IN THE CIRCUIT COURT OF JEFFFERSON COUNTY, ALABAMA FELICIA WARD, Plaintiff, CITY OF BIRMINGHAM, OFFICE OF ECONOMIC DEVELOPMENT AND

JEFFERSON COUNTY PERSONNEL BOARD. Defendants. ) ) ) ) ) ) ) ) ) ) ) CV-2012-0065 CV-2012-0078

RESPONSE IN OPPOSITION TO JCPB REVERSAL OF ITS DECISION TO REINSTATE WARD AND MOTION TO STRIKE Brief Background of Proceedings On October 21, 2010, the City of Birmingham (City) imposed on Mrs. Felecia Ward the most severe disciplinary action that can be taken against a classified employee under the protections of the Jefferson County Personnel Board (the Personnel Board). Felicia Ward filed an appeal to the Jefferson County Personnel Board. (Personnel Board) Following the submission of the hearing officer report filed on December 23, 2011, 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. (Vol. 1: R. 13 at 1). The Board REJECTED the termination of Felicia Ward, who had never been disciplined in her fifteen-year career until April 2010 (three-day suspension). The Board specifically rejected the hearing officers recommendation that Wards termination be affirmed. The Personnel Board rejected the Citys harsh penalty because there was a lack of evaluations, written or
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verbal warnings. The Board rejected the hearing officers form over substance reasoning. The Board examined the record evidence as such pertained to the sole allegation considered by the hearing officer: failure of production. Cross appeals followed and the matter was heard by a three-judge panel. On April 17, 2012, the circuit court reversed and remanded to the Jefferson County Personnel Board for the purpose of supplying a finding of fact to support its decision of January 10, 2012. Upon compliance with this Order, the Circuit Court stated that the matter shall be taken under submission by the assigned three-judge panel. On June 12, 2012 the Jefferson County Personnel Board filed what purports to be a response to this Courts Order. Ward submits the Personnel Board has not complied with the Courts order and instead has filed a new and quite different Order. The Personnel Board apparently seeks to substitute new factual findings, while ignoring the findings of its hearing officer in an attempt to reverse course and affirm Wards termination. At 3:47 p.m. on June 12, 2012, the Personnel Board Order was e-mailed to counsel of record. Within the hour, Ms. Ward was once again escorted from her office by uniformed police officers at the direction of two City lawyers and Jarvis Patton. Ward files herewith the following objections to the actions of the Personnel Board and the City of Birmingham in response to that Order. Ward submits that the Personnel Boards Order cannot supersede or trump a Circuit Court Order that clearly states that the matter shall be taken under submission after the Personnel Board submits findings of fact to support its earlier final decision.

Ward further submits that the Personnel Board cannot reinstate the allegation of hostile work environment that had been dismissed (and not entertained) by the hearing officer.
1.

The confusion of the Personnel Board as a claim basis for reversing its decision is without merit.

The Personnel Board tries to claim that Wards counsel misinformed its board members (and apparently the hearing officer) as such pertains to Ms. Adams testimony. Counsel for Ms. Ward furnished to the hearing officer transcripts of Adams and Polks cross-examination testimony, hence transcript references are noted in the hearing officers report. The Personnel Board surely saw specific references to transcript testimony in the hearing officer report and should have known that a transcript existed. (These transcripts were sent by Wards counsel to the Employee Relations Division at the time Wards objections were filed of record before the Personnel Board.) Ward submits that the transcript of Adams testimony proves Wards contention that the individual meetings with Adams were in fact status meetings (not performance improvement meetings of a disciplinary nature) similar to those held with other personnel in the Office of Economic Development. The City is correct that the May 12, 2010 meeting did address Wards recent three-day suspension and suggestions for improvement. Adams testified that Ward remedied these items (Outlook and BCIA). The May 2010 suspension was the only suspension and only written write-up in Wards 15 year career with the City until her termination in October 2010. The record is clear: 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 Wards termination. (Vol. 6 at 230, 373, 375-376 (testimony of Morant-Adams);
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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. 4. The audio recording of the August
5th

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 Mrs. Ward held prior to her termination), Adams invited Mrs. Ward to present her ideas at the Economic Development monthly staff meeting. (Id. at 200). 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). In fact, the record evidence includes copies of monthly status reports submitted by Ward. In each report Ward detailed her contacts with businesses. Morant-Adams testified that during individual meetings (the last of which held on August 5, 2010) she never conveyed to Ward any concerns about productivity. Morant-Adams held staff meeting each month and also held individual meetings with other staff members as well. (Vol. 6 at 95, wherein employees go over status reports; met with some employees individually every two weeks, some monthly (Id. at 79). Ward recorded the four individual meetings she had with Mrs. Adams following her three-day suspension. (The Personnel Boards revised findings misconstrue these individual meeting and refer to these incorrectly as performance improvement meetings.) During their final individual meeting (August 5, 2010), Mrs. Morant-Adams conceded that the meeting with Mrs. Ward was congenial. Morant-Adams acknowledged that at the close of that meeting, she expressed her thanks and invited Mrs. Ward to present her ideas at a staff meeting. (Id. at 200). At one point during the meeting, Morant-Adams is heard to praise Mrs. Ward, saying good job. (Id. at 196). The City Personnel Director was

present during this meeting. (Vol. 6 at 202.) The audio recording of this meeting clearly did not reveal any criticism in the nature of production. (Id. at 193). The recordings of these four meetings reveal no mention of a performance improvement plan). In fact, other employees had individual status meetings with Adams to discuss progress on their respective projects. Thus individual meeting should not be construed as a performance improvement meeting. It also should not be overlooked that there were no other status meetings with Ward after August 5, 2010. This absolutely belies any notion that the City held any concerns as to Wards production.

2. The Personnel Board adopted the hearing officers findings of fact and cannot now obliterate the factual record created by its duly appointed hearing officer. The findings below support Wards contention that the City failed to follow its policy of progressive discipline and failed to follow merit principles.

Mrs. Wards first disciplinary action came in April 2010. (Id. at 5). Ward was noticed in May with a three-day suspension as a result of two specific infractions. (Id. at 5).

Adams admitted that the suspension was not preceded by any written reprimands or any written recommendations for improving work performance. (Id. at 5).

Mrs. 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. (Id. at 5).

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. (Id. at 6).
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Prior to her testimony, Mrs. Morant-Adams reviewed the audiotapes of these meetings. (Id.).

Adams testified that during these meetings she did not convey any concerns about Mrs. Wards productivity or working relationships at the office. (Id.)

The hearing officer found this pattern troubling, opining that irregular and inconsistent manner of counseling militates against the City (Id.).

Ward argued on appeal that the City: having not presented at that time any other deficiencies (such as failure in production, creating a hostile work environment); having not given her written reprimands or suspensions in 15 years, particularly as to Mrs. MorantAdams since 2008; and having not recorded in the file any evidence that any verbal reprimands had been given to Mrs. Ward; one must logically conclude that these two specific deficiencies (for which Mrs. Ward was suspended three days) were in fact the sole deficiencies related to Wards work performance. Ward also effectively argued before the Personnel Board and this Court that :One would logically also conclude that the events giving rise to the charges alleged in October 8, 2010 stemmed from work behavior during the ensuing months1, May through September 29, 2010, the date Ward was placed on administrative leave pending an investigation of hostile work environment. This timeframe certainly conforms to correspondence crafted by Mrs. Morant-Adams (coincidentally sent that same day Mrs. Ward was placed on administrative leave) and sent to Mr. Patton, requesting his assistance with Mrs. Ward which had occurred over the course of several months. (Vol. 3: Respondent Exhibit 9). Ward further argued on appeal: In a merit system, management has an obligation to

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). 6

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. The Personnel Board accepted these arguments. Ward further argued that the Record contains no evidence that during this period (May through September) that Mrs. Ward was apprised that she failed to show any production on the assignments given to her by her supervisor, Mrs. Adams. Wards first notice came with the charge on October 8, 2010. At that time, Mrs. Ward was on administrative leave pending an investigation of hostile work environment. Wards argument was noted as well by the hearing officer. Indeed, the hearing officer found this pattern or lack thereof, is troubling. Also troubling was the irregular and inconsistent manner of counseling. 3. The City placed Ward on leave after an employee criticized Ms. Adams for failed leadership; the notice did not mention failure in production. Mrs. Ward was placed on administrative leave on September 29, 2010 pending an investigation of hostile work environment, a charge that the hearing officer dismissed out of hand due to it amorphous nature. (Vol. 6 at 256-258.) It is absolutely undisputed that failure to produce was not listed as grounds for placing Ward on administrative leave. (Vol. 2: Respondent Exhibit 10). Morant-Adams was aware in advance that Mr. Patton planned to place Mrs. Ward on administrative leave pursuant to the September 10, 2010 letter composed by Mr. Patton. (Vol. 6 at 257-258). She did not inform Mrs. Ward of this contemplated action. (Vol. 6 at 816-823). Conclusion Ward respectfully submits that the Personnel Board June 12, 2012 Order is due to be stricken. Gayle Gear ___________________________ Gayle Gear Attorney for Felicia Ward

CERTIFICATE OF SERVICE I hereby certify that on this the 19th day of June, I sent a copy via U.S. mail of the foregoing to all parties 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).