Final Non-Precedential Decision Adopted: October 15, 2001
By: Howard Schwartz, DPA Chief Counsel
This matter was set for hearing before Mary C. Campisi, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 11:00 a.m. on September 11, 2001, at Riverside, California. At the time and place set for hearing, it was continued to 1:00 p.m. on October 4, 2001, at Los Angeles, California. The ALJ appeared telephonically.
Appellant was present and was represented by Bill Sweeney, Labor Relations Representative, Association of California State Supervisors (ACSS).
Anthony Mischel, Assistant Chief Counsel, represented the Department of Industrial Relations (DIR), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.
On July 5, 2001, respondent issued appellant a memorandum placing him on notice that effective August 1, 2001, appellant was reassigned from the position of Supervisor of the Bureau of Field Enforcement (B of FE) Office at Santa Ana to the position of Supervisor of the Discrimination Complaint Investigation (DCI) Unit for Southern California at Los Angeles. On August 12, 2001, appellant mailed a protest (appeal) of involuntary transfer to DPA. The notice and appeal comply with the procedural requirements of Government Code section 19994.3.
The parties stipulated to the following facts regarding appellant’s employment.
In the Fall of 2000, appellant was responsible for organizing a series of unannounced inspections of racetracks throughout the State. These types of inspections are referred to as “sweeps.” These sweeps are staffed with DLSE employees from around the State and have to be carefully orchestrated to ensure that there is adequate staffing at each sweep location.
In April 2001, DLSE held competitive examinations for a management position of Regional Manager. The supervisor of the Santa Ana wage claim office impressed the State Labor Commissioner, who was one of the panel members. The supervisor has experience supervising wage claim offices but not B of FE offices. The State Labor Commissioner requested that the Assistant Chief determine if the supervisor was interested in obtaining experience supervising B of FE offices, as a way to broaden the supervisor’s experience. This was consistent with the State Labor Commissioner’s often stated desire to see more cross training of staff in order to increase the sense of DLSE working as a team.
The Assistant Chief met with the supervisor sometime in May 2001 to explore whether the supervisor would like to supervise a B of FE office. The discussion was very general. The supervisor asked the Assistant Chief to which B of FE office he contemplated sending him. The Assistant Chief responded that this discussion was just a general inquiry as to the supervisor’s interest. At no time was a specific B of FE office mentioned or discussed. The supervisor told the Assistant Chief he wanted to think about whether he was interested in a transfer.
The Assistant Chief believed the supervisor would eventually agree to transfer to B of FE.
During the final stages of planning the racetrack sweeps described above, on May 24, 2001, appellant’s supervisor asked appellant to check to see if he could get more staff committed. Appellant sent a status report on seven (7) other persons commitments or medical situation. On May 30, 2001, appellant’s supervisor asked him to assign three (3) of the individuals listed. Appellant requested on May 31, 2001, one employee be excused from the sweep and that another be excused for one (1) day of the sweep. Appellant’s supervisor responded on May 31, 2001, that she needed both employees. Appellant responded on May 31 that he would have them report.
On or about June 9, 2001, the State Labor Commissioner and the Assistant Chief began the formal process for requesting the new DCI Supervisor position in Southern California. At the time, based upon his conversations with the Assistant Chief, the State Labor Commissioner believed that the supervisor would agree to transfer to B of FE and that he would transfer appellant to the Santa Ana wage claim office. Therefore, the State Labor Commissioner initially believed he would hire the new DCI Supervisor from a newly created supervisor’s civil service list. The State Labor Commissioner had prepared a State Form 1 to create this position. No incumbent was listed.
On June 22, 2001, the Assistant Chief went into appellant’s office and informed him that effective July 1, 2001, he was being involuntarily transferred to the Santa Ana Wage Claim Office and out of the B of FE. Appellant asked the Assistant Chief what the reasons were; and the Assistant Chief stated that appellant’s staff and appellant were uncooperative. Appellant asked the Assistant Chief to be more specific. The Assistant Chief responded that appellant’s Deputies had told someone during a sweep that they stated, “That is not how we do that in Santa Ana or San Bernardino.”
Appellant asked the Assistant Chief to be more specific; and the Assistant Chief stated that the employee had told someone this but he lacked specificity. The Assistant Chief went on to state that appellant had exhibited uncooperative behavior regarding sweep activity and referred to the racetrack sweep at Hollywood Park Race Track. The Assistant Chief went on to say that appellant was “reluctant.”
Appellant asked why his supervisor was not present and was informed that in actions such as these, and the Assistant Chief was the one to talk to. Appellant voiced an objection to the transfer and asked what recourse he had. The Assistant Chief informed appellant that he could talk to the Labor Commissioner. Appellant asked who was involved in the decision; and the Assistant Chief said, “I made the decision.” Appellant made follow-up calls and sent e-mail to the State Labor Commissioner, but did not receive a response.
The Assistant Chief then spoke to the supervisor about the switch of responsibilities. The supervisor told the Assistant Chief that he had thought about the transfer and preferred to stay in the wage claim office for family reasons. He requested the Assistant Chief and the State Labor Commissioner reconsider the decision. The Assistant Chief agreed to discuss this with the State Labor Commissioner.
The Assistant Chief and State Labor Commissioner discussed this situation early the next week and decided there was no reason to make two involuntary transfers just to give the supervisor experience he was not interested in obtaining. Therefore, the switch of supervisors was cancelled.
On July 5, 2001, appellant received a memorandum reassigning him to the position of Supervisor of the DCI Unit for Southern California. The position is located at 320 W. Fourth Street, Room 450, Los Angeles. The transfer was effective on August 1, 2001. The position of Supervisor of the DCI Unit in Los Angeles was newly created. Unlike other DIR positions, no open-exam bulletin was announced, no requests for interest in the position were sent out, no job interviews were held and no prior discussions of any kind were conducted with appellant.
At the hearing the parties stipulated that appellant’s transfer was unrelated to productivity.
Appellant testified that he objected to the “reason” and the “way” he was transferred. In June 2001, appellant was notified that he would be transferred on July 1, 2001, to the position of Supervisor of the Santa Ana Wage Claim Office. The notice of transfer came on the heels of a racetrack sweep. He was advised he was being transferred for being uncooperative during that sweep and not offering sufficient staff for the sweep. When the original transfer was withdrawn, appellant was issued a second notice of transfer to the new position of Supervisor of the DCI Unit for Los Angeles. Appellant presumed that the second transfer order, which immediately followed the first order, was similarly because management perceived him as uncooperative during the May racetrack sweep.
Labor Commissioner testified that he and Assistant Chief made the decision to transfer appellant to the position of Supervisor of the DCI Unit for Southern California. He also testified that after appellant received his notice of transfer, he and the Assistant Chief met with appellant. Appellant requested the meeting to object to the transfer. He raised concerns that the transfer was punitive. The State Labor Commissioner told appellant at that time that the decision to place him in charge of the Southern California DCI Unit was not punitive and was strictly a business decision.
The State Labor Commissioner testified similarly that the transfer was business-related and not intended to be punitive. He stated he originally considered appellant unavailable because he had been selected to supervise a wage claim office. (He is of the opinion that unlike B of FE offices, wage claim offices should always be supervised.) When the original transfer order was rescinded, he considered appellant available for the DCI position. After he reviewed the availability of experienced supervisors, he concluded appellant was one of only two supervisors in the Los Angeles area who had cross training in B of FE and wage claim offices, which was essential to the position. The other qualified supervisor was supervising the Long Beach Wage Claim Office. The State Labor Commissioner preferred to not leave a wage claim office unsupervised, even temporarily, so he did not select the other qualified supervisor.
The State Labor Commissioner acknowledged that there was an available promotional list and his original intention was to review the list and select an appropriate candidate. However, he did not care for the lack of experience and the lack of cross training exhibited by the promotional list. Because the cases in the DCI Unit are “high profile,” the State Labor Commissioner wanted someone with broad experience, which included wage claim adjudication and field investigation.
The State Labor Commissioner further testified that when making decisions regarding supervision he tries to “look at the department as a whole.” The DCI Unit is one of the only units where he has to personally sign his name to what is done; and it must be done properly and legally. He stated his own name and reputation is on the line with each decision that issues from that unit and he wants to make sure that they have experienced people in the positions to ensure the integrity of the unit. He was not comfortable working off the existing promotion list to fill the DCI Unit slot for Southern California. From that perspective, he considered appellant the best and only qualified (cross-trained) supervisor available for the position. Therefore, when appellant became available, he was selected. Respondent has routinely transferred appellant over the years to fill various supervisory slots; and appellant has not objected.
Appellant testified that he did not apply for the transfer. He also testified that respondent had an existing list from which to promote an employee to the position of Supervisor of the newly created DCI Unit for Southern California. He, himself, preferred to remain in his position as Supervisor of the Santa Ana B of FE. While performing that job he enjoyed the satisfaction that came with working with agriculture and farm enforcement issues and with low-end wage and immigrant workers. He preferred those responsibilities remain the focus of his career.
Appellant conceded during his testimony that the transfer did not involve a demotion; that it did not involve a reduction in pay; that he was still a supervisor; and that the commute distance to his new position was less than his prior commute distance. He also acknowledged that the supervisors in both positions perform important functions for the division. However, he felt disadvantaged because he would have better career development in his prior position as a supervisor in the B of FE.
The State Labor Commissioner testified he considered appellant the most appropriate candidate for the DCI Unit Supervisor position given his broad experience. He also testified that the DCI Unit was a very high profile position.
There was no evidence that the position of DCI Unit Supervisor for Southern California in any way disadvantaged appellant.
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 the employee and not for a legitimate business reason, DPA has the authority to disapprove the transfer and return the employee to his or 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 him to change his residence.
Appellant was transferred pursuant to Section 19994.1. His transfer was non-geographic in nature in that it did not require him to change his 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 State Labor Commissioner.
Respondent claimed that appellant’s transfer was for legitimate business reasons, which is supported by the record. The State Labor Commissioner’s testimony that appellant was one of only two qualified (cross-trained) supervisor’s eligible for the position was unchallenged. His testimony that unlike B of FE offices, wage claim offices cannot go unsupervised even temporarily was unchallenged. The only other qualified candidate for the position of DCI Supervisor, Southern California, was supervising a wage claim office. Therefore, it is reasonable to conclude that appellant was the most viable and experienced candidate available to assume the new position of DCI Unit Supervisor for Southern California.
Assuming arguendo, that respondent transferred appellant because management perceived performance deficiencies in appellants and his staff’s participation in the racetrack sweeps, appellant has still failed to prove a “punitive” transfer. Appellant assumes a transfer based on performance deficiencies, whether perceived or real, is per se punitive. However, the courts have determined that there is a difference between a transfer to punish for a deficiency in performance versus a transfer to compensate for a deficiency in performance. 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. As stated in Orange County Employees Association v. County of Orange (1988) 205 Cal.App.3d 1289, 1294:
“Deficiencies in performance are a fact of life. Right hand hitters sit on the bench against certain pitchers, some professors write better than they lecture, some judges are more temperamental with criminal cases than others. The manager, chancellor or presiding jurist must attempt to find the proper role for his personnel. Switching Casey from shortstop to second base because he can’t throw to first as fast as Jones is not in and of itself a punitive transfer.”
Appellant has been routinely transferred over the years at management’s request. The current transfer does not entail any financial loss—no reduction in pay or decrease in benefits. Its responsibilities are commensurate with appellant’s prior duties as a Supervisor of the Santa Ana B of FE Office. It is not a demotion. There was no disciplinary action of any type taken against appellant prior to or at the time the transfer occurred. Appellant’s conclusion that the particular position is a career hindrance is unsupported in the record. Therefore, even if the Labor Commissioner considered appellant’s performance, or lack thereof, in field enforcement, it would be his prerogative as an administrator to shift appellant to a supervisory position which better matched his broad experience and talents in supervising both wage claim office and B of FE office employees.
For the reasons set forth above, it is concluded that appellant failed to establish that the transfer was punitive in nature or that it constituted a transfer for disciplinary purposes pursuant to Government Code section 19994.3. Further, it is concluded that the Labor Commissioner properly exercised his administrative discretion in electing to transfer appellant to the position of DCI Unit Supervisor, Southern California.
that the Protest of Involuntary Transfer effective August 1, 2001, is denied.