2006 NAC 105 Colbert County Board of Education and William G. McBrayer

Title: Colbert County Board of Education and William G. McBrayer
Date: June 30, 2006
Arbitrator: Edward J. Gutman
Citation: 2006 NAC 105

III. STATEMENT OF THE CASE

On January 24 Superintendent Hudson recommended to the Board that Mr. McBrayer be suspended for seven days. The notice stated that a board meeting on the proposed suspension would be held on February 16 at which Mr. McBrayer would be afforded the opportunity to speak to the board "on matters relevant to the suspension." In addition, the notice advised Mr. McBrayer that he would have the right to counsel and to have a court reporter record his statement(s) "both at his expense." (Exhibit A)[ii]

Mr. McBrayer requested "an informal" conference with the board to contest the recommended suspension, and a conference was conducted on February 16. Mr. McBrayer elected not to have his statement recorded. Following the conference, the Board voted to uphold the superintendent's recommendation to suspend Mr. McBrayer. (Exhibit H), and on March 3 he filed a Notice of Contest of his suspension in accordance with Alabama Code §36-26-112. [iii]

The Undersigned received an appointment by the Federal Mediation and Conciliation Service on April 5 to serve as Hearing Officer in this contested suspension matter.

In accordance with §36-26-113, both parties submitted "written material relevant to the action," described in the statute as "evidence, information, and/or other documents supportive of or in contravention to the action." On May 2 the Employer filed a Motion To Strike affidavits which had been submitted to the Hearing Officer on behalf of Mr. McBrayer.

In conformity with § 36-24- 113 the parties filed "written briefs on the factual and legal issues relevant to the action." In his brief, Mr. McBrayer moved to strike "all submissions of the school board inconsistent with § 36-26-111".

The parties submitted supplementary memoranda in response to a request from the Hearing Officer to clarify the evidentiary basis of the Board's decision to uphold the Superintendent's recommendation to suspend Mr. McBrayer.

The matter is now set for a decision.

IV. PERTINENT PROVISIONS OF ALABAMA LAW

Ala. Code § 36-26-111, "Other disciplinary action . . . "

"An employee on nonprobationary status may be suspended for seven days or less without pay . . . for just cause . . . Such other disciplinary action shall not be made for political or personal reasons. The superintendent shall give written notice to the employing board and the employee of the superintendent's intention to recommend such a disciplinary action. Such notice shall state the reasons for the proposed action, shall contain a short and plain statement of the facts showing that the disciplinary action is taken for just cause, and shall state the time and place for the board's meeting on the proposed disciplinary action . . . The notice shall inform the employee that in order to request a conference with the board, the employee must file a written request with the superintendent within 15 days after the receipt of such notice.

Ala. Code § 36-26-112

(a) At the conference provided in Section 36-26-111 . . . the employee, or his or her representative, shall be afforded the opportunity to speak to the board on matters relevant to such disciplinary action. The employee shall have the right to counsel and to have a court reporter record his or her statement, both at the expense of the employee.

(b) Thereafter, the board shall determine whether such disciplinary action shall be effectuated. Regardless of whether or not the employee elects to have a conference with the board, if the board votes to take disciplinary action against the employee, the superintendent . . . shall inform the employee of the right to contest the action by filing with the superintendent a written notice of contest. . . .

Ala. Code § 36-26-113

If notice of contest is filed . . . , the hearing officer shall immediately cause notice to be given to the parties of the date for submission of written materials relevant to such action . . . No less than 30 days before such date, the parties shall submit to the hearing officer, with a copy to the opposing party, evidence, information, and/or other documents supportive of, or in contravention to, the action. No later that such date, the parties shall submit written briefs on the factual and legal issues relevant to the action. The hearing officer will consider the case on the written submissions. The hearing officer shall determine whether the evidence was sufficient for the board to take the action and shall render a written decision, with findings of fact and conclusions of law.

V. EVIDENCE, INFORMATION, AND/OR OTHER DOCUMENTS SUPPORTIVE OF, OR CONTRAVENTION TO, THE ACTION SUBMITTED BY THE PARTIES TO THE HEARING OFFICER

A. The Following Documents Marked as Exhibits were Submitted by the Board

Exhibit A The letter to the Board from Superintendent Hudson dated January 24, 2006 recommending a seven-day suspension for Mr. McBrayer

Exhibit B Board grievance Procedure

Exhibit C Mr. McBrayer's Personnel Fact Sheet

Exhibit C-1 Letter dated October 4, 1991, advising Mr. McBrayer of transfer from mechanic to shop foreman.

Exhibit D Use of School District Owned Equipment and Materials

Exhibit D-1 Letter dated August 29, 2003 suspending Mr. McBrayer for 15 days for removing school property for his own use.

Exhibit E Letter dated March 3, 2006 from Mr. McBrayer to Superintendent Hudson contesting seven day suspension.

Exhibit F Board Code of Conduct

Exhibit G Letter dated February 7, 2006 from Mr. McBrayer to Superintendent Hudson requesting an informal conference with CCBE.

Exhibit H Letter dated February 17, 2006 from Superintendent Hudson to Mr. McBrayer notifying him that CCBE upheld recommendation for suspension.

Exhibit I Letter dated March 3, 2006 from Mr. McBrayer to Superintendent noting contest of suspension.

Exhibit J Mr. McBrayer's written statement dated 7-15-2003 applying for position of Director of Transportation.

Exhibit K CCBE Sick Leave Policy

Exhibit L Undated statement signed by Aubrey Kimbrough describing confrontation with Mr. McBrayer on August 4, 2005

Exhibit M Statement dated 1/24/06 signed by employee Jean Bolton describing Mr. McBrayer's alleged insubordination to Mr. Kimbrough.

Exhibit N A memo from Mr. Kimbrough to Superintendent Hudson witnessed by Jean Bolton dated August 20, 2003, describing an incident with Mr. McBrayer that took place on August 30, 2003, about the use of a county vehicle on August 18, 2003.

Exhibit O Letter dated January 23, 2006, from Superintendent Hudson to Mr. McBrayer regarding Mr. McBrayer's leaving his workplace without authorization and warning him of the consequences should he repeat this behavior.

Exhibit P Same as Exhibit L

Exhibit Q "Documentation"signed by Mr. Kimbrough describes an incident with Mr. McBrayer and employee Kathy Berryman that occurred on August 23, 2004.

Exhibit R A handwritten statement by employee Kathy Berryman regarding the August 20, 2004, incident with Mr. McBrayer described in Exhibit Q, Mr. Kimbrough's "Documentation" of August 23, 2004.

Exhibit S Mr. McBrayer's time cards for week of January 23

Exhibit T "Explanation of Absence for Work"

Exhibit U Return to work certification dated 1-19-06

2. The Merits

"Specifically, the complaints lodged against Mr. McBrayer by the superintendent and concurred in by the Board" for the suspension were as follows:

(1) "Insubordination, in that when instructed by his immediate supervisor, Mr. Kimbrough, to report to his office following an incident between Mr. McBrayer and a bus driver, Mr. McBrayer refused to report as directed. (Exhibit "A"). See also (Exhibit "L")" [iv]

Exhibit M is a compilation of three notes signed "Jean Bolton" who is a co-worker of Mr. McBrayer, dated 1/24/2006. The note dated "January 20 - 8:48 a.m." states that Mr.McBrayer came into her office and reported to Mr. Kimbrough on an incident that he had with bus driver Kenneth Thompson. As Mr. McBrayer walked out of the office, Mr. Kimbrough "asked" him twice to come back, but Mr. McBrayer closed the door and went back to work.

(2) Mr. McBrayer "has great difficulty getting along with his peers and with his supervisory personnel to the extent that he causes discontent and turmoil among his fellow workers and in his relationships with his supervisors, (Exhibit "A"). See also (Exhibit "P") and (Exhibit "Q")"[v]

Exhibit P is a memo to Mr. McBrayer from Mr. Kimbrough regarding an incident that occurred on August 4, 2005, when Mr. McBrayer allegedly refused to cooperate with him on moving furniture and books at one of the schools. Allegedly, when Mr. McBrayer questioned why he was being asked to do this work, he used vulgarity. According to the memo, Mr. Kimbrough warned him that if he couldn't talk about "this" without cursing, he would ask the Board to give him seven days off without pay.

Mr. McBrayer "stated openly" before the Board of Education at the informal conference: "I don't get along with Mr. Kimbrough too good" and "It's hard for me to talk with Mr. Kimbrough." He also "conceded that [he] has some problems with other employees over time." (CCBE Brief at p. 7)

Exhibit Q, entitled "Documentation" and signed by Mr. Kimbrough, states that on August 23, 2004, Mr. McBrayer reported to him that he spoke to employee Kathy Berryman, a school bus driver, about a bus problem and she cursed at him. Mr. Kimbrough later spoke to her and she told him that Mr. McBrayer was cursing too.

In addition, as further support for Complaint 2, the CCBE Brief alleged that during a "verbal altercation" with Mr. Thompson in the presence of Mr. Kimbrough, Mr. McBrayer allegedly said to Mr. Thompson, "sometime you don't need your brain," and when Mr. Thompson sought to speak, Mr. McBrayer told him to - "Shut your damn mouth." At the conference with the Board, Mr. McBrayer acknowledged telling Mr. Thompson to "shut your mouth" but denied using the word "damn." Mr. McBrayer also told the Board that he immediately apologized. (CCBE Brief at p. 7)

Also, purportedly in support of Complaint 2, the CCBE Brief recited the following:

Up until 2003, Mr. McBrayer, who has been employed by CCBE since December 1971, had been a "satisfactory" employee. He was passed over for a promotion to a supervisory position in 1988. He also applied and was rejected for the same promotion in 1973 and again on July 15, 2003. Having been passed over for these promotions, 2003 was a "pivotal year" in Mr. McBrayer's employment history. He began to "evidence an attitude that he had been mistreated in some way or overtly discriminated against." However, he never filed a grievance under the CCBE grievance procedure. He became "argumentative" with his supervisors and, on more than one occasion, solicited his supervisor to "meet him outside." He wrongfully used property of the school system for his own personal gain. He began the habit of leaving his workplace without the knowledge or permission of his supervisor and failing to return until the next work day, "usually" claiming sick leave in violation of the sick leave policy "which got the attention of the superintendent." He became "unbearable" in his relationship with some of the other co-workers. He was "rude," both with his supervisor and his peers. (Exhibits M and R[vi]) His speaking language was "offensive." (Exhibit L) He became "insolent" toward his supervisors (Exhibit N[vii]) "to the point that it was believed by some of the administration personnel of the school system that he should be terminated but after consultation with the Board's legal counsel it was determined that CCBE would "try one more time to bring Mr. McBrayer around to become again an asset to the bus barn work force."(Employer's brief at p.2)

(3) Mr. McBrayer "has left his job site without authority to do so and has failed to advise his supervisory personnel of his whereabouts, not to return until the next day," (Exhibit "A"). See also (Exhibit "O")."

Mr. McBrayer "has over time and on numerous occasions clocked out from work during the day without notice or authorization from anyone not to be seen again until the next work day or later on the same day." Exhibit S, his time card for the week ending January 28, is "only by way of example and the most recent occasion which finally prompted the superintendent to take charge and write to Mr. McBrayer in an effort to scold and document that the practice would no longer be tolerated. see (Exhibit"O")" (Employer Brief at p. 6) (the January 23 warning to Mr. McBrayer that a recurrence of this behavior would be considered a "quit" and that he "would not be permitted to return.")

Mr. McBrayer frequently violates the Board's sick leave policy. See Exhibit T, the accounting of his sick leave usage for December 2005 and January 2006.

"(F)rom all of the foregoing in its totality, at least two conclusions may reasonably be reached" - (1) for many years Mr. McBrayer was a satisfactory employee, but (2) "commencing in around 2003, after he had been passed over" for a promotion, "his attitude and behavior abruptly altered and he became a difficult employee in nearly every sense of the word. He has become rude and boisterous. He has tried to manipulate the system by his absences for sick leave - violating the policy on a regular and frequent basis. He is in nearly constant conflict with his immediate supervisor and, by his own admission, does not get along with Mr. Kimbrough too good. He admits too, that he has had some problems with other employees over time." (CCBE Brief at p. 7)

All of the exhibits submitted to the hearing officer under letter cover dated April 28, 2006, with the exception of the Board policies and the Certificate to Return to Work/School (Exhibit U) were before the Board at the time of the hearing contained in Mr. McBrayer's personnel file." (Emphasis supplied)

B. Mr. McBrayer

2. Motion to Strike

Mr. McBrayer moves to strike all submissions of the Board inconsistent with the requirement of § 36-26-111, that a notification of an intention to recommend discipline must state the reasons for the recommendation and "shall contain a short and plain statement of the just cause . . ." A notice of intention is a superintendent's only opportunity to submit evidence. However, Superintendent Hudson's January 24 notification of intention enumerated only three "reasons for the recommended suspension," but the notification did not attach or reference documents or "evidence" to validate the reasons for the recommendation. (Exhibit "A") Thus, the notice is the only "evidence" that the Hearing Officer may consider. Mr. McBrayer acknowledges that CCBE's counsel spoke to the Board and "talked about what he had concluded," and that he "did reference some individuals he had spoken with.", but, he contends, "allegations by themselves are not sufficient evidence," and the evidence before the Hearing Officer "is still limited to the January 24, 2006 letter."

2. The Merits

If the Hearing Officer is to consider the CCBE Exhibits, the only support for Complaint No. 1- insubordination - is Exhibit M, the notes of Jean Bolton, signed 1/24/2006. The notes state that on January 23 in a "discussion" between Mr. Kimbrough and Mr. McBrayer, Mr. McBrayer, told Mr. Kimbrough that he did not hear him when he asked him to come back into his office. Thus, Exhibit M contradicts the claim that Mr. McBrayer was insubordinate to his supervisor.

The supports for Complaint No. 2 were Exhibits D-1[viii], L[ix], N[x], Q and R[xi]. However, Mr. McBrayer was never provided with copies of Exhibits N, Q and R, nor were they in his personnel file. Moreover, not only did they refer to events remote in time, but there was no "short and plain statement" in Superintendent Hudson's January 24 letter to the Board referencing these documents as part of the proof to show that the superintendent intended to rely upon them to establish that the suspension was recommended for "just cause."

With regard to Complaint No. 3, CCBE submitted Exhibit O, the warning letter of January 23 from the superintendent to Mr. McBrayer; Exhibit S, Mr. McBrayer's time cards for the week ending 1-28-06; Exhibit T, the Explanation of Time Absent From Work report for absence starting in November 2005, and Exhibit U, the Certificate to Return to Work issued to Mr. McBrayer by the Avalon Medical Center for January 23, 2006. The latter answers the complaint of leaving the job site.

VIII. DECISION ON THE MOTION

After careful consideration of the Motions, I will deny both.

Section 36-26-111 permits an employee who is recommended for a seven-day suspension the right to speak to the board and to have "his statement" recorded by a court reporter - at his own expense. Following the conference, the board will determine whether to approve the recommendation. If the board upholds the recommendation, the employee has the right to contest the board's decision and have the matter decided by a hearing officer on the basis of "written materials relevant to such action" consisting of "evidence, information, and or other documents supportive of, or in contravention to, the action." Upon consideration of these written submissions the hearing officer "shall determine whether the evidence was sufficient for the board to take the action and shall render a written decision, with findings of fact and conclusions of law . . ." (emphasis supplied) However, the Statute states that even if the employee elects not to have a conference with the board, the employee has the same right to contest an adverse board ruling.

As CCBE"s Brief quite aptly explained, "a fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute." Thus, a conflict over the meaning of a statute should be resolved if possible based upon the plain meaning of the words used in the statute. DeKalb County LP Gas Co. V. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala. 1998). See also Ex Parte Jackson, 1021330(Ala., Nov. 21, 2003) (the statute that the court was charged with construing was "quite confusing and internally inconsistent.")

After careful thought, I find that the arguments in support of both Motions are strained readings of the law and at odds with its purpose. The plain meaning of the words in the FDA gives employees the right to contest adverse actions against them. A construction of a statute that would result in a forfeiture of that right would surely be contrary to the legislature's intent. To adopt CCBE's construction of the Statute, Mr. McBrayer would be denied a right of appeal which the Alabama Legislature intended that school systems in the State must provide. A forfeiture of that right cannot be imposed on an employee because he elected the statutory option not to have the statement he makes to the Board in his conference recorded by a court reporter at his own expense. [xii] Granting CCBE's motion would result in such a forfeiture. [xiii]

I find the basis of Mr. McBrayer's Motion equally unpersuasive. While due process would seem to require that a person charged with conduct that could lead to discipline should be given a more detailed description of the "evidence" against him, the statutory process afforded in the case of a seven-day suspension does not provide the safeguards of due process that a hearing would guarantee in which "evidence" would consist of sworn testimony subject to cross examination and proper document production. Moreover, the Statute's direction that the parties submit documents and "evidence" to the hearing officer would be meaningless if Mr. McBrayer's contention were valid. Indeed, if these documents were excluded, the only basis that the Hearing Officer would have for making a decision would be the arguments of the parties in their briefs. Clearly, arguments are not "evidence."

To be sure, however, I have a problem with the notes of employees submitted by CCBE as they suffer from the same due process failing as the McBrayer affidavits. However, to reject all documents submitted to the Hearing Officer would leave no basis for a decision. Accordingly, the "findings of fact" upon which this Decision is predicated are drawn from all of the documents submitted to the Hearing Officer.

IX. FINDING OF FACT

(1) Mr. McBrayer was insubordinate.

Ms. Bolton's note of January 20, states that Mr. Kimbrough was in her office and Mr. McBrayer came in to discuss a business matter with him. After they finished their discussion, Mr. McBrayer raised the subject of an encounter that he had with Mr. Thompson. According to Ms. Bolton's note, Mr. Kimbrough told him to "just go back out in the shop and let it be." Mr. McBrayer started to leave the office but came back and spoke further about his encounter with the bus driver. The note continues that Mr. Kimbrough "said for William to come in his office and they would straighten this out." However, "William had started out the door when Aubrey asked him the second time to come in his office. William closed the door . . . and went back out into the shop." [xiv]

Ms. Bolton's January 23 entry states that she was present when Mr. Kimbrough told Mr. McBrayer that he was recommending him for a seven-day suspension. He explained that when he asked him to come into his office twice, "you just went on out the door." She heard Mr. McBrayer then explain that he is hard of hearing and did not hear Mr. Kimbrough ask him to come back into the office. He told Mr. Kimbrough that his co-workers would confirm that he did not hear well. CCBE's brief questions the credibility of this explanation asserting that in 35 years of employment Mr. McBrayer never said that he was hard of hearing, nor had he ever been diagnosed with a hearing impairment, and he present no evidence to support his explanation of hearing impairment.[xv]

(2) Mr. McBrayer has great difficulty getting along with his peers and with his supervisory personnel to the extent that he causes discontent and turmoil among his fellow workers and in his relationship with his supervisors

CCBE's support for this allegation consists of incidents going back as far as 2003. None were later than August 4, 2005, documented in Exhibit P. This is Mr. Kimbrough's unsworn statement that Mr. McBrayer cursed when Mr. Kimbrough asked him to move some books and furniture, and Mr. Kimbrough warned him that he would ask the board to give him a seven-day suspension without pay "if he could not talk about this without all this cursing." [xvi]

CCBE's Brief also referenced Exhibits Q and R. Exhibit Q is Mr. Kimbrough's unsworn August 20, 2004 "DOCUMENTATION" that Mr. McBrayer accused Kathy Berryman of cursing at him and her claims that Mr. McBrayer cursed at her as well. As shown on Exhibit R, the handwritten, unsworn statement which Kathy Berryman wrote at Mr. Kimbrough's request to describe the August 20, 2004, incident with Mr. McBrayer, she made no accusation that Mr. McBrayer cursed at her.

Also, as detailed above, the CCBE Brief describes insulting comments that Mr. McBrayer allegedly made to Mr. Thompson, on January 20^th. No documentation was provided to confirm these charges.

Nor was documentation furnished to support the CCBE Brief's that McBrayer "stated openly" before the Board of Education at the informal conference that he didn't get along with Mr. Kimbrough "too good, that it was "hard for (him) to talk with Mr. Kimbrough," and he "had some problems with other employees over time." Despite the fact that no transcript was made of the conference, and without any documentation, CCBE's Brief references the above as direct quotes from Mr. McBrayer.

No other "evidence, information, and/or other documents supportive of" the suspension were provided by CCBE to corroborate the accusations made in its Brief that Mr. McBrayer became "unbearable," "insolent," "rude," "boisterous," used "offensive" language, "usually" misused sick leave, "was "argumentative with supervisor, "in constant conflict"with them or "on more than one occasion"asked his supervisor to "meet him outside." These claims too, are undocumented allegations of Counsel.

(2) Mr. McBrayer "has left his job-site without authority to do so and has failed to advise his supervisory personnel of his whereabouts, not to return until the next work day"

The support for this compliant is Superintendent Hudson's January 23 written reprimand to Mr. McBrayer for leaving his job site on January 20, which he called "unacceptable" behavior that would "not be tolerated again." He warned him that engaging "in the same activity in the future" would result in a loss of employment. (Exhibit O)

While, the CCBE Brief states that "Mr. McBrayer has over time and on numerous occasions clocked out from work during the work day without notice or authorization . . ." there is no document support for this accusation .

X. CONCLUSIONS OF LAW

CCBE contends that under Alabama Law, the Hearing Officer "is called upon to determine -- the same as an appellate court does, whether the `court below' correctly concluded the matter based upon the facts and applied applicable law before it at the time of the rendition of its decision." (CCBE Brief at p. 9) According to §36-26-113, however, the hearing officer "will consider the case on the written submissions and shall determine whether the evidence was sufficient" for the board to find that the suspension was "for just cause." Thus, the Alabama Legislature directed that these cases are to be decided based on the "sufficiency of the evidence" not on the appellate standard of "substantial evidence" review.

For the reasons explained below, I find that the"evidence" before the Board was not sufficient and did not support its decision to uphold the Superintendent's recommendation for a seven-day suspension.

In labor relations dispute litigation where, as in the present case, an employer's right to suspend, an employee is limited by a statutory "just cause" requirement, the employer has a two-prong burden. First, the employer must persuade the Hearing Officer that the "evidence was sufficient for the Board to take the action . . . ,," i.e. that the employee engaged in the conduct for which he was suspended. To meet this burden in cases of dismissals or suspensions, the employer must produce clear and convincing evidence that the employee engaged in the behavior described as grounds for the discipline.

If the employer produces clear and convincing evidence that the employee, in fact, engaged in the conduct cited as the basis for the discipline, the employer must complete its burden by satisfying a second component of its burden. The employer must show that the aggregate of the evidence of misconduct warranted the discipline imposed. Thus, the decision on this aspect of the proof scheme depends on the seriousness of the offense.

A. Did CCBE Satisfy its Burden of Producing Sufficient Evidence that Mr. McBrayer Engaged in the Behavior For which CCBE Suspended him?

Here, the conduct that CCBE cited as the basis for the suspension described in its January 24, 2006, notice of intent to recommend suspension - insubordination, disrupting operations and leaving a job site without authority - would be "just cause" for discipline. To sustain the suspension, therefore, the employer's first hurdle was to present clear and convincing evidence that Mr. McBrayer engaged in this objectionable conduct.

(1) Insubordination

Insubordination is defined as not submitting to authority, disobedience, rebellious or mutinous conduct. Broadly defined in the employment context, it is conduct that undermines managerial authority by an unwillingness to submit to authority either through an open refusal to obey an order or through a failure to carry one out. Examples are actively challenging or criticizing a superior's orders, interfering with management, showing open disrespect toward a supervisor, making threats or using coercion or physical violence, using abusive language or making malicious statements, ignoring reasonable instructions.

The "evidence" of Mr. McBrayer's insubordination is Exhibit M, the Bolton notes. While, these unsworn statements purport to describe the alleged insubordination which triggered the recommendation for suspension, they are equivocal. According to the CCBE's reading of the notes, they show that Mr. Kimbrough told Mr. McBrayer to come to his office and Mr. McBrayer ignored him - twice. However, I do not find that they confirm the allegation that Mr. McBrayer was asked twice. It is clear from the notes, though, that it was three days later that Mr. Kimbrough told him that he was recommending him for a seven-day suspension for insubordination. It was then that Mr. McBrayer explained that he is hard of hearing and did not hear Mr. Kimbrough tell him to come to his office and that his hearing deficit could be confirmed by speaking to his co-workers. Nonetheless, without investigating this claim, the next day, Mr. Kimbrough presented him with the written recommendation for suspension - Exhibit "A").

Under no reasonable evaluation, are the Bolton notes on Exhibit "M"clear and convincing "evidence" that Mr. McBrayer showed open disrespect toward Mr. Kimbrough, or that he purposefully ignored his supervisor's instruction. Thus, the Bolton notes on their own or in the context of the other charges against Mr. McBrayer, do not satisfy the criteria needed to support a charge of "insubordination."

(2) Causing discontent and turmoil among his fellow workers and supervisors

The "evidence" of this complaint on which CCBE relies are Exhibits D-1, N, Q and R, which relate to incidents in 2003, 2004 and 2005, and none of which were referenced or documented as support for the suspension in Exhibit A, as required by § 36-26-111. While, as the Court of Civil Appeals of Alabama stated in Colburn v. Tuscaloosa County Board of Education, 688 So. 2d.881 (1997) evidence of past misconduct may be considered in support of later punishment, the earlier misconduct must have a reasonable relationship to the triggering event. Here the event which led directly to the suspension was the alleged insubordination on January 20, 2006, and had no connection - direct or indirect - to those incidents in the earlier years.

The alleged "verbal altercation" that Mr. McBrayer is accused of having with Mr. Thompson during which he told Mr. Thompson to shut his "damn" mouth, was neither referenced in Exhibit A nor was there any supporting documentation.

Mr. McBrayer's alleged acknowledgment to the Board that he did not get along with Mr. Kimbrough "too good" or that he had some problems with some other employees over time " cited in the CCBE Brief did not support the claim that he caused "discontent" and "turmoil"among fellow workers and supervisors. Far more and timelier and substantive "evidence" must be produced to support a claim that an employee caused the level of upheaval or commotion to justify the punishment of loss of pay for any period of time.

Moreover, the overstated description in CCBE's Brief of Mr. McBrayer as "unbearable," "insolent," "argumentative " etc. and the accusations that he "usually" misused sick leave and "on more than one occasion" asked his supervisor to "meet him outside," are not factual "evidence", not confirmed in the documents and cannot be used to justify the charges.

Thus, The Board did not present sufficient "evidence" that Mr. McBrayer "has great difficulty getting along with his peers and with his supervisory personnel to the extent that he causes discontent and turmoil among his fellow workers and supervisors."

The support for this compliant is CCBE's Exhibit O dated January 23, Superintendent Hudson's written reprimand for the clocking out incident in which he call Mr. McBrayer's behavior "unacceptable" and warned him that such behavior "will not be tolerated again," and a recurrence would result in a loss of employment. CCBE argues in its Brief that the January 20 incident was cited "only by way of example and the most recent occasion which finally prompted the superintendent to take charge and write to Mr. McBrayer in an effort to scold and document that the practice would no longer be tolerated." The next day, without any evidence of a recurrence of the alleged misconduct for which he was warned the day before he was suspended for seven days.

By disciplining him further for the same incident, CCBE violated a basic rule of employment litigation which is a counterpoint to the employer's right to discipline for just cause - once discipline for a given offense is imposed, including a written reprimand, additional punishment cannot be imposed for the same offense. Elkouri and Elkouri, 6^th Edition, 980-983. Although in Colburn v. Tuscaloosa County Board of Education, supra, the Court of Civil Appeals of Alabama rejected the concept of "double jeopardy" in civil proceedings, fundamental fairness in the employment context, particularly when a statute imposes a "just cause" requirement, as in the FDA now does, precludes an employer from punishing an employee twice for the same alleged misconduct.[xvii]

Here, there is another reason not to allow CCBE to impose additional punishment. The warning letter of January 23, had the effect of a "last chance" agreement. It said to Mr. McBrayer, your conduct on January 20 was unacceptable but we are giving you another chance and if you engage "in that same activity in the future" you could lose your job. Indeed, CCBE explained in its brief that Exhibit O, the January 23 letter, was the superintendent's "effort to scold and document that the practice would no longer be tolerated." This "scolding" was discipline and may very well have been support for further punishment had he engaged in that same activity in the future. But, to actually impose another discipline the very next day without any evidence that he engaged "in that same activity" again was unjust. [xviii]

As additional support for Complaint No.3, CCBE's Brief states that Mr. McBrayer "frequently violated" the school system's sick leave policy referring to Exhibit T, an accounting of his sick leave use from December 2005 through January 20. However, under no interpreting of the principles of evidence can I find as a fact, that the January 20 incident was only an example of Mr. McBrayer's similar misconduct. Nor could I find as a fact that Mr. McBrayer "frequently violated" the sick leave policy or claimed five days off for personal illness without approval. Rather, my findings of fact must be limited to Exhibit O, the documents reference by CCBE in support of Exhibit A, the charging document.

The factors that must be considered to satisfy this part of the burden include the following: (1) whether the employee knew or should reasonably been expected to know ahead of time that engaging in the behavior would likely result in the discipline he was given, (2) that the discipline was administered following a fair and objective investigation of the facts; (3) that a reasonable relationship existed between the misconduct and the punishment imposed, that is, the punishment must be reasonably related to the seriousness of the offense; (4) that the punishment was reasonably related to insuring or maintaining orderly, efficient and safe operations of the school environs and (5) that the discipline was administered evenhandedly, in a consistent and nondiscriminatory manner; that is, that similarly situated employees have been treated similarly.

In addition, a "just cause" requirement demands that certain minimal essentials of due process be observed. One of these essentials is that the employee had the opportunity to be heard. For this reason, an employer's attempt to use past alleged misconduct, which had never been the subject of discipline or to cite alleged misconduct "by way of example"of similar behavior violates fundamental rules of just cause for, indeed, the basic concept of just cause is notice of wrongdoing and an opportunity to be heard. Merely making a statement in argument without more, cannot be accepted as "evidence."

Here, CCBE, relies on incidents as early as 2003 to support its suspension. But in none of those alleged incidents had Mr. McBrayer, a CCBE employee for over 30 years, been put on notice that the behavior was unacceptable or to contest these accusations in this proceeding. If an employee is to be disciplined in part for past conduct, the conduct must be established by due process and have a rational connection to the later discipline. Here that is not the case.

CCBE's Brief cites the litany of other factors referenced in its narrative, described above which purportedly justified the suspension. However, none of these other factors - attitude problem starting in the "pivotal year" 2003, asking his supervisor to "meet him outside," wrongfully using school property, "habitually" leaving his workplace without permission, abusing sick leave, becoming "unbearable" in his relationship with some co-workers, using offensive language, becoming "insolent" toward his supervisors - were documented . In fact, with the exception of the Exhibits referenced by CCBE in its brief, no other "evidence, information, and/or other documents supportive of" the suspension was provided by CCBE. to confirm the basis for the Board's action.

Having carefully reviewed the documentation and written briefs in support of the parties' respective positions on Mr. McBrayer's contest of his suspension, and in light of the above Findings of Fact and Conclusions of Law, the Hearing Officer finds that the evidence was not sufficient for CCBE to suspend Mr. McBrayer.

Having failed to sustain the burden of proof necessary to support the suspension, it is the decision of the undersigned Hearing Officer to hereby invalidate the suspension and award him any lost wages he sustained.

Nonetheless, Mr. Hudson's concern about Mr. McBrayer's behavior is a legitimate concern that cannot be overlooked or completely disregarded. Thus, my decision is not to excuse Mr. McBrayer's behavior toward school supervision or to exonerate him from engaging in improper behavior or to undermine the Superintendents's authority to take prompt and decisive action in the event that Mr. McBrayer, or any school employee, engages in behavior that disrupts proper school decorum or disturbs the normal stability of the school.

A final word - this case presented the challenge of deciding a factual dispute on "evidence" based on hearsay, unsworn statements and argument of counsel. Both Counsel made reasonable arguments in support of their motions to exclude the other's "evidence." However, if I were to rule in favor of either or both, there would be no "evidence" on which to make a decision . Obviously, this is not a rebuke or criticism of any participant in the proceeding. Rather, I add this postscript to note the difficulty of deciding a matter without the benefit of the formalized evaluative processes typically used to make such a ruling.

Dated: _____________________ _____________________________
Edward J. Gutman, Hearing Officer

[i]All dates were in 2006 unless otherwise indicated.

[ii]The exhibits referred to are documents furnished to the Hearing Officer by the Employer, CCBE.

[iii]The Notice of Contest mistakenly stated that the contest was taken pursuant to Chapter 24 of Title 16, Code of Alabama.

[iv]Exhibit L is an unsworn statement signed by Mr. Kimbrough and describes an incident that allegedly took place on August 4, 2005. From a reading of the exhibits, it is clear that CCBE meant to refer to Exhibit M, not L. in support of the complaint of insubordination.

[v]Exhibit P and Exhibit L are the same document.

[vi]Exhibit R is the handwritten statement by employee Kathy Berryman regarding the August 20, 2004, incident with Mr. McBrayer described in Exhibit Q, Mr. Kimbrough's "Documentation" of August 23, 2004.

[vii]Exhibit N is the memo from Mr. Kimbrough to Superintendent Hudson dated August 20, 2003, describing the incident with Mr. McBrayer that allegedly occurred on August 30, 2003, about the use of a county vehicle on August 18, 2003.

[viii]The letter dated August 29, 2003, from Superintendent Hudson to Mr. McBrayer suspending him for 15 days for violating school policy for unauthorized use of school property for personal use.

[ix]The memo to Mr, McBrayer from Mr. Kimbrough regarding the incident that occurred on August 4, 2005, when Mr. McBrayer allegedly refused to cooperate with him, during which, he used vulgarity and Mr. Kimbrough allegedly threatened him with a seven-day suspension without pay.

[x]The memo from Mr. Kimbrough to Mr. McBrayer about an August 27, 2003 incident.

[xi]Exhibits Q and R deal with the August 20, 2004 complaint of cursing that Mr. McBrayer and Kathy Berryman made against each other.

[xii]It would be a curious and certainly an unintended consequence if an employee suspended for seven-days or less would have to bear the expense of having his "statement" recorded by a court reporter in order to perfect his contest of an adverse board decision. The fee of a court reporter would in all likelihood exceed the loss of one week's pay.

[xiii] It is not clear from CCBE' Brief but it seems that it is CCBE's position that had Mr. McBrayer asked to have his statement recorded by a court reporter, the recorded statement would be admissible in this contest. While fundamental principles of due process militate against making factual determinations predicated on purported facts in an affidavit that have not been subject to the rigors of cross examination, even had a court reporter recorded Mr. McBrayer's statement to the Board, the recorded statement would have the same infirmity as his affidavit.

[xiv]While the notes say that Mr. Kimbrough asked Mr. McBrayer the "second time", there is no reference to a "first time" that Mr. Kimbrough asked him to come to his office.

[xv]There is no "evidence" to show whether Mr. Kimbrough or the Superintendent investigated Mr. McBrayer's claim of being hard of hearing.

[xvi]There was no claim by CCBE that Mr. McBrayer ever cursed at Mr. Kimbrough again.

[xvii]Colburn was decided prior to the amendment to the FDA when, unlike the statute since 2004, the FDA stated that the employment record of the employee was a factor to be considered in determining whether the action of a Board of education's disciplinary action was warranted.

[xviii]Exhibit P, the August 4, 2005 memo to Mr. McBrayer from Mr. Kimbrough threatened Mr. McBrayer with a seven day suspension if he could not refrain from cursing. Relying upon the incident described in this document as justification for the suspension which is being contested in this matter, suffers from the same infirmity.