Ala. Dept. of Youth Serv. V. Personnel Bd.

7 So.3d 380

ALABAMA DEPARTMENT OF YOUTH SERVICES v. STATE PERSONNEL BOARD and Willie Pollard.

2070059.

Court of Civil Appeals of Alabama.

October 24, 2008.

T. Dudley Perry, Jr., gen. counsel, and Sancha E. Teele, asst. atty. gen., Department of Youth Services, for appellant.

Alice Ann Byrne, gen. counsel, State Personnel Board, for appellees.

Joseph C. Guillot of McPhillips Shinbaum, LLP, Montgomery, for appellee Willie Pollard.

BRYAN, Judge.¹

The Alabama Department of Youth Services ("DYS") appeals from a judgment of the Montgomery Circuit Court affirming a decision by the State Personnel Board ("the Board") to reinstate Willie Pollard's employment with DYS. We reverse and remand.

Pollard was employed by DYS as a security officer. On May 22, 2006, Pollard struck a 19-year-old handcuffed student at a DYS facility. Following two hearings held by DYS regarding the incident, DYS terminated Pollard's employment on August 29, 2006. In a letter informing Pollard of his dismissal, the executive director of DYS stated that the evidence submitted at the DYS hearings established that Pollard had violated several rules of the Board and several DYS policies. Pollard appealed his dismissal to the Board, pursuant to § 36-26-27(a), Ala.Code 1975. On December 4, 2006, an administrative law judge ("ALJ") held a hearing on Pollard's appeal. The ALJ subsequently issued an order recommending that the Board uphold DYS's termination of Pollard's employment.

On March 14, 2007, the Board issued a decision reversing DYS's termination of Pollard's employment. The decision of the Board states, in pertinent part:

"The [ALJ] found that the totality of the evidence warrants dismissal in this cause and recommended that [Pollard's] dismissal be sustained. The Board hereby adopts by reference the findings of fact and conclusions of law as found by the [ALJ] as a part of this Order as if fully set forth herein.

"The Board has carefully considered the [ALJ's] Report in this case, however[,] and found that termination is too severe a punishment. [Pollard] is hereby ordered reinstated in a probationary status for a six month period. At the end of the probationary period, [Pollard] shall not be entitled to a probationary raise. This reinstatement shall be without back pay and [Pollard] is ordered to attend training regarding proper interaction and restraint of juveniles ...."

DYS appealed the Board's decision to the circuit court, pursuant to § 41-22-20, Ala.Code 1975, and the circuit court affirmed. DYS timely appealed to this court.

The ALJ's recommended order presented the following pertinent factual background:

"John Shumway, supervisor/chief of security at Mt. Meigs [Youth Services Facility, where Pollard worked] ..., testified about applicable DYS policies. ...

"Shumway explained [that DYS staff members receive training instructing them] how to control a student without any strikes or blows. Shumway testified the training teaches, among other things, how to use a student's momentum against himself. Shumway testified, pursuant to ... training and DYS policies, a staff member may not strike a handcuffed student. Shumway affirmed strikes to the facial area and mid-section are prohibited. ...

"....

"When questioned about self-defense, Shumway explained self-defense is permitted up to the point a student is restrained and [self-defense] is not considered prohibited corporal punishment; staff members are taught to use minimum force. Corporal punishment is strictly prohibited and includes striking a student with one's fist.

"....

"On May 22, 2006, at approximately 6:00/6:30 a.m., Sandy Johnson, a child care worker ..., called `security' and requested assistance at the dining hall of Dorm D & EA (hereinafter `the dorm'). Pollard responded to the call, and he, along with Mr. Goode, another security officer ..., entered the dining hall. Johnson gave Goode a report indicating the student had demonstrated inappropriate sexual behavior. Johnson asked Pollard and Goode to escort the student to `lock up' or `time-out' (hereinafter `time-out') located in a different building[,] Phyfer B. The student ... asked to see the report. Goode showed the report to the student. After reading the report, the student became angry and began cussing. The student threw the report at Johnson and lunged toward her. Pollard intervened and prevented the student from harming Johnson. Pollard then stated `Let's put the cuffs on.' However, Pollard was unable to subdue the student. The student and Pollard engaged in a struggle. The student overpowered Pollard and pinned him down and began choking him. Goode froze and failed to intervene and help Pollard. William Allen, a [DYS] aide, intervened and helped get the student off Pollard. The student was handcuffed with his hands behind his back. Shumway testified that, pursuant to DYS policy, using handcuffs on the student was appropriate. During the incident inside the dorm, which is not the basis of Pollard's termination, Pollard acted in accordance with DYS policies.

"....

"After the incident inside the dorm, [Arnold] Richardson[, a DYS aide,] calmed the student down by talking to him. The student, Pollard, Goode, and Richardson exited the dorm in order to proceed towards Phyfer B. Phyfer B is approximately 75 yards from the dorm. Upon exiting the dorm it is necessary to make a left turn in order to head towards Phyfer B. The student was uncooperative and attempted to turn right instead of left. Richardson testified Pollard swung at the student four times while the student was handcuffed. Richardson's testimony indicates Pollard struck the student four times. Richardson stated Pollard swung at the student's facial area twice with his left hand and then swung at the student twice more after the student bent over. Richardson admitted he could not recall whether Pollard's fist was open or closed; he also admitted he could not recall where Pollard's second set of punches struck the student. Richardson separated Pollard and the student. Richardson took the student aside and calmed him down by talking to him. Pollard then escorted the student to Phyfer B. ... Richardson was not concerned Pollard would strike the student again; the student was subdued and `ready to listen.'

"Counsel for Pollard ... referred Richardson to a portion of his prior testimony from the June 27, 2006, DYS fact-finding [hearing]. At that hearing, when questioning Richardson about the incident at issue, counsel for Pollard asked: `Would you even say he could have been protecting himself against the student coming at him?' to which Richardson responded `Most definite ....' Richardson's answer to that particular question, however, must be considered in light of his entire testimony. Richardson's overall testimony describing Pollard's actions does not indicate Pollard acted in self-defense; rather, it indicates Pollard acted improperly. Richardson's prior testimony regarding the details of Pollard's swings varies slightly; however, and importantly, Richardson's testimony regarding the major facts—that Pollard swung at the student four times and struck the student— twice while the student was standing up and twice when the student was bent over—has remained consistent and firm.

"Pollard testified that he did not strike, punch, or kick the student. Pollard testified the student tripped and fell after he exited the dorm. Pollard testified he pulled the student up. Pollard testified the student forced his body towards Pollard, i.e., attempting to `head-butt' him. Pollard testified he turned the student around by `pushing' him and using his hands on the student in order to redirect him in the right direction towards Phyfer B. However, during the hearing, when Pollard first described his `pushes' he (without being requested to do so) demonstrated the gesture with a closed fist [and] then immediately demonstrated the gesture with an open fist and fingers spread, as if to `correct' himself. Pollard also testified he hurt his left hand during the incident inside the dorm. Pollard testified his fingers on this left hand were still crooked and when he wanted to bend his fingers he had to bend them `like that'—demonstrating using his right hand to help make a fist with his left hand. However, several times during the hearing Pollard made a fist with his left hand without any assistance from his right hand.

"....

"Richardson testified Pollard's actions during the incident at issue were contrary to DYS training and policies. ... Roderick Reese, another security guard, and Harrison[, a DYS aide,] both testified it was a violation of DYS policies to strike a student who was handcuffed.

"....

"In the present case, the evidence was conflicting regarding whether Pollard struck the student in violation of DYS policies during the incident that occurred outside of the dorm on May 22 2006. The undersigned finds the evidence establishes, more probably than not, Pollard swung at the student four times and struck the student—twice while the student was standing up and twice when the student was bent over.

"The undersigned finds Pollard's testimony regarding the incident at issue not to be credible. During this portion of his testimony, Pollard fidgeted and his eyes shifted back and forth .... Pollard's testimony that he did not strike the student but merely attempted to `push' the student in order to redirect him in the right direction towards Phyfer B was not believable. The only testimony indicating Pollard's left hand was too injured during the incident inside the dorm to make a fist and strike the student outside the dorm shortly thereafter was his own self-serving (unsubstantiated) testimony; the undersigned does not find that testimony to be believable either.

"The undersigned finds Richardson's testimony regarding the incident at issue to be credible. As previously stated, Richardson's testimony regarding the major facts—that Pollard swung at the...