Final Non-Precedential Decision Adopted: April 14, 2004
By: Michael T. Navarro, Director
DECISION
This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 10:00 a.m. on November 12, 2003, and January 27, 2004, at Sacramento, California.
Appellant was present and was represented by Melinda Silva who acted in an individual capacity unaffiliated with any organization.
Stephen A. Jennings, Acting Assistant Chief Counsel, represented the Department of Corrections (CDC), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
I - JURISDICTION
On August 13, 2003, appellant was verbally informed that effective September 1, 2003 she was being transferred from her position as District Administrator in the West Bay District to District Administrator in the South Bay District. Her headquarters office was moved from San Francisco to San Jose. The appellant filed a request (appeal) from involuntary transfer on August 20, 2003. The appeal complies with the procedural requirements of Government Code section 19994.3.
II - CAUSE FOR APPEAL
In appellant’s September 5, 2003 letter of appeal, she alleged the transfer was made to discriminate against and harass her because she is a single gay female. She also alleged the transfer was taken for disciplinary purposes and that her due process rights were therefore violated. Appellant believed she was being disciplined for a June 26, 2003, incident in which her supervisor’s suit coat was balled up and hit by an employee who worked for her. She also argued she was being disciplined and harassed by the transfer because CDC believed she was not supportive of management and that her “attitude” would interfere with accomplishing tasks in the West Bay.
Appellant did not address her allegations of discrimination or harassment because of her gender or sexual orientation at hearing. Therefore, these allegations are deemed abandoned and are therefore dismissed.
III - CIRCUMSTANCES SURROUNDING TRANSFER
A. The Budget, New Policy and Reorganization
A Deputy Director was appointed to the PCSD in July 2002. In August or September 2002, the Department of Finance asked CDC to submit plans to reduce its budget deficit and future expenses. In response to this, CDC decided to change its policy regarding parolee recidivism. Instead of revoking parole and returning offenders to custody in what it termed a “law enforcement model,” CDC proposed using alternative, social programs in what it called a “social model.” CDC submitted this plan to the Department of Finance in late 2002. The date finally set for its formal implementation was January 2004.
A Regional Administrator was appointed for Region II in January 2003. She was responsible for implementing the new social model in her parole region. She immediately began discussing the proposed change with her Region II administrators.
As a result of reviewing reports from all Region II districts, the Regional Administrator believed the West Bay District was oriented toward a return to custody, law enforcement approach to parole violators. She attributed this in part to the custody backgrounds of the personnel in that district. In contrast, the Regional Administrator believed personnel in the South Bay District came more from probation and community service backgrounds. She believed the South Bay District handled its recidivism cases more in line with the PCSD’s emerging social model policy than did the West Bay District.
In early 2003, PCSD faced additional position reductions that forced it to develop reorganization plans. In late spring and early summer 2003, the Regional Administrator was tasked with preparing preliminary redistricting plans for Region II.
The Regional Administrator testified that consistent with her implementation of PCSD’s new parole recidivism policy, her belief that the West Bay was entrenched in a law enforcement approach to recidivism and her developing redistricting plan, she decided to transfer appellant to the South Bay District.
The Regional Administrator testified she wanted to bring fresh perspective and oversight to the West Bay. She also testified that by transferring appellant, she wanted to provide appellant with an opportunity to manage a different district because appellant had been in the West Bay for her entire PCSD career. The Regional Administrator believed that both the appellant and the personnel in the two districts would benefit by being exposed to staff with different backgrounds and different approaches to parolee recidivism.
The Regional Administrator discussed her plan to transfer appellant to the South Bay with the Deputy Director. The Deputy Director also believed that the West Bay District had a unique environment and a close association with law enforcement in that district. The Deputy Director also acknowledged that because of several factors that were unrelated to appellant, he believed the West Bay District leaned toward a law enforcement approach to parole recidivism, and therefore, had a high return to custody rate. The Deputy Director supported the Regional Administrator’s decision to transfer appellant.
In August, the Regional Administrator also discussed her plan to move appellant with the Deputy Region Administrator who directly supervised appellant and with the Deputy Region Administrator who supervised the South Bay District. The Regional Administrator discussed her concerns regarding the West Bay District. Both appellant’s supervisor and the Deputy Region Administrator believed appellant was a good supervisor. Neither appellant’s supervisor nor the Deputy Region Administrator opposed moving appellant.
On October 19, 2003, three preliminary redistricting plans were distributed to the District Administrators in Region II. These plans were discussed at a meeting on October 29, 2003. The District Administrators expressed their displeasure with the proposed plans. According to appellant, all the District Administrators were unhappy with the three proposed plans because the plans tried to “mix it up so everyone had to move from their original area.” This would have meant that the District Managers would have to move and they did not want to travel the distances that may have been required under the Regional Administrator’s proposed plans. The Regional Administrator decided to allow the District Managers to redesign the new districts so they could keep some of the units they already had as well as taking on additional units. Everyone was well aware that budget reductions required the elimination of three District Administrator positions.
As a result of the redistricting discussions on October 29, 2003, appellant was assigned to the South Bay District which at that time consisted of one San Francisco unit, San Jose units, a Santa Cruz unit and a Hayward unit.
B. The June 26, 2003 Incident and Surrounding Circumstances
Appellant’s supervisor left his suit coat in a San Francisco Unit office on June 26, 2003, after attending a West Bay Supervisors’ meeting. When he realized he had left the coat, he called the unit and asked appellant to keep it for him until they could arrange for him to pick it up. Before appellant could take possession of the coat a Unit Supervisor picked up the coat and jokingly ruffled through it to check for hidden hearing devices. Another Unit Supervisor wadded the coat into a ball and punched it. At this point the Supervisor of the Daly City Parole Unit told the Unit Supervisor to stop. Amid laughing and cheering, appellant interceded by ordering the Unit Supervisor to stop abusing the coat. According to the Daly City Supervisor, the Unit Supervisor then proceeded to intimidate her. He stood immediately over her and became aggressive. The Unit Supervisor told the Daly City Supervisor she “didn’t belong there” and she should “get a job change.” Appellant again intervened. Appellant told the Unit Supervisor that the Daly City Supervisor “will leave as soon as the hiring freeze is over.” This was the first time the Daly City Supervisor heard that she might be leaving her Daly City Parole Unit.
Appellant met with the Daly City Supervisor shortly after the June 26 meeting. They discussed the Daly City Supervisor’s potential job change. The Daly City Supervisor agreed to request a job change. The Daly City Supervisor wanted a job change because she consistently worked long hours, the office was improperly staffed; and, she commuted 100 miles one way to her job in Daly City. The Daly City Supervisor testified she also wanted to transfer because appellant had recently intruded into her personal life. The Daly City Supervisor testified she had recently resisted appellant’s vigorous attempts to persuade her to use a particular realtor to refinance her house. When the Daly City Supervisor and appellant discussed the Unit Supervisor’s actions during the June 26 meeting, the Daly City Supervisor told appellant she thought the Unit Supervisor was rude. Appellant told the Daly City Supervisor that the Unit Supervisor was “out of control and that she needed to talk with him.” Appellant subsequently put out a memo asking for voluntary transfers to the Daly City Parole Unit.
The Daly City Supervisor asked the Regional Administrator and his supervisor for a job change a few weeks later when they attended a meeting at the Daly City Parole Unit. When the Regional Administrator questioned the Daly City Supervisor about why she wanted to change jobs, the Daly City Supervisor told the Regional Administrator she was told to leave. The Daly City Supervisor then told the Regional Administrator and appellant’s supervisor about the jacket, her experience with the Unit Supervisor at the June 26 meeting, and her subsequent conversations with appellant. The Daly City Supervisor also explained she wanted a job change to be closer to home.
Appellant brought his supervisor’s wrinkled jacket to him sometime in July after the meeting with the Daly City Supervisor. Appellant’s supervisor was disappointed and upset about the condition of the jacket. When appellant’s supervisor questioned her about the jacket’s condition, she told him it had gotten wrinkled because it had been in the trunk of her car. Appellant offered to have the jacket cleaned. The supervisor refused her offer.
There was no investigation of any of the conduct surrounding either the treatment of the supervisor’s coat or the Daly City Supervisor’s request to be transferred. No reports or memos were written regarding these incidents.
C. The August 13 Meeting
The Regional Administrator, appellant’s supervisor, and the Deputy Regional Administrator met with appellant on August 13 at the Region II Headquarters’ Office. The purpose of the meeting was to inform appellant she was being transferred to the South Bay Region effective September 2.
The Regional Administrator told appellant that based on conversations she had with staff, the Regional Administrator believed appellant was not supporting management and that the direction the West Bay District was going was not the direction PCSD’s wanted to go. Appellant became upset. During her 23 years with CDC, she had always been viewed as a good employee and believed she had done everything that was asked of her. Appellant testified she had never been told she needed to change her approach to parole recidivism or that she needed to change anything else regarding her job performance. She pleaded not to be transferred.
At some point during the meeting appellant’s supervisor asked her why she had told two people that he was either transferring or retiring and “wouldn’t be around long.” Appellant admitted saying this and assured her supervisor she would refrain from doing so again.
The Deputy Regional Administrator asked appellant what had happened after the June 26 meeting. Appellant’s account of what occurred was significantly different from the account her supervisor and the Regional Administrator had received from the Daly City Supervisor. When the Regional Administrator and appellant’s supervisor told the Deputy Regional Administrator what the Daly City Supervisor told them, the Deputy Regional Administrator did not believe the Daly City Supervisor’s account of the situation. The Regional Administrator initiated a conference call to the Daly City Supervisor to confirm her understanding of her report. The Deputy Regional Administrator questioned the Daly City Supervisor to see if there was any potential misunderstanding because she was concerned about the occurrence of such unprofessional conduct. The Deputy Regional Administrator remained unconvinced that the Daly City Supervisor’s account of what had occurred on June 26 was accurate.
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PURSUANT TO THE FOREGOING FINDINGS OF FACT, THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:
Government Code section 19994.1 provides that an appointing power may transfer any employee under its jurisdiction to another position in the same class or from one location to another whether in the same position or in a different position. Section 19994.3 provides that the transferred employee may protest to DPA that the transfer was made for the purpose of harassing or disciplining the employee, rather than for a legitimate business reason. If DPA finds that the transfer was made for the purpose of disciplining or harassing the employee, and not for a legitimate business reason, DPA has the authority to disapprove the transfer and return the employee to her former position. In Johnston v. Department of Personnel Administration (1987) 191 Cal.App.3d 1218, the court found that the right to file an appeal from involuntary transfer extends to an employee whose transfer is non-geographical and does not require her to change her residence.
Appellant was transferred pursuant to Section 19994.1. She did not change her residence. The sole issue to be addressed is whether or not appellant’s transfer was punitive in nature, or if it was the proper exercise of administrative discretion by the Regional Administrator.
Respondent’s claim that appellant’s transfer was for legitimate business reasons is supported by the record. It was undisputed that PCSD was implementing a new policy regarding parolees’ return to custody. It was undisputed that the West Bay District had a history that, for whatever reason, showed a pattern of high return to custody and that it had a well-known and well-developed relationship with law enforcement officials. It was also undisputed that appellant’s only experience in PCSD was in the West Bay District. These undisputed facts support the Regional Administrator’s testimony that at least one of her primary reasons for transferring appellant was to expose her to the more socially-oriented model she believed existed in the South Bay District.
The Regional Administrator’s testimony is also supported by her subsequent redistricting proposals which consistently assigned appellant to the core area in the South Bay. According to appellant’s own testimony, the initial redistricting proposals “mixed everything up” to the point that all the District Administrators would have been required to move from their core areas and travel longer distances to their new assignments. When the District Administrators redesigned the districts, appellant, like other District Administrators, kept some of her South Bay core area and received additional units. Although appellant may have preferred to work in the West Bay District, she was not the only District Administrator who did not get assigned to the exact district he/she preferred.
In addition, the Deputy Director credibly testified that other management employees both in PCSD Region IV and Region II had been involuntarily transferred based on administrative balancing of operational need.
Appellant’s argument that she was transferred in September 2003 instead of in January 2004 for purely punitive reasons was not supported by the evidence. PCSD management believed appellant was generally a good supervisor. She had received outstanding performance appraisals. Although, she was not specifically instructed to modify her management techniques, appellant was aware that PCSD had changed its parolee recidivism policy. At the August 13 meeting she was told that the Regional Administrator anticipated that by exposing her to different philosophies and personnel, appellant was expected to adjust her “attitude” and support the direction PCSD was going regarding parole violations. Whether valid or not, the Regional Administrator believed appellant and Region II’s efficiency would be enhanced by the transfer. While the situation in June and July 2003 clearly drew attention to appellant and demonstrated she may have had some personnel problems, the evidence shows that absent PCSD’s parole recidivism policy change and the Regional Administrator’s developing redistricting plan, appellant would not have been transferred at all.
A transfer is disciplinary in nature only if it is imposed for the purpose of punishment. (See White v. County of Sacramento (1982) 31 Cal.3d 676, 683.) Although appellant preferred to work in the West Bay District, there was no evidence that appellant was at all penalized or punished by being transferred to the South Bay District. There was no evidence that appellant’s September transfer entailed any financial loss. There was no reduction in pay or decrease in benefits. There was no evidence there was any decrease in responsibility or that it was a demotion. There was no written documentation of any of the activity that appellant alleges was the grounds for her disciplinary transfer. There was no disciplinary action of any type taken against appellant prior to or at the time the transfer occurred. In fact, when appellant complained that the commute to the South Bay District was “too hard,” the Regional Administrator adjusted the units appellant was responsible for so that the commute was more acceptable and more readily facilitated appellant’s child care needs. This was done within a couple of weeks of appellant’s September transfer.
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WHEREFORE IT IS DETERMINED
that the protest of involuntary transfer effective September 2, 2003, is denied.
