1

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA CITY OF BIRMINGHAM FINANCE DEPARTMENT Complainant/appellant, * vs. * * VIRGINIA E. SPIDLE, Respondent/appellee. * * CV-2012-0039 * * * *

SPIDLES RESPONSE IN OPPOSITION TO MOTION TO REMAND Virginia Spidle, Respondent/Appellee herein, files this brief in opposition to the Citys Motion to Remand. This brief is also submitted in support of the Jefferson County Personnel Boards ORDER, reinstating Mrs. Spidle to employment. BRIEF SUMMARY OF DISCIPLINARY PROCEEDINGS On May 28, 2010, the City of Birmingham served Virginia Spidle with disciplinary charges that alleged that she had created a hostile work environment. The City instructed Henry Young, Deputy Director of Finance, to present Mrs. Spidle with a Notice of Determination. (TR at 725, 732-733 and 878-879; Vol. 1: Record Exhibit 43.)(TR refers to Transcript of the Personnel Board hearing located in Volume 6 of the Record. Record Exhibit refers to Personnel Board

exhibits.) Mrs. Spidle was immediately placed on administrative leave from her assignment as Chief Accountant in the Finance Departments General Accounting Division. Up until that day, Mrs. Spidles twenty-four year career was unblemished. (TR at 812.) She had served in the capacity of Chief Accountant for over eighteen years. (TR at 803-804.) Charges against Mrs. Spidle stemmed from allegations of low morale brought by six employees in the Accounting Division. (TR at 855.) Jarvis Patton, who was appointed on February 2, 2010 to Chief of Operations, initially learned of possible low morale when he spoke with Mailye Taylor who had been recently reprimanded by Mrs. Spidle for poor work performance. (TR at 43-44, and 851-853.) Shortly after his conversation with Taylor in the hall in

passing, five other employees identified themselves as having similar concerns. (TR at 43 and 46-48.) Patton referred to these complainants as the Birmingham Six. (TR at 48.) Shortly after this meeting, Patton instructed Young to assume direct supervision over the Birmingham Six. (TR at 57 and 746-747.) In mid-March 2010, Chief of Operations Patton met with the six complainants in the Mayors Office. (TR at 48, 51-56, and 135.) Following this meeting, Patton retained an outside lawyer (Jonice Vanterpool) to investigate the allegations of

the Birmingham Six. 1 (TR at 59, and 167.) Each complainant was interviewed by Attorney Vanterpool. (TR at 62.) Vanterpool failed to interview the remaining twenty two co-workers in General Accounting. She also did not interview Spidles immediate supervisors: (1) former Finance Director Michael Johnson, who supervised Spidle for nearly 12 years (TR at 545 and 552) and (2) Henry Young, who supervised Spidle in 2008 though May 2010. (TR at 742-743.) Young described the events leading up to and including May 28, 2010. On May 27, 2010, Young was summoned to a meeting in the City Law Department. Present were Jarvis Patton and City Attorney Thomas Bentley.

Young was informed that charges against Mrs. Spidle were forthcoming. (TR at 727-728). The following day, on May 28, 2010, Young, who did not draft the charges, was given Spidles Notice of Determination. (TR at 732-733 and 735; Vol. 1: Respondent Exhibit 44.) As directed, Young signed the Notice of

Determination and served it on Mrs. Spidle that day. (TR at 740). Also as instructed, he placed Mrs. Spidle on administrative leave. (TR at 733 and 740.) Young observed that Spidle was distraught upon receiving this notice. (TR 741.) Young testified that he made no effort to explain since he knew nothing leading up to the disciplinary action. (TR at 741-742.) At the hearing, Young
1 Jonice Vanterpool was retained by the City Law Department in March 2010. Spidle was interviewed by Vanterpool but was not informed of the purpose of the investigation. Spidle was instructed by City Legal to cooperate with Vanterpool. (TR 859.) Although the investigation was deemed to be related to low morale, Spidle was quizzed on the race of all employees in the Division. Spidle furnished to Vanterpool her office files regarding the complainants work performance issues. (TR at 858, 872-873.).

revealed that he was not aware that Mrs. Spidle had been the target of an investigation. (TR at 748.) Young also revealed that the following named

complainants had not discussed with him any workplace issues: Calvin Bowman, Mailye Taylor, Shirley Foy, Irma Moore, Jennie Lane and Brenda McDaniel. (TR at 745.) Had they done so, he stated that he would have timely addressed their concerns. (TR. 743-744.) Although Young was Mrs. Spidles direct supervisor, his involvement in Spidles disciplinary action was strictly ministerial, that is limited to signing and serving notices regarding Spidles disciplinary action. (TR at 742-743.) 1. Young was not involved in the internal investigation conducted by Vanterpool. 2. Young did not furnish a statement nor was he interviewed by Vanterpool; 3. Young did not review any affidavits filed by the Birmingham Six; 4. Young never saw any investigative report from Vanterpool; 5. Young had not been briefed on any investigative findings. After being served with disciplinary charges, Mrs. Spidle was immediately removed from her office and placed on administrative leave. She was not permitted to copy personal files from her office to defend against these charges. (TR. 873.) Shortly thereafter, Ms. Spidle took medical leave. (TR at 881.) While on leave, Spidle sent letters to City legal requesting access to files that would assist her in responding to the Citys charges against her. Spidle testified that she did not

receive many of her personal office files maintained on several of the complainants. (TR 885-886; Vol. 1: Respondent Exhibits 4 and 5.) Jarvis Patton recommended Spidles termination in advance of her determination hearing. Prior to the determination hearing, Patton recommended Spidles termination to newly elected Mayor William Bell. (TR at 111.) At the Personnel Board hearing, Patton admitted that he did not consider or review Spidles performance evaluations or disciplinary history before making his termination recommendation to the Mayor. (TR at 166.) Patton also conceded that he did not review the employment records of the complainants, although he was aware that Bowman had an eight to ten year history of litigation against the City. (TR 83, 107 and 165.) Quoting from the Personnel Board findings: Patton conceded that he did not review the hiring and promotional history of Spidle before terminating her employment. Patton had not reviewed the personnel file of any of the 6 complainants. Patton was not very familiar with previous documentation that touched upon and concerned employee, Calvin Bowmans history of complaints with the City. (Hearing Officer Report at 3.) Spidles Determination Hearing was held immediately upon her return

from medical leave. Mrs. Spidle returned from medical leave on October 25, 2010. (TR at 881.) Upon arrival to work at 8:30 a.m., Young convened a determination hearing. Also present at the hearing was Jarvis Patton, Chief of Operations, and Mark Waggoner, a recently retained contract lawyer from the Birmingham law firm Hand Arendall.2 (TR at 39, 767-768, 881 and 907; Volume 1: Record Exhibit 57.) At the determination hearing, Mrs. Spidle submitted and briefly summarized approximately thirty documents in defense of her case. (See Volumes 1 and 2; Respondent Exhibits 4-6, 9-39, 42, 69,70, 72, 76; TR at 771 and 782-784.) Spidle explained during the determination hearing that it was unfair to cast blame on her for matters outside her control. She submitted documents to support her position that she was not the final-decision maker in matters that were being charged. Ms. Spidle further explained that she was supervised over the course of her career by a series of Deputy Directors (Frank Lopez, Michael Johnson and Henry Young) and Finance Directors (Hoyt Bedingfield, Mac Underwood, Falosade Olanipekun, Michael Johnson, Steve Saylor, and Henry Young). Many of these supervisors are African American and all accorded her favorable evaluations. (TR

2 On June 16, 2010, Fred Fullerton, on behalf of the City Law Department, notified Ms. Spidle that she would no
longer be represented by City attorneys. An outside firm (Hand Arendall) was retained by the City to handle the Bowman suit and to also represent the City at the determination hearing that resulted in Spidles termination. Jonice Vanderpool was hired shortly thereafter to work as a lawyer at the firm Hand Arendall.

at 551.) She had never been disciplined or asked to attend diversity training. (TR at 813.) Spidle also reviewed at the determination hearing a chart depicting new hires and promotions. The chart contrasted the racial composition of personnel in General Accounting 1992 (upon her appointment) and in 2010 (upon her termination). Spidle illustrated that the racial make-up of African Americans had increased from 50% to 75% over the course of her leadership. (TR at 805-806, 811 and 815; Volume 1: Respondent Exhibit 36). That same day, that is on October 25, 2010, Young was directed by the Mayors Office and City Legal to sign Spidles notice of termination. (TR at

770 and 772; Volume 5: Record Exhibit 64.) As stated earlier, before executing this notice of termination, Young did not review any documents purportedly the basis for these charges. (Volume 4: City Exhibit 1). And as stated earlier, Patton testified that he made his recommendation to the Mayor to terminate Spidle in advance of the determination hearing. (TR at 111.) Patton went further. To the extent he could recall seeing any of Spidles exhibits, he denied their relevance. In fact he denied the relevance of the Citys affidavit of then- Personnel Director Barbara White who denied the accuracy of Bowmans claims. (TR 120-132; see also Volume 3: Respondent Exhibit 68.)

Patton made key admissions during his trial testimony regarding his decision to terminate Mrs. Spidle. Patton admitted that he did not investigate the hiring history or the racial make-up of the Division before Mrs. Spidle was charged with racial discrimination in hiring and promotional practice. (TR at 136.) Patton boldly stated that this 25% increase in African American employees was irrelevant to the allegation that Mrs. Spidle had discriminated in hiring and promotions of African Americans. (TR 141-142.) Shockingly, Patton conceded that when he recommended Spidles termination he was unsure the charges were valid. (TR 132-133.) That same day, that is on October 25, 2010, the City mailed Spidles termination notice to her home address. (TR at 772.) Mrs. Spidle timely appealed her termination. The Jefferson County Personnel Board appointed a hearing

officer to conduct Spidles disciplinary appeal hearing. (Personnel Board). BRIEF SUMMARY OF PERSONNEL BOARD FINDINGS The hearing officer conducted a four-day hearing on the matter over the course of five months.3 Numerous witnesses were called to testify. The hearing officer listened first hand (not through a lawyers rendition of testimony or through a transcript) to each witness. The hearing officer judged the veracity of each witness based on his/her demeanor and testimony. The hearing officer then deliberated
3 July 13-14, 2011, September 27, 2011, November 17, 2011.

and summarized his findings and made a recommendation to the Personnel Board. (Volume 1: Record Exhibit 6, Hearing Officer Report.) The Personnel Board deliberated upon the hearing officers findings of fact, examined the record evidence, received written submissions from the parties and heard oral argument. The record contained testimony of numerous witnesses and nearly one hundred exhibits submitted by Mrs. Spidle. The City submitted one exhibit consisting of ninety odd pages (Volume 4: Complainant Exhibit 1.). The Personnel Board also took notice of official records maintained by the JCPB. (TR at 9, and 928). The employment records reflect the following:
1. Mrs. Virginia Spidle was terminated after 24 years of employment in

the City of Birmingham. 2. Spidles employment file and performance evaluations reflect an exemplary work history. (TR at 928.) 3. Prior to her notice of termination in October 28, 2010, Mrs. Spidle had never been reprimanded or the subject of any grievances or race discrimination before the Board. (TR at 812.) 4. In 1992, Spidle was promoted to Chief Accountant. Spidle had never been disciplined in her 18 years as Chief Accountant with the City. (TR at 803, 812, and 720.) The hearing record also contained undisputed evidence of Mrs. Spidles career with the City of Birmingham. Mrs. Spidle, with a ten-year career as a Public Accountant, began working for the City in 1986 as a Senior Auditor in the Revenue Division. (TR at 803). In 1992, Mrs. Spidle was promoted to the position Chief Accountant of the General Accounting Division. (TR. at 804.) General

10

Accounting was comprised of five sections (each section was assigned a principal accountant). General Accounting had responsibility for the following functions: paying bills, maintaining the general ledger, preparation of financial reports, and administering payroll and pension. (TR at 804-805.) In 1992, the Accounting Division was composed of 50% African American employees. In 2010, the composition of the workforce of African Americans had been increased to 75% African American. (TR at 805-806 and 810-811). Over the course of her leadership, Mrs. Spidle hired and promoted numerous African American employees. (TR at 808-810 and 815-817; for comparison chart of hires and promotions, see Volume 1: Respondent Exhibit 36). Mrs. Spidle was never disciplined for any infraction during the course of her employment. (TR at 812). She was never the subject of any claim of race discrimination in any jurisdiction (whether in state court, federal court, or Jefferson County Personnel Board). Spidles first and only disciplinary charge came when she was removed from her office on May 28, 2010. (TR at 720 and 812).

BRIEF SUMMARY OF THE CITYS FAILED ARGUMENTS

On January 10, 2012 the Personnel Board adopted and affirmed the findings of fact and recommendation of the hearing officer. (Volume 1: Record Exhibit 6.) The City filed objections to the hearing officers report and was given an

11

opportunity to argue its various positions. (Volume 1: Record Exhibit 5.) Among these failed arguments was that the hearing officer presided over a popularity contest and that he made off the cuff judgments regarding the various witnesses. The City also argued that Title VII law should be applied at a

Personnel Board. In its Motion to Remand, the City presents the same failed arguments, asking this Court to remand its appeal to the Personnel Board for rehearing. Mrs. Spidle opposes this motion and argues instead that the Court affirm the ruling of the Personnel Board. First Failed Argument: The Jefferson County Personnel Board rejected: that an appeal from termination by a merit employee should be governed by Title VII standards. The Personnel Board rejected the Citys attempt to present this appeal as a Title VII federal court case. The City argued that under Title VII one employee claiming racial discrimination (in this instance two: namely Calvin Bowman 4 and Mailye Taylor5) is sufficient to support a claim of employment discrimination. By the City reasoning this one allegation justifies the termination of a merit

4 Bowman was hired as an accountant in 1999. Within two years of his employment, Bowman filed numerous claims against various officials, including the Mayor, the Citys Personnel Director, and the Director of Finance. Over the course of his employment, Bowman filed two federal court cases against the City and various supervisors, including Mrs. Spidle pursuant to American Disabilities Act and gender discrimination (Title VII). (TR at 823-825, 827). 5 Mailye Taylor lodged a complaint in early March 2010, with newly appointed Chief of Operations, Jarvis Patton following her reprimand for not maintaining fixed assets which resulted in an adverse finding by the outside auditing firm. Taylor was also charged with failing to maintain car tags for police vehicles. (TR at 852-853).

12

employee. In essence, the City attempts to have the JCPB assume jurisdiction over a Title VII case that had never been filed in any jurisdiction. The City ignored the fact that the respondent in a Title VII case can only be an employer as defined by federal law. The City also ignored the obvious reality that Mrs. Spidle was not the final decision maker in employment matters in the Accounting Division of the Finance Department and that she directly supervised only five employees (Principal accountants). The so-called complainants the City seeks to defend were not supervised by Mrs. Spidle. Second failed Argument: The Jefferson County Personnel Board rejected: That one disgruntled employee (referred to as the Birmingham Six) can support a claim of race discrimination and hostile work environment. The Personnel Board rejected the Citys allegation that Mrs. Spidle over the years had not accorded African-American employees fair treatment as to hiring, promotions, and training opportunities. The Personnel Board did not find credible the testimony of the Citys witnesses. The Personnel Board did find credible the testimony of various witnesses called by Mrs. Spidle. (Volume 1: Record Exhibit 6, Hearing Officers Report at page 7.) As recognized by the Personnel Board, witnesses who testified on behalf of Mrs. Spidle described in detail her willingness to support and encourage them [many of whom were AfricanAmerican] on matters of a personal nature, as well as, professional.

13

The Personnel Board concluded that the City did not have sufficient evidence to support any of the charges lodged against Mrs. Spidle. The Personnel Board adopted the hearing officers findings of fact and recommendation that Mrs. Spidle be reinstated to employment. Report at page 7.) 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 (the special competence of the agency lends great weight to its reasoning and decision). In general, the review by a court of any Personnel Board action is extremely limited. Templin v. City Commission 187 So. 2d 230 (1966). 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). The courts review is limited to the record made before the board and to questions of law presented. The determination of the weight and credibility of the evidence presented is solely within the province of the Board. Thus, appellate review is limited to (1) proper application of relevant law and (2) whether the Boards ruling is supported by any legal evidence. The court must affirm if there is substantial evidence to support its finding. City of Mobile v. Seals, 471 So. 2d 431, (Volume 1: Record Exhibit 4, Hearing Officer

14

433 (Ala.Civ.App. 1985). Substantial evidence is relevant evidence that might be accepted by reasonable minds as adequate to support a conclusion. City of Mobile v. Trott, 596 So. 2d 921, 922 (Ala.Civ.App.1991). Substantial evidence is more than a mere scintilla of evidence but can be less than a preponderance of the evidence. Freman v. City of Mobile, 590 So. 2d 331 (Ala.Civ.App.1991). If there is substantial evidence to support the Boards determination, the trial court must affirm the Boards decision and may not substitute its judgment for that of the Board. The court is not permitted to judge the wisdom of the decision of the Board. Creagh v. City of Mobile Police Dept, 543 So.2d 698 (Ala.Civ.App.1989). When as here, the Personnel Board utilizes a hearing officer, 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 Personnel Board properly applied the relevant law and its decision is supported by substantial and legal evidence. Finally, courts give substantial deference to an agencys interpretation of its policy and such is controlling unless it is plainly erroneous. Ex parte Bd. of School Comrs of Mobile County, 824 So. 759, 760 (Ala. 2001). SUBSTANTIAL EVIDENCE SUPPORTS FINDINGS OF FACT Substantial Evidence Supports the Following Finding: Accusations levied against Spidle lacked consistency and any reasonable degree of uniformity to be accepted. This would include, but not limited to, the

15

testimony of Calvin Bowman. Perhaps none more so than the testimony of Calvin Bowman. (Volume 1: Record Exhibit 6, Hearing Officer Report at page 7). In its charges against Mrs. Spidle, the City relied on the testimony of two of the so-called Birmingham Six: Calvin Bowman6 and Mailye Taylor.7 Bowman was hired in 1999 as an accountant at the recommendation of Finance Director Mac Underwood. (TR at 270.) Bowman was initially given a provisional appointment and was later hired. (TR at 272.) Bowman has sued over his ten-year career with the City many officials in their individual capacity including Mayor Bernard Kincaid, Personnel Director Gordon Graham and Finance Director Falosade Olanipekun. Each of these

officials responded to Bowmans claims through the City Law Department as did Ms. Spidle. None of his claims against the City or any of the above-referenced supervisors dealt with race discrimination. Until 2010, Bowman reported to and was supervised by Principal Accountant Jerry Nemeth. (TR at 293.) Mailye Taylor, the other complainant, was already

employed in the Accounting division when Spidle was promoted to Chief Accountant in 1992. (TR at 186.) Throughout this period, until March 2010,
6 Bowman testified that he was called into a meeting in the Mayors Office in March 2010. At that meeting with the Birmingham Six, Bowman alleged unfair treatment in the Accounting Division. (TR at. 256.) At that time, Bowman had a disability case pending in federal court, wherein he had alleged that he was wrongly denied a workplace accommodation (reduced work week) because he had allergies. Although Spidle played no role in this decision, Bowman sued Spidle in her individual capacity. 7 Taylor also met with Patton regarding workplace issues. She complained that in her 22 years with the City she had never been promoted. (TR. At 197.)

16

neither Bowman nor Taylor had ever filed a race allegation suit against the City or any of its supervisors. (TR at 280-281, 283, 294-295, 303, 317-318, 334-336, 347, 353, 358 (Bowman testimony) and 205 (Taylor testimony). So-called race

allegations emerged after these two employees met with Jarvis Patton, newly appointed Chief of Operation of the newly elected Mayor Bell. (TR at 39-40.) Substantial Evidence Supports the Following Finding: That Calvin Bowman, the principal complainant, focused much of his energy in his campaign to fight against the City and/or officers of the City for 10 years. Over the years, Bowmans written complaints, whether formal or informal, are not consistent with claims he attributes to Spidle that would justify her termination. (Hearing Officer Report at page 7.) The charge of race discrimination (hostile work environment) was a newly ginned-up charge stemming from a meeting held on March 17, 2010 between Calvin Bowman, accountant, and Jarvis Patton, a recently appointed aide to the newly elected Mayor. (TR at 39, 48.) Patton was aware that Bowman, a ten-year employee, had a history of filing grievances and other complaints against various employees and government officials. (TR at 147.) It is undisputed that none of Bowmans six EEOC charges filed over the course of eight years pertained to race discrimination. (TR at 280-281, 303, 335-336 and 347.) Neither of Bowmans two federal court suits filed over the years (2004 and 2010) pertained in any manner to race discrimination. (TR at 280-281, 296-297, 315 353, 358.)8
8 Since the City litigated these matters, there can be no justification for the City to claim that race cases had been filed against Spidle. Such is blatantly false and should be subject to sanctions by the court.

17

Bowmans history of litigation is detailed in the record evidence.

In

December 2004, Bowman filed a civil complaint in federal court alleging that the City had violated the American with Disabilities Act (ADA) . (Volume 2: Respondent Exhibit 72; TR at 296-297 and 315.) Within months, he added a claim of retaliation, contending that he was being denied flex time as a necessary accommodation. (Volume 2: Respondent Exhibit 73; TR at 316-317). Ms. Spidle and Jerrold Nemeth were individually sued and the City undertook their defense in their individual capacity. (TR at 316.) In the Citys answer, the City recognized that Spidle was not a proper party to the suit in that she was not the final decision maker as to ADA matters. The City reached a nominal settlement ($15,000.00) with Mr. Bowman with the understanding that he would be transferred to another department.9 (Volume 2: Respondent Exhibit 76; TR at 327-328.) City Attorneys represented and indemnified Ms. Spidle.10 (See Settlement Agreement, Volume 2: Respondent Exhibit 38). During these years while pursuing ADA/gender suits against the City, Bowman filed other claims with OSHA, Workers Compensation, Wage and Hour Board, and the Pension Board. (See for example, Exhibits 9, 11, 19, 21, 24-26; TR
9 Bowman was not transferred until after Spidle was terminated. He is assigned to the Bill Harris Arena from his previous assignment working the travel desk. (TR 147-148.) 10 The City misrepresented the clear facts as to the history of Bowmans 2004-2007 litigation. It should not go unnoticed that the City Personnel Office not Mrs. Spidle--handles all matters pertaining to disability claims. These claims are appealable to Linda Coleman, the City ADA officer. Bowman did not appeal to Coleman for relief. (TR at 352.)

18

at 279-281, 294-295 and 303.) In fact, Bowman filed a grievance with the JCPB in 2003 claiming unfair treatment due to disability discrimination. (TR at 283.) The Jefferson County Personnel Board afforded Bowman a hearing. (TR at 286.) The City Finance Director denied Bowmans claims before the Board. (Volume 3: Respondent

Exhibit 12 & 13; TR at 284). The JCPB ruled against Bowman. (Volume 3: Respondent Exhibit 17; TR at 287-288). A hearing before a duly appointed JCPB hearing officer was conducted on January 23, 2003. The hearing officer found that Bowman had suffered no inconsistent application of any arbitrary or capricious rule, nor any retaliatory actions. To the contrary, the City was merely trying to avoid paying full-time employees for part-time work. Respondent Exhibit 17 at page 4; TR at 288.) During the time Bowman met with Patton in March 2010, Bowman filed a second federal suit, having earlier filed two EEOC charges. (TR at 353; April 9 and November 5, 2009, Volume 2: Respondent Exhibit 69.) He amended his (See Volume 3:

complaint on April 20, 2010. (TR at 357; Volume 2: Respondent Exhibit 70). Bowman claimed that he was wrongfully being denied a four-day work week to accommodate a disability resulting allergies in the workplace. Bowman also

alleged gender/sex discrimination. As with his earlier suit and EEOC filings there

19

was no mention of race discrimination. In November 2010, the City settled the case for a nominal amount. The City paid Bowman $9,500.00; in return, Bowman dismissed the case against the City, Ms. Spidle and Mr. Nemeth. Bowman promised not to pursue any claims or actions against the City or Mrs. Spidle.(TR 364; Volume 2: Respondent Exhibit 40.) Bowmans credibility was also challenged by the City in earlier litigation. During a deposition, the City Attorney questioned Bowman about his felony convictions prior to being hired by the Citys Finance Department. (Volume 3: Respondent Exhibit 37). Such matters bear on Bowmans credibility yet the

current City contract lawyers now seek to paint Bowman as a credible witness -- a victim of discrimination at the hands of the various Mayors, Finance Directors, and Mrs. Spidle. In both the 2004 and 2010, federal court cases, the Citys Legal Department served as counsel for Ms. Spidle who had been sued in her individual capacity. As stated previously, neither of these cases involved any claim of race discrimination. For nearly eight years, Ms. Spidle was in regular contact with City attorneys and with Barbara White, the Director of City Personnel in order to avoid any further allegations of this nature. Ms. Spidle did not directly supervise Bowman (or his

20

co-worker Mailye Taylor). Moreover, Ms. Spidle was not the final decision maker on promotions or decisions related to accommodations in the workplace. The City conceded these points in various court filings and correspondence prepared by City lawyers and the City Personnel Director. It is absolutely indefensible for the City to assert otherwise in this proceeding when numerous court filings introduced into evidence in this case prove otherwise. After the City placed Mrs. Spidle on administrative leave, Bowman attempted to add a race claim in his ADA/ gender suit which was pending in federal court. The City (represented by Mark Waggoner of Hand Arendall)

opposed Bowmans motion to amend and filed a harshly worded response. Attorney Waggoner stated on behalf of the City that Bowman provided no particular instance of, or any factual support for such an allegation of race discrimination. (Volume 4: Record Exhibit 28 at pages 7-8.) The City took direct aim at Bowmans allegation that Ms. Spidle treated black women and white women more favorably than black men in hiring and promotional decisions [. . . training received [. . .] hostility, sabotage [etc.]. The City ridiculed Bowman: [Bowman], who is black, continues to allege that both white and black co-employees were treated more favorably by co-defendants, Nemeth and Spidle. . . . It is fundamental that one cannot sustain a claim of racial

21

discrimination by alleging that employees who included members of ones own race received more favorable treatment. . .. Substantial Evidence Supports the Following Finding: While Bowman, Taylor and other employees are convincing in regard to their dissatisfaction with particular elements in the workplace, it is just not convincing that such dissatisfaction is a product of any wrong-doing on behalf of Virginia Spidle. (Hearing Officer Report at page 7.) Peggy Polk (then-analyst for the Citys Personnel Department and former counselor with a Drug Rehabilitation Program) also gave a statement and furnished to Vanterpool assorted documents she had prepared in 2005. (TR 500501 and 528.) Polk admitted that there is no official policy defining hostile work environment. (TR at 541.) The hearing officer summarized his findings as to each of the remaining four complainants who testified at the hearing: Mailye Taylor: Taylor also admitted that Spidle did not oversee her production, and that other individuals in the department interviewed her for possible promotions, rather than Spidle.; Shirley Foy: Foy called Spidle a liar which had a detrimental result in their working relationship.; Irma Moore: she has never filed a claim personally, never been denied a promotion and never been reprimanded;

22

Jennie Lane: When she previously requested permission to attend CGAT training, she was denied in 2005 and permission was granted in 2006. Lane conceded that subsequent to a department meeting in 2009, her job was reclassified which resulted in a promotion for all practical purposes. Lane confessed that Spidle ruled favorably for her in the re-classification hearing. (Volume 1: Record Exhibit 6, Hearing officer Report at pages 3-4.) Substantial Evidence Supports the Following Finding: [Johnson]testified that Spidle deals with subordinates professionally and that he never saw her treat employees differently. Johnson indicated that he was never interviewed by anyone over suspected discrimination or hostile work environment. He indicated that he never witnessed a hostile work environment or unfair hiring practices. Former Finance Director Michael Johnson, (Vol. 1: Record Exhibit 6, Hearing officer Report at 5.) Mr. Michael Johnson, an African-American, described his working relationship with Ms. Spidle. Johnson described her as a joy to have in the department.11 (TR at 545 and 556.) Johnson further testified that he was never aware of any allegations of race-discrimination in the Accounting Division. (TR at 548, 552-553 and 566.) Johnson testified that he would have promptly

investigated such claims and remedied a problem of this nature. (TR at 566.) He also pointed out that he had an open door policy, yet was never alerted of any complaints by Bowman. (TR at 554 and 566.) Nor did he observe Mrs. Spidle

11 It is always nice when you have someone that is cooperative and also knowledgeable. (TR at 556.)

23

treat Blacks differently over the course of his supervision which ended in 2008. (TR 548.) The only employee dispute he could recall involved Ms. Shirley Foy who had filed a complaint against her direct supervisor Mr. Isaac Smith. Johnson testified that he was unaware that Polk had investigated Foys allegation of mistreatment at the hands of Isaac Smith, both of whom are African-American. (TR at 563-564.) Johnson assumed Mailye Taylor had filed a complaint after the City hired a Caucasian (Roger Miniard) for a supervisory position. (TR at 561. ) Johnson testified that he assured City Legal in a memo that the hiring decision was correct. (TR at 561; Volume 3: Respondent Exhibit 92.) Substantial Evidence Supports the Following Finding: Young was unaware of any verbal or written warnings to Spidle and not aware of Spidles receiving a reprimand for a hostile work environment. Young also conceded that if he thought there was a racial problem, he would have addressed it immediately, but he did not believe there to be one. Supervisor Mr. Henry Young, Deputy Director of Finance. (Hearing Officer Report at 6.) The City purports to have a policy of progressive discipline. (TR 165, 720-723.) In Polks previous 2005 investigation12, she never recommended any disciplinary action and felt it would be unfair to discipline someone if the progressive disciplinary policy had not been followed. (TR at 517, 537.) The hearing officer

12 In a February 2005 e-mail to City Legal and Spidle, City Personnel Director Ann Thompson cancelled the
investigation of disability claims by Bowman after it was learned that Bowman had filed an ADA suit in federal court. (See Volume 1: Respondent Exhibit 22).

24

specifically noted: Polk did opine that if Spidle was never warned of problems in her department and allowed an opportunity to resolve same, her termination would be unfair. (Volume 1: Record Exhibit 6, Hearing Officer Report at page 4; TR at 517.) Mr. Young, who is an African-American, testified that he was never approached with any allegations of race discrimination in the Accounting Division.
13

Young had served as Ms. Spidles direct supervisor from his appointment on

September 28, 2008 until Mrs. Spidle was placed on administrative leave in on May 28, 2010. (TR at 717, 719, 745.) At the Personnel Board hearing, Young also shed light on Calvin Bowmans claims of discrimination. Young testified that in 2009, with the assistance of City Legal, he filed an affidavit with the EEOC against Bowmans claim that he was being denied training because of gender/sex and disability discrimination.14 (TR at 773-781.) In his EEOC affidavit opposing Bowmans claim of gender discrimination, Young stated that numerous opportunities had been afforded Bowman and that the specific training that Bowman had requested was inappropriate. (TR at 776-781; Volume 3: Respondent Exhibit 31 for copy of
13 Young testified that if there had been a race problem he would have investigated and corrected it. Young stated that he had never received any racial complaints against Mrs. Spidle. (TR at 743-744.) 14 Bowman had filed a claim with the EEOC alleging that he had allergies and that the City had wrongfully denied an accommodation under the American Disabilities Act. (TR at 774-775). At that time decisions regarding workplace accommodations were handled by the City physician, and the Citys Personnel Director. Mrs. Spidle was not involved in decisions of this nature. (See Volume 1: Respondents Exhibit 42.)

25

Youngs 2009 affidavit filed with EEOC by the City). At the hearing, Young also confirmed that Bowman had never filed any race claims against the City or against Spidle. (TR at 737 and 739- 740.) He also testified that he issued a verbal reprimand to Bowman in 2010 for workplace misbehavior regarding his time and attendance. (TR at 748-749; Volume 3: Respondent Exhibit 83, copy of verbal reprimand issued on May 18, 2010.) Young also shed light on the work performance of Mailye Taylor. He testified that in March 2010, Taylor was reprimanded because she failed to order car tags causing police vehicles to be without valid licenses. (TR at 790, 852-853.) Deputy Director Young also was aware that Mailye Taylor was cited for work deficiencies as noted in an independent audit reported at the end of the fiscal year on June 30, 2010. In an independent audit completed shortly after Spidles Taylor was

termination, fixed assets area was cited for serious deficiencies.

assigned to this desk since 2002 according to Young. These audit findings were introduced into evidence. (TR at 794-799; Volume 1: Respondent Exhibit 75). Taylor was never recommended for promotion by any of her supervisors, including Isaac Smith, an African-American. (TR at 910.) Taylor conceded that simply scoring well on test or holding a job does not in itself qualify an employee for a promotion. (TR 206-207.) Taylor said she was interviewed and passed over for a

26

promotion in General Accounting and Mrs. Spidle was not involved in the interview and selection process. (TR at 207-209.) Taylors performance deficiencies were longstanding and initially reported by Information Management Services personnel, as testified by former systems analyst Nadine Hays. (TR 672-683.) The results of the independent audit along with other work deficiencies testified to demonstrate that Taylor was simply not a qualified candidate for promotion in General Accounting. Despite her most recent failing grade as reported in the independent audit, the City in July 2011 created a new promotional position for her in Fixed Assets. According to Young, Taylor continues performing the same duties in fixed assets (such as they are) while collecting a higher rate of pay. (TR at 793-794.) The reference below was taken from an audit released in June 2010 and it specifically cites deficiencies in the area of fixed assets. (Volume 1: Respondent Exhibit 75; TR at 794, 796-797.)

27

The Deputy Director of Finance Henry Young confirmed that at the time Mrs. Spidle was terminated, the racial composition of employees was 75% African American and 25% Caucasian. The record of new hires (upgrades) and promotions during the Spidles 18 years as Chief Accountant is undisputed. Under Spidles leadership there was a 25% increase of African American employees in the Accounting division. (Volume 1: Respondent Exhibit 36). The evidentiary record confirms, as to principal accountant positions, Spidle promoted three persons, two are African-American (Isaac Smith and Betty Griggs). The three remaining Principal Accountants, who are Caucasian, were

28

employed by the City before Mrs. Spidle was assigned to Accounting in 1992. (See Volume 1: Respondent Exhibit 36 for a listing of hires and promotions submitted and discussed at Spidles determination hearing.) Substantial Evidence Supports the Following Finding: The most credible witnesses during the hearing spoke highly and positively of Spidles abilities as a supervisor and appropriateness in which she governed her division. . . [and] willingness to support and encourage them on matters of a personal nature, as well as, professional. (Hearing officers report at page 7.) City lawyers (on behalf of the City) stipulated that Mrs. Spidle did not treat all African-Americans differently than their Caucasian co-workers in the Accounting division. (TR 600.) City lawyer Waggoner further stated that it would not be necessary for Spidle to call the entire staff of accounting division. In response to the Citys stipulation, Ms. Spidle limited her case to the following employees who are African-American: Michael Johnson (former supervisor), Henry Young

(former supervisor), Betty Griggs (promotion to Principal Accountant); Marilyn Chapman (new hire and promotion to Senior Accountant); Mary Clark (promotion), Jesse Tarver, Erica Jones (new hire and promotion), Mary Garrett (promotion from Engineering), Shoneya Gamble (new hire). The testimony of the following witnesses were deemed credible by the hearing officer: and Erica Jones (new hire and promotion),

29 (1) Bettye Griggs, a 26-year Finance Department employee, testified she took a

voluntary demotion to transfer to a vacancy in the General Accounting Division under Mrs. Spidle. Mrs. Griggs' position was subsequently

surveyed and upgraded by the Personnel Board, and Mrs. Griggs qualified and received the upgrade. Mrs. Griggs was recommended for the upgrade by Mrs. Spidle. In the years she had known Mrs. Spidle, Mrs. Griggs

testified she "never had an issue with Mrs. Spidle in that area" (treatment of blacks) and was "surprised by the charges and it has just never been my experience." (TR at 571-572)
(2) Mary Garrett, an African-American, was promoted from the Engineering

Department to General Accounting and worked for 12 years until her retirement. Mrs. Garrett testified Mrs. Spidle was approachable and that she had often sought and received advice from her. (TR at 581 and 586-587). Mrs. Garrett opined that she didn't "know anything bad to say about her." (TR at 588) Mrs. Garrett testified that she was never interviewed as part of the investigation; and if she had been asked to do so, she would have told the investigator what she testified to at the hearing. (TR at 590) Mrs.

Garrett, who sat in close proximity to Mr. Bowman and Mrs. Taylor for a period of her work career, testified neither one ever spoke to her about

30

problems with race relations while under the direction of Mrs. Spidle. (TR at 583-584)
(3) Shaneya Gamble, an African-American, testified that she began her career

with the City as a 19-year old and received training opportunities and support from Mrs. Spidle until she received a promotion to the Engineering Department. Mrs. Gamble testified that she received encouragement and

assistance from Mrs. Spidle as well as her other supervisors to continue her education which resulted in her ultimately receiving a master's degree. She summed up her sentiments with the statement : "I had great experience in General Accounting. I feel like if it wasn't for me starting with the City at that age and people grooming me, I wouldn't be where I am right now." (TR at 597).
(4) Marilyn Chapman, an African-American, testified she was hired in 2002

and promoted in 2003 based on the recommendation of Mrs. Spidle. (TR at 610-611) Mrs. Chapman relayed her experience in the Division as

"pleasant" (TR at 612) and that she never sensed any conflict between races "because it was the majority of African Americans there." (TR at 613) She further testified that during her eight years of employment under Mrs. Spidle, not one of her colleagues had expressed to her they felt wronged

31

because of their race. (TR at 613)

(5) Jessie Tarver, an African-American, testified that during her tenure in

General Accounting while under Mrs. Spidle's direction from 1992 to 2005 at retirement, she "never, never" sensed any discord between the races, she "never" saw any friction between herself and Mrs. Spidle that would have led her to believe Mrs. Spidle had problems relating to African-Americans. (TR at 625-626) She summed up her experience in the General Accounting Division as very satisfactory, a very good environment, and very cordial. (TR at 628)
(6) Mary Clark, an African-American, worked in General Accounting for 20

years until her retirement, 18 of which were under the direction of Mrs. Spidle. (TR at 628-629) Mrs. Clark testified she was recommended by Mrs. Spidle for a promotion and that she was "thankful to Ms. Spidle (she) got the position." (TR at 633-634) Mrs. Clark testified there was never a time when she felt unable to work with Mrs. Spidle because of racial tension. (TR632). Mrs. Clark was never afforded an interview nor an opportunity to offer her opinion during the "investigation" of Mrs. Spidle. (TR at 635-637) CONCLUSIONS In light of the forgoing, Mrs. Spidle submits that substantial legal evidence

32

supports the decision of the Jefferson County Personnel Board. Accordingly, its decision is due to be affirmed by this court. Gayle H. Gear Attorney for Respondent/Appellee Virginia Spidle CERTIFICATE OF SERVICE Ii hereby certify that the foregoing document was filed in of record and a copy of same was mailed to Steven Fitts, Hand Arendall. 2001 Park Place North, 1200 Park Place Tower, Birmingham, Alabama. 35203. An e-mail of same was sent to Laura Nettles, counsel for the Jefferson County Personnel Board. ________________________________