Alabama State Personnel Board v. Hancock - Alabama Appellate

51 Pages·2013·0.16 MB·English

REL: 12/20/2013
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2013-2014
_________________________
2120091
_________________________
Alabama State Personnel Board
v.
Cheryl Hancock
_________________________
Cheryl Hancock
v.
Alabama State Personnel Board
Appeals from Montgomery Circuit Court
(CV-11-49)
MOORE, Judge.
This appeal arises from a judgment of the Montgomery
Circuit Court ("the trial court") reversing the decision of
2120091
the Alabama State Personnel Board ("the Personnel Board"),
which had affirmed the termination of the employment of Cheryl
Hancock, an employee of the Coffee County Department of Human
Resources ("the Coffee County DHR"). Hancock has filed a
conditional cross-appeal.
Procedural Background
Brandon Hardin, the director of the Coffee County DHR,
initially reprimanded Hancock in writing on October 11, 2007,
for alleged insubordination. Hancock responded by sending a
rebuttal letter to Hardin on October 18, 2007; that letter
contained some remarks to which Hardin took offense. On
October 22, 2007, Hancock made certain statements to
representatives of a child-advocacy center that Hardin
considered to reflect negatively on the Coffee County DHR's
administration. Based on those remarks and statements, Hardin
issued to Hancock a letter dated November 9, 2007, charging
Hancock with disruptive conduct and insubordination. Hancock
initially requested a hearing on the charges, but
subsequently, on the advice of counsel, she agreed to waive
her hearing rights and to accept a 14-day suspension effective
January 9, 2008.
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On February 5, 2008, Hardin issued a letter to Hancock
charging her with improperly disclosing confidential files and
information of the Coffee County DHR to a third party,
insubordination for having accused Hardin of conspiring to
terminate Hancock's employment, and making unauthorized
personal telephone calls during work hours so as to be
inattentive to her job. On April 10, 2008, Hardin issued
another letter to Hancock charging her with abusing her sick-
leave and compensatory-time privileges and using work and
compensatory time to make excessive personal telephone calls.
On August 7, 2008, Hardin issued a third letter to Hancock
charging her with using abusive or threatening language,
disruptive conduct, and insubordination for informing two
coworkers that she could cause the termination of their
employment. Hancock began serving a mandatory leave on August
12, 2008. Finally, on August 13, 2008, Hardin issued a fourth
letter to Hancock charging her with having used further
abusive or threatening language toward a coworker, disruptive
conduct, and insubordination.
An independent hearing officer conducted disciplinary
hearings regarding the aforementioned charges on April 30,
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September 29, and October 7, 2008. The hearing officer
determined that the Coffee County DHR had presented sufficient
evidence to warrant the termination of Hancock's employment.
Hardin issued a letter to Hancock, dated December 3, 2008,
notifying her that her employment had been terminated based on
the findings and recommendation of the hearing officer.
Hancock appealed to the Personnel Board on December 12,
2008. The Personnel Board appointed an administrative law
judge to hear the appeal. The administrative law judge ("the
ALJ") conducted evidentiary hearings over four days in June
and July 2009, during which 21 witnesses testified and the
parties submitted thousands of pages of exhibits. On October
19, 2010, the ALJ issued a 41-page recommendation to the
Personnel Board. The ALJ found that the evidence did not
sustain the charges of disclosing confidential files and
information, of making unauthorized personal telephone calls,
and of being inattentive to the job, but that sufficient
evidence did prove that Hancock had committed acts of
insubordination and disruptive conduct so as to justify her
dismissal. The ALJ also concluded that, although it appeared
that Hancock had abused her sick-leave and compensatory-time
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privileges, it was unnecessary to decide that charge given the
findings relating to her insubordination and disruptive
conduct. The Personnel Board adopted the recommendation of
the ALJ and issued its final order upholding Hancock's
dismissal on November 17, 2010.
On December 17, 2010, Hancock notified the Personnel
Board that she would appeal its order. See Ala. Code 1975, §
41-22-20(b) & (d). On January 18, 2011, Hancock sought
judicial review of the actions of the Personnel Board by
filing a complaint with the trial court.1 See § 41-22-20(d).
On July 27, 2011, the trial court entered a judgment reversing
the Personnel Board's decision and remanding the case to the
Personnel Board with instructions to reinstate Hancock to her
employment. The Personnel Board appealed to this court; this
court reversed the trial court's judgment and remanded the
case for the trial court to enter a judgment stating its
reasons for reversing the Personnel Board's decision. See
1Pursuant to § 41-22-20(d), Hancock had 30 days, or until
January 16, 2011, to file her petition for judicial review;
however, because January 16 fell on a Sunday and the trial
court was closed due to a legal holiday on January 17, see
Rule 6(a), Ala. R. Civ. P., Hancock timely filed her petition
on January 18, 2011. See Ala. Code 1975, § 1-1-4.
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Alabama State Pers. Bd. v. Hancock, 93 So. 3d 143 (Ala. Civ.
App. 2012). The trial court entered a revised judgment on
October 16, 2012, in accordance with this court's mandate.
The Personnel Board appealed from that judgment on October 26,
2012; however, because Hancock filed a postjudgment motion
with the trial court on November 15, 2012, the appeal was held
in abeyance pending a ruling on that motion. See Parker v.
Parker, 946 So. 2d 480, 485 (Ala. Civ. App. 2006) (holding
that a notice of appeal is held in abeyance pending the
resolution of a timely filed postjudgment motion filed after
the notice of appeal was filed). The trial court denied the
postjudgment motion on February 7, 2013; Hancock filed a
cross-appeal on March 21, 2013.2
2Rule 4(a)(2), Ala. R. App. P. provides: "If a timely
notice of appeal is filed by a party, any other party may file
a notice of appeal within 14 days (2 weeks) of the date on
which the first notice of appeal was filed, or within the time
otherwise prescribed by this rule, whichever period last
expires." Hancock did not file her cross-appeal within 14
days of the date the Personnel Board filed its notice of
appeal, but she did file her cross-appeal within 42 days of
the date the judgment became final, so her cross-appeal is
timely. See HealthSouth Corp. v. Brookwood Health Servs.,
Inc., 814 So. 2d 267 (Ala. Civ. App. 2000) (construing Rule
4(a)(2) as providing that a cross-appeal must be filed within
14 days of a timely notice of appeal, or within 42 days after
the trial court's judgment becomes final, whichever is later).
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The ALJ's Findings
The ALJ recommended that Hancock be dismissed from her
employment solely on the charges of insubordination and
disruptive conduct. The ALJ found that, since Hardin had been
appointed director of the Coffee County DHR in 2006, Hancock
had consistently undertaken "to demean and degrade Hardin in
a confrontational manner" and had "attempted to undermine his
authority in the office with other employees and those that
came in contact with [the Coffee County DHR]." The first
instance of such conduct expressly mentioned by the ALJ
occurred in early October 2007. Hardin testified before the
ALJ that he had anticipated that he would need to fill the
quality assurance ("QA") position of a retiring employee in
October 2007 and that Hancock had begun working with the
retiring employee in order to potentially transition from her
job as a social worker conducting child-abuse-and-neglect
investigations into the QA position. However, at some point
in September 2007, Hardin's superiors informed him that the QA
position could not be filled. According to Hardin, after he
informed Hancock of that development, she came into his office
on three different days questioning why he had made that
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decision and, on one occasion, had stated that she "was going
to tell her daddy" on him. Hardin further testified that
Hancock had also told him that he needed to stop disciplining
one of her coworkers, Dawn Mayberry, and that he was going to
be sorry for what he had done to Hancock.
On October 4, 2007, Hancock sent Hardin a letter in which
she expressed disappointment with Hardin's leadership, noted
that many people in the community did not believe that the
Coffee County DHR was performing its functions adequately,
questioned why Hardin was mistreating her and rewarding
another employee she considered to be substandard, and
informed Hardin that he was harming her emotional and physical
health by making her job unduly stressful. Hardin responded
in writing on October 11, 2007, by officially reprimanding
Hancock for what he characterized as her unprofessional tone
and comments about him and her coworker, her unauthorized
critique of his staffing decisions, her disruptive and
factually unsupported accusations that the community looked
negatively upon the Coffee County DHR, and her breach of
confidentiality regarding personnel matters. Hardin ordered
Hancock to report to him the factual basis of any complaints
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she had received about the Coffee County DHR and to submit to
the Employee Assistance Program in order to improve her
conduct and to obtain assistance with any emotional or
physical health problems she was experiencing.
On October 18, 2007, Hancock sent Hardin a rebuttal
letter in which she stated that Hardin had "badgered" her into
agreeing to take the QA position only to wrongfully give it to
another less-experienced employee, that she had not made any
unprofessional comments when inquiring as to the reason for
that decision, that Hardin was being unrealistic in asking her
not to field complaints from the community, that she had not
discussed personnel matters with anyone but Hardin, and that
she had been reprimanded without foundation. In that letter,
Hancock, "[w]ithout meaning any disrespect whatsoever to
[Hardin] regarding his age or experience," noted that Hardin
had been less than nine years old when she had begun working
for the Coffee County DHR. The ALJ found that the content of
Hancock's letters demonstrated Hancock's unwillingness to
submit to Hardin's authority and her disregard for Hardin's
leadership and implied a discriminatory attitude toward Hardin
based on his age and experience. The ALJ further found that
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Hancock's remarks were disruptive, disrespectful, and
insubordinate.
On October 22, 2007, an employee of the Pike County Child
Advocacy Center asked Hancock whether the Coffee County DHR
would open a new case. Hancock testified that she had simply
informed the employee that she was unsure whether a new file
could be opened because of the new rules that had been
implemented by the Coffee County DHR that made it more
difficult to open cases. Hardin testified, on the other hand,
that Hancock had questioned whether the Coffee County DHR's
supervisors were making good decisions when deciding whether
to open a case and that he had charged Hancock at the time
with disrespecting the supervisors' judgments by expressing
doubt that a case would be opened. The ALJ found that Hancock
had made "inappropriate statements" regarding her superiors at
that time.
Hardin issued a letter dated November 9, 2007, to Hancock
charging her with disruptive conduct and insubordination based
on the statements contained in her rebuttal letter and the
statements made by Hancock during her meeting with the
employee of the Pike County Child Advocacy Center. The
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