State Personnel Dept. v. Mays

• Decision Date: 26 March 1993
• Citation: 624 So.2d 194
• Parties: STATE PERSONNEL DEPARTMENT and State of Alabama Bureau of Tourism and Travel v. Timothy MAYS. AV92000071.
• Court: Alabama Court of Civil Appeals

Page 194

624 So.2d 194

STATE PERSONNEL DEPARTMENT and State of Alabama Bureau of Tourism and Travel v. Timothy MAYS.

AV92000071.

Court of Civil Appeals of Alabama.

March 26, 1993.

Rehearing Denied April 30, 1993.

Certiorari Denied July 2, 1993

Alabama Supreme Court 1921207.

James H. Evans, Atty. Gen., and Philip C. Davis and R. Frank Ussery, Asst. Attys. Gen., for appellants.

Timothy C. Halstrom, Montgomery, for appellee.

ROBERTSON, Presiding Judge.

Timothy Mays was dismissed from his employment as a receptionist with the State of Alabama Bureau of Tourism and Travel (Bureau) based upon charges that he had made "an uninvited homosexual advance" upon another state employee on state premises and that he had defaced state property by writing graffiti on the rest room walls at his place of employment. Mays appealed his dismissal to the State Personnel Board (Board), which appointed a hearing officer to conduct an evidentiary hearing.

After hearing conflicting testimony concerning the alleged incidents, the hearing officer concluded that there was insufficient evidence that the incidents had occurred as charged. Thereupon, the hearing officer submitted his findings of fact to the Board and recommended that Mays be reinstated with back pay.

After reviewing the transcript of the hearing and listening to oral argument of the parties' counsel, the Board rejected the hearing officer's findings and recommendation and entered an order upholding Mays's dismissal. In support of its rejection of the hearing officer's report, the Board concluded that the hearing officer, when resolving the conflicts in the testimony, had ignored evidence corroborating the account of the incident given by the alleged victim of the alleged unwanted sexual advance.

Mays thereafter appealed the Board's decision to the Circuit Court of Montgomery County. The trial court reversed the Board's decision, holding that the Board's rejection of the hearing officer's findings was "without substantial justification [and] was, therefore, unreasonable, arbitrary, and capricious." The Board and the Bureau appeal, contending that the trial court erroneously substituted its judgment for that of the Board.

Our review of the order issued by the Board in this case, as well as the review in the circuit court, is governed by § 41-22-20(k), Code 1975. Pursuant to this code section, the Board's order is presumed "prima facie just and reasonable, and the court shall not substitute its judgment for that of the [Board] as to the weight of the evidence on questions of fact." If we determine that evidence was offered to support the Board's order, then we must affirm. State Dep't of Corrections v. Cooke, 530 So.2d 839 (Ala.Civ.App.1988).

Because in this case the Board rejected the findings of the hearing officer, we note that it is well settled that the hearing officer is not a "co-equal statutory authority" with the Board. Thompson v. Alabama Dep't of Mental Health, 477 So.2d 427 (Ala.Civ.App.1985). Under the Board's rules and regulations, the Board may "modify, alter, set aside, or affirm" the hearing officer's findings and recommendations. State Personnel Board Rule 670-X-5-.07.

In Personnel Board v. King, 456 So.2d 80 (Ala.Civ.App.1984), this court addressed the application of its standard of review in cases where the Board has rejected a hearing officer's findings, holding that

" 'the Board may reject the [hearing officer's] findings, even though they are not clearly erroneous, if the other evidence provides sufficient support for the Board's decision. But it seems that the Board's supporting evidence, in cases where it rejects the [hearing officer's] findings, must be stronger than would be required in cases where the findings are accepted, since in the former cases the supporting evidence must be deemed substantial when measured against the [hearing officer's] contrary findings as well as the opposing evidence.' "

King, supra, at 82 (quoting NLRB v. Interboro Contractors, Inc., 388 F.2d 495, 499 (2d Cir.1967)) (emphasis added).

Because most of the central facts in this case were vigorously disputed, this case turns upon the question of credibility. The hearing officer received testimony from eleven witnesses, including the diametrically opposed testimony of the only two witnesses who provided direct evidence regarding the alleged sexual advance: the alleged victim and Mays. The alleged victim, an employee of the State Highway Department, claimed Mays made an unwanted sexual advance upon him on the night of January 17, 1991, while the alleged victim was working at a state welcome center. The alleged victim testified that Mays, who was employed by the Bureau at the welcome center, but was off duty on the night in question, visited him at work on January 17 and made the unwanted sexual advance after massaging the alleged victim's shoulders and chest for approximately fifteen to twenty-five minutes. The alleged victim testified that, up until the point of the alleged sexual advance, he believed Mays was "just being a friend." Testimony indicated that Mays and the alleged victim had been casual friends for approximately six months.

Mays categorically denied the accusation of the alleged victim and denied even being present at the welcome center on the night of the alleged incident. There were no other witnesses present during the alleged incident, and hence no witnesses who could substantiate or refute the direct testimony of Mays or the alleged victim. There was a multitude of character testimony to the effect that the conduct of which Mays was accused was completely contrary to his character.

Regarding the second charge against Mays, a co-worker of the alleged victim testified that on the...