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As the EEO Officer, appellant reported to the Director. The Deputy Director was responsible for the Department’s day-to-day operations. In March 2006, the Director and the Deputy Director received from appellant an “Equal Employment Opportunity Office Executive Summary and Work Plan 2006.” The report outlined respondent’s EEO program and plans for 2006. Neither the Director nor Deputy Director discussed the report with appellant.
In or about April 2006, the Deputy Director began discussing EEO Programs with officials from various State departments. During the course of these discussions, the Deputy Director became aware of a December 22, 2005 document (“pinkie”) issued by the State Personnel Board (SPB). This pinkie recognized the revised Government Code section 19795 (a) and provided guidance on the role, relationships and characteristics of a department EEO Officer.1 In reviewing the pinkie and the revised statute, the Deputy Director noted the EEO Officer was to be “at the managerial level.” He knew the appellant was at a supervisory level. The Deputy Director decided respondent’s EEO program needed to be “restructured” and placed under an employee in a higher classification. The Deputy Director did not discuss the SPB document with appellant. He did discuss the restructuring of the EEO Program with the Director and the Human Resources Chief.
The Deputy Director met with appellant on May 10, 2006 to inform her she was being transferred. The Deputy Director told appellant she was being transferred because he wanted a “more robust EEO Program” headed by an SSM II or Staff Services Manager III (SSM III).2 He generally indicated he wanted a “better” program that encompassed more in-depth investigation and a more effective counselor program. When questioned by appellant, the Deputy Director could not be more precise on the specifics of the new program. The Deputy Director asked appellant to work with the Human Resources Chief to identify available positions that might interest her. Appellant told the Deputy Director she was not interested in any other position. She asked why she could not remain in the EEO Program and be supervised by the higher level employee. The Deputy Director responded that he did not anticipate having an SSM I in the restructured program. Appellant demanded a meeting with the Director.
Appellant met with the Director on May 12, 2006. She reiterated her conversation with the Deputy Director. The appellant expressed her concern that the transfer was punitive. The Director was supportive of a change in leadership in the EEO Program. The Director and appellant discussed the movement of personnel from one position. The Director explained he had witnessed the involuntary transfer of other personnel and he believed such transfers happened “in the normal course of business.” The Director told appellant he would have the Human Resources Chief call her to discuss available positions. He asked appellant to go over the list of available positions and to make specific notes if any assignment would not “work” for her. The Director indicated they would meet again.
The Human Resources Chief called appellant on the afternoon of May 12. She left a message asking appellant to call her back to schedule an appointment. Appellant did not return the call.
Appellant drafted a letter to the Director on May 15, 2006 and hand-delivered it to him the next day. She recounted the chronology of events regarding her transfer, informed the Director she believed the transfer was punitive, and indicated she was not interested in meeting with the Human Resources Chief.
The Director responded to appellant’s May 15, 2006 letter on May 16, 2006. He reiterated respondent’s desire for a more “robust EEO Program” and indicated such a restructured program would be consistent with the SPB’s December 22, 2005 memorandum. The Director again assured appellant her transfer was not intended to be disciplinary or harassing. He again requested that she meet with the Human Resources Chief to review available positions that might interest her and fit her skills. He informed her that if she failed to meet with the Human Resources Chief by close of business on May 19, 2006, her placement would be determined by the Department and she would be required to assume the duties of a new position on May 29, 2006. Appellant did not meet with the Human Resources Chief.
The Director attempted to meet with appellant on May 22, 2006. Appellant did not meet with the Director at that time because the Deputy Director of the Legal Division was scheduled to attend the meeting and appellant felt she needed representation.
A meeting attended by the Director, Deputy Director of the Legal Division, appellant, and her representative was held on May 24. The Director informed appellant he had identified some issues that needed to be addressed in the Real Estate Services Division (RESD) and she was being transferred to a Labor Relations position in that Division. This was a new position. He ordered appellant to report to the Chief, Business Operations Project Planning (BOPP) Branch on May 29.
Appellant was provided with a copy of her new duty statement on May 26.
When appellant reported to the BOPP Chief, the Chief told her she would be reporting directly to a SSM II. The Chief also told appellant she didn’t have a duty statement for her new position and she didn’t know when she would be getting a copy. Appellant’s direct supervisor also did not have any specific information about appellant’s job duties.
Appellant had nothing to do for two or three days until her supervisor asked her to analyze the duties in the duty statement and to submit some “background” for some of the duties. Appellant completed her analysis on or about June 20, 2006. As a result of her investigation and analysis, appellant concluded the RESD Labor Relations position was created to “put her in a corner.” She based this conclusion on the following analysis:
(1) Respondent’s past operating practices limited the time an employee performed one specific function to 30%. The duty statement estimated appellant would spend approximately 45% of her time acting as a liaison between RESD and the Labor Relations Section.
(2) The inter-relationship between respondent’s existing Labor Relations Division and the newly created RESD Labor Relations position was not defined. The duty statement assigned responsibilities to appellant that had historically been reserved to the Labor Relations Division. Although the duty statement appeared to change existing policies and practices, neither the appellant, the Chief of respondent’s Labor Relations Division, RESD Supervisors, nor appellants’ immediate supervisors had been advised of any change in policy and practice.
(3) Some of the changes reflected in the duty statement were not an improvement over existing procedures.
(4) The duty statement assigned duties that were impossible to perform. It referenced participation on Joint Labor Management Committees that did not exist.
(5) There was no workload associated with the Telework Program which was defined as comprising 20% of appellant’s work time. If there was such a work load, the duty statement did not clearly define it.
(6) The duty statement improperly defined the “language survey” work as annual when it was bi-annual. Responsibility for the work was previously assigned to the Human Resources Chief and completed by her Administrative Assistant.
(7) The task of conducting a survey involving disabled employees was discriminatory and therefore illegal.
(8) The duties described as “Labor Relations Notetaker,” estimated to consume 5% of appellant’s time, were previously performed by either employees doing collective bargaining or by a clerical person. Appellant estimated such duties would consume only 1% of her work time.
Appellant did not discuss her position or duty statement with the Chief of Human Relations, the Deputy Director, or the Director.
After the appellant gave the analysis to her supervisor, the supervisor informed the appellant her duty statement could be changed to reflect something “more meaningful.” The appellant and supervisor did not discuss changing the duty statement prior to hearing.
At the time of hearing, respondent was in the process of reviewing applications to permanently fill the EEO position.
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Government Code section 19994.1 permits an appointing power to transfer any employee under its jurisdiction ”(1) to another position in the same class; or (2) from one location to another whether in the same position, or in a different position . . .” An employee has the right to appeal an involuntary transfer that does not require her to change her residence. (Johnston v. Department of Personnel Administration (1987) 191 Cal.App.3d 1218.)
DPA has the authority to revoke a transfer and restore an employee to her original position if it finds the transfer was “made for the purpose of harassing or disciplining the employee.” (Government Code section 19994.3.)
Black’s Law Dictionary defines the phrase “for [the] purpose of” as meaning “with the intention of.” (Black’s Law Dict. (6th ed. 1990) p. 653.)
Appellant bears the burden of proving by a preponderance of the evidence that respondent transferred her from her EEO position with the intent of disciplining her. (Aguilar v. Atlantic Richfield (2001) 25 Cal. 4th 826, 850 citing Evid. Code 500.)
Appellant failed to prove she was transferred from her EEO position for the purpose of discipline. At the time respondent made its decision to transfer appellant from the EEO position, there was no evidence of ill-will or personality conflict between the parties. There was no evidence appellant had ever been disciplined or reprimanded. There was no evidence respondent was at all dissatisfied with appellant in any way, or that it was dissatisfied with her past performance as the EEO in the existing EEO Program.
Respondent’s lack of animus was demonstrated by its willingness to allow appellant to pick the position into which she wanted to transfer. Respondent reassigned appellant to the RESD Labor Relation position only after she refused to pick her own job and refused to explain why any other available position was insufficient or undesirable. Appellant failed to provide any reason why respondent was motivated to discipline her by transferring her out of her EEO position.
Although courts deciding retaliation cases often evaluate the reassigned position to determine if an adverse employment action occurred, (See Patton v. Grant Joint Union High School (2005) 134 Cal.App.4th 1378), such an evaluation is not determinative in this case. Appellant was assigned to the RESD Labor Relations position after respondent made its decision to transfer her out of the EEO position. The decision to assign appellant to the RESD position was made independent of the decision to transfer appellant.
Appellant did not allege she was retaliated against because she exercised a protected right to protest. And, a potential retaliation claim that arises after a properly motivated transfer decision is made is not within DPA’s jurisdiction.
It is understandable that appellant, who has had a lengthy and successful career with respondent, had difficulty accepting respondent’s decision to transfer her. She had never before been involuntarily transferred. The decision to transfer her was announced suddenly and unexpectedly. She valued her position. However, the evidence showed appellant’s transfer from her EEO position was made for valid operational reasons and should not be disapproved.