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AlaFile E-Notice
To: GEAR GAYLE HAYWOOD
01-CV-2012-000078.00
NOTICE OF ELECTRONIC FILING
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
The following 12 was FILED on 4/10/2012 4:37:56 PM
CITY OF BIRMINGHAM VS THE PERSONNEL BOARD OF JEFFERSON COUNTY ET AL
01-CV-2012-000078.00
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
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.
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Civil Action No.: CV2012-00078
CV2012-00065
THE PERSONNEL BOARD OF JEFFERSON COUNTY’S 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 Development’s 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 BOARD’S
DECISION MS. WARD SHOULD BE REINSTATED.
1. The Office of Economic Development (“OED”) is a division of the Mayor’s
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).
ELECTRONICALLY FILED4/10/2012 4:37 PM
CV-2012-000078.00CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMAANNE-MARIE ADAMS, CLERK
1465747_1 2
3. When Ms. Adams became the Director of the OED in February of 2008 she was
concerned Ms. Ward’s 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,
Complainant’s 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. Ward’s 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,
Complainant’s 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.
1465747_1 4
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. Ward’s presence in the office, or lack thereof,
effected productivity and caused stress in the office. T441-444.
23. Ms. Cooper told Ms. Polk that Ms. Ward bullied JoAnn Latino. T446.
24. Angela Williams told Ms. Polk she heard Ms. Ward make the disrespectful
comment “tick tock” related to Ms. Ward’s 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.
1465747_1 5
26. Ms. Polk testified that Ms. Ward’s 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 didn’t get it or wasn’t interested. T438-440.
29. Mr. Bell testified that after October of 2009 he never saw Ms. Ward at the BCIA
again. T593-594.
30. Andrew Mayo (“Mr. Mayo”) testified he had been with the OED for 21 years.
T639.
31. Mr. Mayo testified that Ms. Ward never contributed anything to the team. He
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 City’s Personnel Office.” The notice goes
on to advise Ms. Ward that a Determination Hearing will be held on October 18, 2010. R96.
1465747_1 6
35. Complainant’s 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. Ward’s 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. Ms. Ward appealed her termination to the Personnel Board on October 22, 2010.
R95.
38. Ms. Ward’s appeal was heard by Hearing Officer, Roger A. Brown, over the
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 City’s 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. Ward should not be disciplined for a
completely nebulous “offense.”
b. Acknowledging that it is necessary to examine the actions of Adams in
counseling Ward. As Ward’s attorney aptly points out: Mrs. Adams never
2 If other individuals were present, they are not identifiable from the recording.
1465747_1 7
conducted an evaluation of Ms. Ward pursuant to Jefferson County Board
Rule 14.3 Efficiency Rating Plan (Page 8-9, June 17, 2011, Adams Cross-
examination).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 Ward’s 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 Cross-
examination; Respondent Exhibit 14).
g. Ms. Adams conceded that during these individual meetings, she did not
convey any concerns about Ward’s productivity or working relationship at
the office. (Pages 84).
3 It appears the Hearing Officer cut and pasted from Ms. Ward’s Post-Trial Brief.
1465747_1 8
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. Ms. Ward filed objections to the Hearing Officer’s Report and Recommendation.
R14.
42. 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. Ms. Ward filed her Complaint and Notice of Appeal to this Court on January 18,
2012. R11.
II. STANDARD OF REVIEW.
Substantial evidence must support the Personnel Board’s 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,
1465747_1 9
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 It’s 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 Complainant’s 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
1465747_1 10
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 camel’s back. Ms. Ward’s 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. Ward’s 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 Employee’s 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.
1465747_1 11
The City has recounted numerous instances of Ms. Ward’s incompetence, her failure or
refusal to comply with the directives of her supervisory conduct unbecoming and misconduct.
Unfortunately, in this case, the City’s “cordial” attempts to get Ms. Ward to change her behavior
were ineffective. Despite Ms. Ward’s productivity continued to be de minimis after her three-
day 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 Board’s Decision is Not Arbitrary and Capricious.
Rule 12.6 of the Personnel Board’s Rules and Regulations states as follows:
“The Board shall consider the Hearing Officer’s 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 Board’s 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 Board’s 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
1465747_1 12
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. Ward’s employment with the City was defective
because she was not given progressive discipline. The Personnel Board felt that Ms. Ward’s
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 City’s own rules concerning progressive
discipline. This Court cannot supersede the Personnel Board’s decision unless it was against the
substantive evidence before the Personnel Board when it rendered its decision.
The Court should deny the City’s appeal of the decision of the Personnel Board and
affirm the decision of the Personnel Board that Ms. Ward be reinstated.
1465747_1 13
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
1465747_1 14
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
