Citys cordial attempts to get Ms. Ward to change her behavior were ineffective. Despite Ms. Wards productivity continued to be de minimis after her threeday suspension, the City never advised her additional discipline, up to and including termination, would result from her failure or refusal to improve. B. The Personnel Boards Decision is Not Arbitrary and Capricious.

Rule 12.6 of the Personnel Boards Rules and Regulations states as follows: The Board shall consider the Hearing Officers Report and Recommendation, and modify, alter, set aside or affirm said report and certify its findings to the Appoint Authority who shall forthwith put the same into effect. As this Court is well aware The Personnel Board is given substantial deference in determining its own rules. See Mobile County Personnel Board v. Tillman, 751 So. 2d 517 (Ala. Civ. App. 1999); Ferlisi v. Alabama Medicaid Agency, 481 So. 2d 400 (Ala. Civ. App. 1985). The Personnel Boards decision properly applies the relevant law and is supported by substantial and legal evidence. While this Court may review the decision of the Personnel Board, if the Personnel Board has reasonable justification for its determination or bases its decision upon adequate principals or fixed standards so that its decision is not arbitrary or capricious this Court must affirm the Personnel Boards decision. See Personnel Board v. King, 456 So. 2d 80 (Ala. Civ. App. 1984); Thompson 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). The Personnel Board relied on the Record before it in the case of Plaintiff and this Court is limited to the examination of the Record made before the Personnel Board. Adair v. Personnel

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Board of Jefferson County, 600 So. 2d 318, 319 (Ala. Civ. App. 1992) and Williams v. Mobile County Personnel Board, 307 So. 2d 268, 269 (Ala. Civ. App. 1992). The narrow scope of appellate review of this Court is in keeping with the general principles underlying certain import doctrines and administrative law which come into play when judicial review of administrative action is involved. See General Lee Fraternal Order of Police, Strawberry Lodge No. 40 v. Entrekin 294 Ala. 201, 314 So. 2d 663 (1975) (exhaustion of primary jurisdiction doctrines). See also Ex parte Personnel Board of Jefferson County, 440 So. 2d 1106, 1109 (Ala. Civ. App. 1983). IV. CONCLUSION. The Personnel Board, having reviewed all of the evidence, as well as the post-hearing filings of the parties, ruled that the charge of nonproductivity over a long period of time was justified by the City, but the termination of Ms. Wards employment with the City was defective because she was not given progressive discipline. The Personnel Board felt that Ms. Wards employer, the City, should be held to as high a standard as Ms. Ward in doing their job. The Personnel Board felt the City should have done a better job of progressively disciplining Ms. Ward for her poor work ethic and nonproductivity. The Personnel Board ruled Ms. Ward should not receive back pay because the Hearing Officer found that the City was justified in disciplining Ms. Ward for her failure to do her job. However, the Personnel Board ordered that Ms. Ward be reinstated because her termination did not follow the Citys own rules concerning progressive discipline. This Court cannot supersede the Personnel Boards decision unless it was against the substantive evidence before the Personnel Board when it rendered its decision. The Court should deny the Citys appeal of the decision of the Personnel Board and affirm the decision of the Personnel Board that Ms. Ward be reinstated.

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Respectfully submitted, /s/ Laura C. Nettles Laura C. Nettles (NET006) Attorney for Defendant, Personnel Board of Jefferson County

OF COUNSEL: LLOYD, GRAY , WHITEHEAD & MONROE, P.C. 2501 20th Place South, Suite 300 Birmingham, Alabama 35223 (205) 967-8822 - Telephone (205) 967-2380 Facsimile lnettles@lgwmlaw.com

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CERTIFICATE OF SERVICE I hereby certify that on April 10, 2012, I electronically filed the foregoing with the Clerk of Court using the AlaFile system which will send notification of such filing to the following: Fredric Fullerton Steven Stine City of Birmingham Department of Law 600 City Hall Building 710 North 20th Street Birmingham, Alabama 35203 Gayle H. Gear, Esq. 2229 Morris Avenue Suite B Birmingham, Alabama 35203 Michael K.K. Choy Elizabeth Shirley Burr & Forman, LLP 420 N. 20th Street Suite 3400 Birmingham, Alabama 35203 Brett Adair 2201 Arlington Avenue Birmingham, Alabama 35205 /s/ Laura C. Nettles OF COUNSEL

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