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DPA Case Number 02-A-0135 - Protest Of Involuntary Transfer

Final Non-Precedential Decision Adopted: March 6, 2003

By: Howard Schwartz, DPA Chief Counsel


This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on January 14, 2003, at Riverside, California.
Appellant was present and was represented by Robert E. Scott, Attorney.
Matthew Botting, Chief Counsel, represented the Department of Alcohol Beverage Control (ABC), respondent.
Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.


Respondent transferred appellant from her position as District Administrator in the Santa Ana District Office (SADO) of ABC to a position as District Administrator in the El Monte Office effective December 1, 2002. The appellant filed a request (appeal) from involuntary transfer on November 18, 2002. The appeal complied with the procedural requirements of Government Code section 19994.3 and Johnson v. DPA (1987) 191 Cal.App.3d 1218.


Appellant claimed she was transferred for purposes of both harassment and discipline.
She claimed respondent intended to harass her because management knew she did not want to transfer, and knew she did not like to commute.
Appellant argued the transfer was disciplinary because management was displeased because she referred some clerical employees to the Employee Assistance Program (EAP).


Respondent has approximately 24 branch offices that are divided into the Northern and Southern Divisions. Each division is headed by an Assistant Director. Deputy Division Chiefs report to the Assistant Directors and oversee the branch offices. District Administrators supervise branch offices and report to the Deputy Division Chief.
The Deputy Division Chief was appellant’s immediate supervisor from May 1998 through August 2001. The Deputy Division Chief then shared this supervisory responsibility with a second Southern Deputy Division Chief from August 2001 through December 2001. Another Deputy Division Chief became appellant’s supervisor in April 2001. At that time appellant’s immediate supervisor was promoted permanently to the position of Assistant Director of the Southern Division. The Southern Assistant Director moved to supervise the Northern Division. The Southern Assistant Director then became appellant’s second level supervisor.
The SADO is one of 13 Southern Division Offices. The SADO is the Southern District’s busiest office. It had a reputation as a fast-paced, high volume office with much public contact. SADO had consistent problems with workload, retention, staffing and moral.


Appellant testified that at or near the time of her promotion in 1998, she told the Southern Assistant Director she “did not commute well.”
In December 2000, appellant heard a rumor that she was going to be transferred. She asked the Southern Assistant Director about it. He responded, “why, did you do something wrong?” Appellant then told Southern Assistant Director she hadn’t done anything wrong; she did not want to transfer; and she did not want to commute. Appellant was not transferred at that time.
In April 2001, the Southern Assistant Director visited the SADO. During the visit he told appellant something to the effect that she wasn’t taking care of business and if she didn’t take care of business, she was going to be transferred. Appellant perceived this as a threat.
Appellant felt the Southern Assistant Director constantly criticized her but did not offer guidance or direction. In particular, he criticized her choice of a clerical supervisor. She found this “demoralizing.” At the time of hearing, appellant was seeking medical treatment to deal with the Southern Assistant Director’s oppressive management style.
In April 2001, the Southern Assistant Director began talking to appellant about “management by walking around.” According to appellant, the Southern Assistant Director spoke to her on a number of occasions about this concept. The Southern Assistant Director described this concept as walking around in the morning and talking to the employees to learn what was going on with the employees and how they were feeling each day. Appellant described the concept as the Southern Assistant Director telling her to walk around and say good morning to her staff.
Appellant testified she did not understand why the Southern Assistant Director consistently talked about this concept and she did not understand why he believed she was not communicating with her staff. She believed she had adequate communication with SADO personnel and that she was addressing their needs the best she could without response or assistance from respondent.
On July 2, 2001, appellant met with the Southern Assistant Director, the Northern Assistant Director and the second Southern Deputy Division Chief to discuss the SADO workload. During this meeting, the Northern Assistant Director told appellant she would not be “moved” unless she wanted to be “moved.” Appellant interpreted this to mean she would not be transferred from the SADO without her consent.
Appellant received her 2001 performance appraisal report from the Southern Assistant Director in April 2002. The Southern Assistant Director rated her as meeting and exceeding performance standards. He also noted that the SADO “continued to have one of the Department’s highest turnover rates due to transfers to other agencies.” He reminded her that, “The retention problem will need to be addressed.” The Southern Assistant Director also commented that appellant had shown great improvement in establishing the lines of communication with her staff.
Communication, delegation, morale, and personnel retention were all continuing areas that the Southern Assistant Director had pointed out to appellant in the three previous performance appraisals he had completed for her during her 1999 probationary period.
Appellant testified her management and supervisory skills have improved since she first became a District Administrator. When she first became a manager, she found it difficult to supervise people who did not have the same work ethic. At respondent’s request, she took various emotional control and communication classes to help her relate to her staff and to improve her patience.
The Southern Assistant Director knew that appellant had submitted numerous recommendations to improve SADO’s production, retention, morale, staffing and workload problems. It was undisputed that appellant advised the Southern Assistant Director by memoranda in January and August 2002 that she had addressed workload stress by providing the clerical staff with information regarding the EAP.
At the time of appellant’s transfer, the Southern Assistant Director considered appellant an excellent employee. He believed she had done everything she could do at her management and experience level to address the continuing problems at the SADO.
Appellant has received no prior disciplinary action or counseling memoranda.


On Friday, October 18, 2002, a SADO clerical employee telephoned appellant’s supervisor. The substance of the SADO clerical employees’ telephone conversation with appellant’s supervisor is unknown. On that same day, however, the supervisor notified appellant he would be visiting SADO on Monday, October 21.
Before conducting individual meetings with three clerical employees on October 21, the supervisor met with appellant. During this meeting, the supervisor told appellant he had been contacted by the SADO clerical employee. The supervisor and appellant specifically discussed one clerical employee and generally discussed that SADO clerical employees were unhappy. The supervisor referenced employees being sick and using sick leave. He told appellant the SADO front office was perceived as “dysfunctional.”
After this discussion with appellant, the supervisor met with SADO clerical employees. After these individual discussions, the supervisor met with appellant again. He told appellant the SADO clerical employee referenced problems with appellant’s “micro managing;” that the SADO clerical employee felt appellant had “spoken down to her like a naughty child;” and that the SADO clerical employee was unhappy about various house cleaning projects appellant had assigned. The supervisor told appellant she had a lot of unhappy people who were using EAP. He told appellant she was perceived by “those above” that her solution to the problem was to “throw more people at it.” He also told appellant that if it wasn’t for the hiring freeze, the clerical employees would “leave.” The supervisor reported his discussion to the Southern Assistant Director.
On October 24, 2002, second Southern Deputy Division Chief called appellant and told her to come to the Cerritos Office on October 25 to discuss her October 21 conversation with the supervisor. He said something to the effect that he and the Southern Assistant Director wanted to “update her.”
During the meeting on October 25, 2002, the Southern Assistant Director told appellant he had decided to do a District Administrator rotation and that she was being transferred to the El Monte Office as its District Administrator effective December 1, 2002. The Southern Assistant Director told appellant something to the effect “she had served her time in Santa Ana and it was time for someone else to put in time there;” that “she had been through a lot there and it wasn’t fair to put a new District Administrator in such a busy office;” and that “she had been there four years and she couldn’t expect to be there forever.”
Appellant became upset. She felt as though she were being told she could not handle the job at the Santa Ana Office. She told the Southern Assistant Director she did not want to transfer and she did not want to commute to the El Monte Office. She said things in Santa Ana were finally getting better and running more smoothly.
The Southern Assistant Director responded that the clerical staff wasn’t running smoothly. The Southern Assistant Director asked appellant if she knew how may of the Santa Ana clerical employees were participating in the EAP. She responded two. He then corrected her and told her three clerical employees were in the EAP. Based on appellant’s response, the Southern Assistant Director believed appellant had not successfully engaged in the walk around management style that he had been discussing with her since April 2001 and he believed she did not know “what was going on” with the clerical employees.
The Southern Assistant Director then told appellant two Southern Division employees were being sent to the SADO to assist the clerical staff and to identify ongoing issues. The meeting ended because appellant was distraught.


Appellant alleged she was transferred for improper motives. She argued the transfer was done to harass her because the Southern Assistant Director knew she did not want to be transferred, and he knew she did not cope well with the commute environment. She argued the transfer was disciplinary because she referred employees to EAP.
Respondent contended appellant was transferred “for the good of the department” because a different management perspective and management style was needed to ensure a smooth operating, productive front office clerical staff at the SADO. The Southern Assistant Director testified he received information from the supervisor and employee’s appellant supervised in the past as well as those who worked for her at the time of the transfer that led him to believe appellant was a “micro-manager” who did not delegate authority. He testified that because she wanted input on all aspects, she stifled her staff and negatively affected productivity.
The Southern Assistant Director testified that although he believed appellant managed the SADO the best she could, he felt another management style could achieve a smoother functioning, more productive clerical operation. He determined that the management style of the then District Manager of the Lakewood/Long Beach Office would be more suitable to the high volume, demanding environment of the SADO and more in line with the management approach he wanted to see implemented at that office. The Southern Assistant Director believed both appellant and respondent would benefit from appellant’s transfer to an office with less volume and less stress.
The Southern Assistant Director did not transfer appellant to the Lakewood/Long Beach Office to take that District Manager’s position because appellant’s husband is an employee there. Therefore, he transferred the then District Manager in the El Monte Office to the Lakewood/Long Beach Office. He then transferred appellant to the El Monte Office, and transferred the Lakewood/Long Beach Office District Manager to the SADO.
Appellant alleges respondent’s business reason for transferring her is pretextual because she was never told performance deficiencies were the reasons for transfer.


Appellant was transferred from the position of District Administrator of the SADO to the District Administrator of the El Monte Office. She retains the same job classification and title. There was no reduction in salary or decrease in benefits.

Her commute time increased from approximately 30 to 40 minutes one way to the SADO to approximately 1 hour and 20 minutes one way to the El Monte Office.

Her mileage also increased from approximately 19 miles one way to the SADO to approximately 48 miles one way to the El Monte Office.

Appellant’s commute to her medical appointments has also increased. When she worked in the SADO, she left work approximately 15 minutes prior to her scheduled appointment time. Since she transferred to the El Monte Office, appellant has requested, and respondent as allowed her to leave two to three hours prior to her scheduled medical appointments.

Appellant’s increased commute did not result in additional expense to appellant because she uses a State vehicle.

Appellant also testified that her transfer to El Monte impedes her ability to respond to office emergencies. While she could be at the scene of an emergency in the SADO in 15 to 20 minutes, it will take her much longer to respond to an emergency in the El Monte Office. The District Administrator does not have the sole responsibility for responding to emergencies.

The Southern Assistant Director testified he has received positive feedback from employees, attorneys, and other stakeholders at the SADO since transferring appellant. He also testified that although appellant had been at the El Monte Office for only a short time, she had already positively addressed some personnel problems in that office.

* * * * *


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. 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-geographic and does not require him or her to change his or her residence.
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 his or her former position.
Appellant was transferred pursuant to section 19994.1. Her transfer was non-geographic in nature in that it did not require her to change her residence. The sole issue to be addressed is whether or not appellant’s transfer was improperly motivated, or if it was the proper exercise of administrative discretion.
Respondent’s claim that appellant was transferred so that it could introduce a new management style and prospective to the SADO is supported by the record. The record shows that appellant’s communication skills, delegation, and the retention at SADO was a point of emphasis and discussion between appellant and the Southern Assistant Director since 1999.
The record also shows that appellant and the Southern Assistant Director had different concepts of management style and different opinions regarding the effectiveness of appellant’s relationship with the SADO clerical employees. The Southern Assistant Director wanted appellant to implement a management style at SADO which would foster communication between appellant and the clerical staff, and thus help reduce turnover and work stress. He believed the concept of management by walking around would assist in accomplishing this.
In contrast, appellant translated the walk around management concept more superficially. She testified she was instructed to walk around to say good morning. She did not understand why the Southern Assistant Director kept mentioning the concept to her because she thought she had adequate communication with her staff.
Appellant’s claim that she was transferred because she provided EAP information to the clerical staff is without merit. Although the Southern Assistant Director was aware of the stress on the clerical staff and appellant’s referrals to the EAP as early as January 2002, he did not initiate appellant’s involuntary transfer until it became apparent to him in October 2002 that appellant had not been able to adequately address lingering clerical problems. It was only at this point that he decided that a new perspective might provide a smoother operation.
Respondent’s claim that it wanted a different management perspective at the SADO is also supported by the fact that three management employees were transferred to obtain the exact style the Southern Assistant Director felt would work best at the SADO. There was no evidence that any of these employees transferred voluntarily.
Although the Southern Assistant Director may have preferred not to involuntarily transfer employees, there was no evidence that respondent or the Southern Assistant Director had not involuntarily transferred employees in the past or that respondent had a policy against such a transfer.
There also was no evidence that the distance any employee was required to commute was a consideration at any time in the assignment of any employee. There was no evidence that any of the newly transferred District Administrator’s new commute was any longer or shorter than appellant’s new commute.
A transfer is disciplinary in nature only if imposed for purposes of punishment. (See White v. County of Sacramento (1982) 31 Cal.3d 676, 683.) Other than appellant’s perceived inconvenience, appellant suffered no harm as a result of the transfer. Her salary and benefits remained the same. She incurred no additional financial loss as a result of her increased commute. She never received any counseling or written reprimand as a result of any misconduct.
Respondent did not abuse its discretion in transferring appellant because it wanted to implement a different management style at the SADO.
As stated in Orange County Employees Association v. County of Orange (1988) 205 Cal.App.3d 1289, 1294:
“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.”
Although the Southern Assistant Director may have been more specific in his October 25, 2002, explanation to appellant, appellant’s emotional reaction to the news of transfer can reasonably be held to have tempered and abbreviated the discussion.


that the protest of involuntary transfer effective December 1, 2002, is denied.
  Updated: 5/22/2012
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