Final Decision Adopted March 3, 2015By: Richard Gillihan, Director
This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Human Resources (CalHR) at 9:00 a.m. on November 20, 2014 in Riverside, California.
Appellant was present and represented by Adam Stern, Attorney at Law, Of Counsel, The Myers Law Group. Amy Carmona, Office Chief of Classification and Hiring Services, represented the Department of Transportation (DOT), respondent.
On July 23, 2014, DOT, respondent, issued appellant a Denial of Merit Salary Adjustment. California Code of Regulations, title 2, section 599.684 provides an employee may appeal to CalHR after having exhausted the departmental remedy to determine if the denial of his merit salary adjustment is supported by substantial evidence. On September 5, 2014, appellant filed a timely appeal with CalHR.
The appeal complies with the procedural requirements of the California Code of Regulations, title 2, section 599.684. CalHR has jurisdiction over the appeal.
Appellant argues he was not provided proper notice of the merit salary adjustment denial and the denial of his merit salary adjustment was arbitrary.
Respondent contends it had substantial evidence for denying appellant's merit salary adjustment and the denial should be sustained.
1. Was the notification of appellant's denial of merit salary adjustment timely?
2. Is the denial of a merit salary adjustment supported by substantial evidence?
The evidence established the following facts by a preponderance of the evidence.
The appellant began his career with respondent on March 11, 1998. His current appointment is as an Equipment Operator II with respondent's Sign Crew in the Commerce Yard. He has been an Equipment Operator II for three years, and NAME REDACTED, Maintenance Supervisor, has been his supervisor for the last year. The appellant has never been denied a Merit Salary Adjustment (MSA) and received regular Performance Appraisals from his previous supervisors. NAME REDACTED never gave the appellant a Performance Appraisal.
The appellant claims unfair treatment by NAME REDACTED and reported these issues to the Manager. The Manager told him to put something in writing and they would further discuss the issues. The appellant told the Manager he feared retaliation from NAME REDACTED and the Manager told him to come to him if he felt any retaliation from NAME REDACTED. On July 23, 2014, two days after his meeting with the Manager, he was given a memo from NAME REDACTED denying his MSA because, "he is not putting on his vest fast enough." The appellant's MSA was to have become effective on July 31, 2014.
The Manager is NAME REDACTED second line supervisor. NAME REDACTED knew the appellant complained to the Manager about him, but does not recall the exact date, explaining it was either July 2014 or August 2014. Nothing was done about the appellant's unfair treatment complaints and when he returned to speak with the Manager, he was told to put his complaints in writing and give it directly to NAME REDACTED. NAME REDACTED claims appellant's complaint had no bearing on his denial of the appellant's MSA.
The July 23, 2014 MSA denial memo listed four allegations against the appellant.
The first allegation was he wore tennis shoes instead of the appropriate work boots on October 30, 2013. The appellant was never told of this allegation until he received the MSA denial, seven months later. There was credible evidence other employees, including his supervisor, wore shoes other than the appropriate work boots.
The second allegation involved a backing accident on January 15, 2014. The appellant does not deny the backing accident which caused approximately $1,500.00 in damage to one of respondent's vehicles. He was given a Letter of Warning and has not had an accident since. Also, on January 15, 2014, NAME REDACTED verbally counseled the appellant about, "working in a connector on the outside of a curve by himself." NAME REDACTED believes this to be an unsafe behavior and the appellant has not repeated the behavior.
The last allegation in the July 23, 2014 MSA denial memo was appellant's failure to wear the appropriate safety equipment on June 17, 2014. NAME REDACTED alleges the appellant was not wearing a hardhat, safety vest or gloves. The appellant does not deny this allegation, claiming it was extremely hot and there was little or no traffic in the area. He was not told of the problem until a few days later when NAME REDACTED showed him a picture of appellant without his orange coveralls for protection from trees and bushes and to make him more noticeable to on-coming traffic. He also understands the gloves are protection from splinters, and goggles from flying debris.
The appellant and his co-workers attend weekly Safety "Tailgate" Meetings. On August 14, 2013, August 19, 2013, October 14, 2013, December 16, 2013, December 30, 2013, February 3, 2014, March 24, 2014, May 19, 2014 and July 7, 2014, Personal Protective Equipment was discussed. The appellant does not have a specific recollection of receiving training on each specific topic, but admits he has a general understanding of the purpose of Personal Protective Equipment and has attended several respondent-sponsored training courses.
NAME REDACTED supervises approximately ten (10) employees and has supervised the appellant for one (1) year and two (2) months. The appellant is the only employee who was denied his MSA and all reasons for the denial are outlined in the July 23, 2014 MSA denial memo. NAME REDACTED admitted there are other employees, himself included, that wear tennis shoes in the Commerce Yard shop. None of those employees were denied their MSA. NAME REDACTED acknowledged he had corrective interviews with the other employee for the tennis shoe issue, and did not otherwise discipline the employee.
NAME REDACTED admits he wears tennis shoes in the office and the shop if he is just walking through even though work boots are required. He thinks there is a rule which says managerial employees can have tennis shoes on but does not cite to a rule. In another instance, the appellant and another employee were not wearing safety vests on June 17, 2014. NAME REDACTED had a corrective interview with the other employee, but did not have a corrective interview with the appellant.
NAME REDACTED explained safety is the number one topic at the weekly Safety "Tailgate" Meetings. He claimed that every four (4) years the appellant attended the Defensive Driver training, but could provide no proof the appellant took the class after 2009. NAME REDACTED claims the Maintenance Field Defensive Driver Training taken by the appellant in 2012 is the same course as Defensive Driver Training. NAME REDACTED provides an Independent Development Plan (IDP) to each of his employees on an annual basis. He could not explain why he had not yet provided an IDP to the appellant.
Respondent failed to timely notify appellant of his merit salary adjustment denial.
Appellant's argument respondent was inefficient is well-placed. Bargaining Unit 12, Craft and Maintenance states at section 2.4, "Merit Salary Adjustments - Employees shall receive annual merit salary adjustments in accordance with Government Code section 19832 and applicable CalHR rules. The employee shall be informed in writing of denial ten (10) working days prior to the proposed effective date of the merit salary adjustment." The appellant's MSA was due on July 31, 2014.
Respondent notified the appellant on July 23, 2014 his MSA was denied. In accordance with the Memorandum of Understanding (MOU), the appellant should have been notified no later than July 17, 2014 his MSA was to be denied. He was not. The Labor Relations Division of the Department of Human Resources determined respondent's failure to timely notify the appellant of his MSA denial unproblematic.
However, the MOU is a contract which supersedes the statute and the respondent is duty-bound to comply with its terms. As noted in Government Code section 19832 (b), "If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Section 3517.5, the memorandum of understanding shall be controlling without further legislative action . . . ." Therefore, respondent's failure to timely notify the appellant of his MSA denial is clear error and should not be excused.
The merit salary adjustment denial is not supported by substantial evidence.
Government Code section 19832 provides, "[a]fter completion of the first year in a position, each employee shall receive a merit salary adjustment equivalent to one of the intermediate steps during each year when [he] meets the standard of efficiency as the department by rule shall prescribe." In other words, an employee who does not meet the standard of efficiency is inefficient and should not be awarded a merit salary adjustment. The denial of an MSA is therefore a form of discipline for those employees who demonstrate inefficiency.
"Inefficiency . . . generally connotes a continuous failure by an employee to meet a level of productivity set by other employees in the same or similar position. In some instances, an employee's failure to produce an intended result with a minimum of waste, expense or unnecessary effort may also constitute 'inefficiency' for purposes of discipline under subdivision (c)." (Boobar SPB Prec. Dec 93-21.) The appellant has never been denied his merit salary adjustment except under NAME REDACTED. Moreover, when given an opportunity to correct his behavior, the appellant never repeated the unwanted behavior. Therefore, the appellant was not inefficient as he never exhibited a continuous failure in performing his duties.
In evaluating an appeal for a denial of a merit salary adjustment, "the determination of the appointing power to withhold a merit salary adjustment shall be sustained if supported by substantial evidence." (Cal. Code Regs., tit 2, § 599.684.) Substantial evidence is evidence that a reasonable person "might accept as adequate to support a conclusion" (Estate of Teed (1952) 112 Cal.App.2d 638), or evidence "that is reasonable, credible and of solid value." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634.) Respondent's decision to withhold appellant's MSA is not reasonable or of solid value.
Appellant's supervisor appears to have treated him differently than other employees. This is seen when an employee who, like appellant, failed to wear protective safety gear on January 15, 2014, was not written up or denied his merit salary adjustment. In fact, NAME REDACTED testified that other employees had failed to wear protective safety gear on more than one occasion and were never written up. Similarly, other employees were verbally counseled and provided an opportunity to cure their workplace deficiencies, and did not lose their merit salary adjustment. The appellant was not allowed that opportunity.
The appellant was not notified of his alleged deficiency of not wearing the proper footwear for nearly nine (9) months. In other words, he was not given an opportunity to cure the alleged deficiency, and was only notified when his merit salary adjustment was denied. Incongruously, other employees were evaluated annually through an IDP, but the appellant was never provided an IDP. Simply stated, NAME REDACTED gave other employees a chance to cure any deficiencies but failed to provide the appellant the same opportunity to cure. NAME REDACTED denial of appellant's merit salary adjustment is not reasonable.
"Conduct which lacks any reasonable basis or is without any rational support whatsoever may be considered to be arbitrary and capricious." (Madonna v. County of San Luis Obispo (1974) 39 Cal.App.3d 57.) The appellant was denied his merit salary adjustment for wearing tennis shoes, even though NAME REDACTED admits wearing tennis shoes in the shop. NAME REDACTED testimony, 'it's okay for him to wear tennis shoes' is not believable as he could cite to no rule which exempts him from wearing protective safety shoes.
Moreover, at least one other employee was not written up for lacking the requisite protective safety gear. Applying a different set of standards for the same or similarly situated employees and making up separate rules for the supervisor is unfair conduct. "Conduct which is not supported by a fair or substantial reason is also arbitrary." (Evans v. Unemployment Ins. Appeals Bd. (1985) 39 Cal.3d. 398.)
Furthermore, NAME REDACTED testimony is suspect. When asked whether he knew the appellant had filed a complaint against him with his supervisor, the Manager, he conveniently cannot recall when he learned of appellant's complaint. Then he testified the complaint was not really about him – only his name was mentioned. This was successfully contradicted by the appellant who testified credibly he had lodged a complaint regarding NAME REDACTED with the Manager, and he feared retaliation. Not only is NAME REDACTED arbitrary in meting out discipline to his employees, his testimony lacks the solid value required to be substantial evidence.
If the appellant's behavior lacked the necessary efficiency during his entire year of working under NAME REDACTED, his behavior should have been documented. He should have been counseled and given an opportunity to cure his deficiencies. Therefore, the respondent's conduct in denying the appellant his MSA is not supported by substantial evidence.
The appellant proved by a preponderance of the evidence that notification of the denial of his merit salary adjustment was untimely. The appellant proved by a preponderance of the evidence the denial of his merit salary adjustment was not supported by substantial evidence.
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THEREFORE, IT IS DETERMINED, the appeal of denial of merit salary adjustment, issued to appellant, by the Department of Transportation, dated July 23, 2014, is granted. Respondent shall approve appellant's merit salary adjustment effective July 31, 2014 and pay him accordingly.
Updated: October 20, 2016