IN THE PERSONNEL BOARD OF JEFFERS\ON COUNTY, ALABAMA CITY OF BIRMINGHAM FINANCE DEPARTMENT Complainant, vs. VIRGINIA E. SPIDLE Respondent.

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Case No. DA-2012-1878

RESPONDENTS OPPOSITION TO MOTION TO STAY Virginia Spidle files this in opposition to the City of Birminghams Motion to Stay. On January 10, 2012, the Jefferson County Personnel Board ordered the reinstatement of Mrs. Spidle.1 On January 30, 2012, within days of Mrs. Spidles reinstatement, the City terminated Mrs. Spidle again. Mrs. Spidle timely filed opposition because the Citys disciplinary action was taken in retaliation after the Personnel Board ruled to reinstate her employment. Spidle also reported to the Personnel Board that the January 30, 2012 charges were subject to res judicata, judicial estoppel, issue preclusion, and fact preclusion. In further retaliation, the

The Boards hearing officer conducted a four-day hearing on the matter over the course of five months. July 13 & 14; September 27, November 17, 2011.
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City has not paid Mrs. Spidle her back pay for the fifteen-month period during which she was pursuing her appeal to the Personnel Board (based on the October 26, 2010 termination). The City did not timely file for reconsideration of the Boards January 10, 2012 decision reinstating Mrs. Spidle (hereinafter the first termination action). Nor did the City timely serve a notice of appeal with the Director of the Personnel Board. This jurisdictional issue is pending before the Circuit Court. Spidles Motion to Dismiss the Citys appeal along with a hearing on the merits of the Citys appeal is set to be heard on May 29, 2012. The City belatedly seeks to have the Personnel Board stay Mrs. Spidles appeal of second disciplinary action (based upon the January 30, 2012 termination) until the Circuit Court rules on the Citys appeal of the Boards January 10, 2012 Order reinstating her employment. The City claims it is concerned about judicial economy and conservation of resources. The Citys actions throughout belie this claimed concern for conservation. Its filings before the Personnel Board and the Jefferson County Circuit Court are more in keeping with an employer trying to

starve Mrs. Spidle out of a job.2 Mrs. Spidle timely appealed the October 26, 2010 termination to the Jefferson County Personnel Board. As reflected in the record of the first disciplinary appeal, the City resisted furnishing requested discovery and formally sought and received delays for extended periods. Outside counsel for the City informed witnesses on behalf of Mrs. Spidle that they could not speak with her lawyer outside their presence. While this oppressive action was later retracted, the witnesses, many of whom were current employees, felt insecure. The first day of testimony began ten months after Mrs. Spidle filed her appeal to the Personnel Board. Leading up to the first day of trial, the City filed motions to strike nearly all witnesses and documents sought by Mrs. Spidle in her defense against the Citys allegations. The hearing consisted of four days of testimony spread out over a five-month period. In light of the Citys past practice, there can be no reasonable expectation that the City will adjust its litigation strategy that money and time are unlimited in its Mrs. Spidle returned to work on January 23, 2012. She was assigned to a vacant office in the Tax and License Division and assigned menial tasks. The City has not paid Mrs. Spidle back wages which are approximately $140,874.40. Instead the City filed a motion to stay payment with the Jefferson County Circuit Court. That motion has been suspended. Spidle remained unemployed throughout the appeal period (as she does today) without health insurance.
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persecution of Mrs. Spidle. Thus, any claim that the City is concerned about preserving time and resources is not worthy of belief in light of its actions during the first appeal. Mrs. Spidle objects to any delay of the second termination hearing on the following additional grounds. FIRST: The Citys Motion to Stay the current Personnel Board hearing should be considered in context of a separate City motion recently filed in the Circuit Court, asking the three-judge panel to remand to the Personnel Board its January 10, 2012 Decision in order for the Board to clarify its inconsistent, facially invalid opinion. (See Motion to Remand filed with the Jefferson County Circuit on March 21, 2012: CV-2012-00039). In its Motion to Remand, the City declared that the Personnel Board made glaring errors of both law and fact. The City is asking the Circuit Court three-judge panel to instruct the Personnel Board to alter and/or clarify its position with regard to hostile work environment and/or discrimination claims, examine and explain its analysis of the investigations of Spidle and other EEOC and discrimination claims involving Spidle, and alter and/or clarify appropriate measures to be taken. (Motion to Remand at page 8). In its motion to
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have the matter returned to the Personnel Board, the City failed to inform the Circuit Court that these arguments had been, in fact, presented to the Personnel Board in written objections and forcefully argued on January 10, 2012. SECOND: The Citys Motion to Stay should also be examined in light of a previous City motion filed with the Circuit Court. Immediately following its appeal to the Circuit Court, the City moved for an expedited hearing and a stay of payment of Spidles fifteen months of lost pay and benefits. The Court ordered an expedited record; the Personnel Board promptly prepared the record on appeal. A hearing on the Citys appeal is set on May 29, 2012. As stated above, the City has asked the Circuit Court to remand the appeal record to the Personnel Board for further review and clarification. In effect, the City seeks to have the first termination action reheard by the Personnel Board at the same time asks the Personnel Board to stay the second termination action until the ultimate determination has been made on the appeal of her first termination. The City clearly seeks to delay any relief to Mrs. Spidle. Such maneuvers clearly flaunt the Personnel Board stated mission to assure a prompt resolution of hearing appeals. In effect, upon obtaining an immediate hearing date before the three-judge panel, the City reversed course
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and belatedly asks for the entire matter to be returned to the Personnel Board for clarification of its Decision. THIRD: A prompt hearing on disciplinary matters before the Personnel Board is a core principle in the merit system. A fair hearing is prompt and within reach of an employee financially and otherwise. The City has engaged in litigation warfare against a merit employee with 24 years of service and an unblemished employment record. After the City failed to prove the charges against Mrs. Spidle following an extensive hearing, the City terminated her again, claiming it had found new and different evidence to support termination. It is tragic that a disciplinary system designed to assure fairness can be torqued by an employers application of unlimited government resources (in attorney time which translates into taxpayer money) to the detriment of a merit employee, one who has never been charged with any disciplinary infraction until the installation of a new City administration in early 2010. In light of the foregoing, Mrs. Spidle respectfully requests that the Personnel Board deny the Citys Motion to Stay. This case should expeditiously go forward under t\he supervision of a hearing officer. At this juncture, the Personnel Board
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has not named a hearing officer and dates for a hearing have not been established. (A prehearing is currently scheduled for May 23, 2012) Since October 26, 2010, with the exception for a brief period of reinstatement, Mrs. Spidle has remained unemployed and without health insurance. Mrs. Spidles treatment does not bode well for other merit employees. Employees cannot reasonably feel secure in their jobs when an employer with unlimited resources can overwhelm the appeal process, manipulate delays, and diminish the protections of the merit system. Respectfully submitted: Gayle H. Gear Attorney for Respondent Virginia Spidle Copy sent by e-mail to \ Stephen Fitts, Hand Arendall