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Transfer Appeal 12-C-0185

CalHR Case No.:  12-C-0185

Appeal of Involuntary Non-Geographic Transfer

Final Decision Adopted November 5, 2012
By:  Julie Chapman, Director
 

PROPOSED DECISION

This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Human Resources (CalHR) (fn. 1) at 1:00 p.m. on September 19, 2012, in Riverside, California.  Appellant was present and self-represented.  Kelly R. Nordli, Staff Counsel, represented the Employment Development Department (EDD), respondent. 

I - JURISDICTION

California Government Code sections 19994.1 and 19994.3 authorize CalHR to return an employee to her former position if the involuntary transfer failed to follow statutory requirements; or was the result of harassment; or for disciplinary purposes.   
 
On July 6, 2012, respondent, EDD, served appellant, with a Memorandum titled, “Reassignment.”  Respondent then transferred appellant from its Santa Maria, California office to its San Luis Obispo, California office effective August 1, 2012.  Appellant filed an appeal from involuntary transfer on July 11, 2012.  The appeal complies with the procedural requirements of Government Code sections 19994.1 and 19994.3.  CalHR has jurisdiction over the appeal.

II - ISSUES

The issues to be determined are:
 
1. Was the involuntary transfer of appellant unlawful under Government Code section 19994.1?
 
2. Was the involuntary transfer of appellant made for the purpose of harassment or discipline in violation of Government Code section 19994.3?

III - FINDINGS OF FACT

The evidence established the following facts by a preponderance of the evidence:
 
Appellant, began her career with the Employment Development Department, respondent, on April 3, 1989.  Throughout her 23-year career with respondent, appellant was always an exceptional and valued employee.  In her current position as Employment Program Manager I, appellant is an excluded employee.   Appellant worked in the Santa Maria office during her entire 23-year career. 
 
Appellant’s supervisor is the Cluster Manager, Santa Barbara, San Luis Obispo Counties, and manages a 3-office cluster.  That 3-office cluster is comprised of a Santa Barbara, a Santa Maria and a San Luis Obispo office. 
 
On July 6, 2012, appellant’s supervisor notified her she was being reassigned from the Santa Maria office to the San Luis Obispo Workforce Service office effective August 1, 2012.  San Luis Obispo, California is approximately 28 miles from Santa Maria, California.  Appellant lives only 7 miles from respondent’s Santa Maria, California office.
 
The reassignment memorandum, stated in relevant part:  “[y]our skills and experience will be an asset in San Luis Obispo County’s transition to an integrated service delivery model.  I am extremely appreciative of your contributions as a member of our management team and in your role as the alternate manager for the cluster.  The support you have provided [Workforce Service] and partner staff on a day to day basis has been exemplary. . . .  Thank you for all you do each and every day, I know you will continue to provide excellent customer service to our internal and external customers. [signed [appellant’s supervisor]]

The Personnel Management Handbook (PMH) is respondent’s Administrative Manual.  The Administrative Manual outlines the various procedures and policies to be followed by its staff.  Section 3-1711 of the Administrative Manual provides:  “[i]nvoluntary transfers require the approval of the Director’s Office.”  And, “[a]ll requests for involuntary transfer must be submitted to HRSD, CS for approval and require the approval of the Director’s Office.”  On its website, respondent defines involuntary transfer as a transfer, “involuntary to employee which reasonably requires an employee to change their residence.”

The Administrative Manual also provides at section 3-6130, “[s]upervisors and employees are required to take any reasonable course of action which will maintain the integrity of Department operations and to avoid any irregularities, accusations of favoritism, and questionable or inappropriate acts.  To assure this, good management practices call for periodic rotation of personnel in those types of assignments where allegation can be made of partiality, or where the direct handling of public funds is involved.”

On July 10, 2012, appellant’s supervisor sent an email to her staff announcing the changes to the Santa Maria, Santa Barbara and San Luis Obispo cluster.  It stated in relevant part:  “[Appellant] will assume complete responsibility of site management for the San Luis Obispo office and provided (sic) event/partner support in the Grover Beach office as needed.  [Appellant’s] primary station will be in the San Luis Obispo office, she will continue to have a presence in all of the cluster offices in her capacity as the Veterans program supervisor.  [Appellant] will continue to assume the Veterans program oversight as well as the everyday activities of the SLO office, and play a crucial part in the Integrated Service Delivery model launch.  She will also continue as the Alternate Manager for the cluster.”
 
On September 7, 2012, respondent sent a request to fill the vacant Employment Program Manager I position at its Santa Maria office.  The position request indicated a bi-lingual, Spanish/English, incumbent was required.  Appellant is not bi-lingual.

IV - ANALYSIS

An appointing power may 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 as specified in (1) or in Section 19050.0. (Gov. Code, §19994.1(a).)  Because appellant is an excluded employee, California Code of Regulations, title 2, section 599.714.1(b)(D)(2) is instructive.  That section defines a geographic transfer for excluded employees as, “[t]he move must be a minimum of 50 miles plus the number of miles between the old residence and the old headquarters.”
 
Appellant was not unlawfully transferred under government Code section 19994.1(a)
 
Respondent transferred appellant to its San Luis Obispo, California office which was approximately 28 miles from her former office in Santa Maria, California.  Appellant’s transfer as an excluded employee is governed by California Code of Regulations, title 2, section 599.714(b)(D)(2).  As noted above this defines a geographic transfer as 50 miles or more.  Because appellant was not transferred 50 miles or more from her old worksite, she was not unlawfully transferred under government Code section 19994.1(a).

Furthermore, the involuntary transfer did not reasonably require appellant to change her residence.  Therefore, by regulation and respondent’s definition of an involuntary transfer, appellant was not involuntarily transferred because she was not reasonably required to change her residence.  Additionally, appellant learned at the hearing she was only required to spend three days at the San Luis Obispo office, further negating the need to change her residence.
 
The transfer of appellant was not in violation of Government Code section 19994.3.

Government Code section 19994.3 prohibits transfers “made for the purpose of harassing or disciplining the employee.”  CalHR 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.  Discipline is defined as correction, chastisement, punishment, penalty.  To bring order upon or bring under control.  (See Black’s Law Dict. (6th ed. 1990) p. 464, col. 1.)

Appellant’s argument the transfer created a severe financial hardship because of gas prices and the consumption of time caused by the longer commute is not persuasive.  A transfer is disciplinary in nature only if imposed for purposes of punishment.  (White v. County of Sacramento (1982) 31 Cal.3d 676.)  It is abundantly clear that the appellant was a highly valued member of the management team and her exceptional skills were needed in another part of the management cluster.  Though the increased commute cost and inconvenience to her family is unfortunate, it is merely a by-product of respondent’s decision, and not designed to discipline appellant. 

In fact, appellant’s supervisor calls her work “exemplary” and had no reason to discipline or otherwise harass appellant.  The supervisor appointed appellant as the alternate manager of the cluster in the event she was unavailable.  This is not behavior designed to chastise or punish, but rather to reward and recognize appellant’s decades of excellence and hard work.  Although it may seem like punishment to appellant because it takes her away from her family for a longer period of time each day, it does not meet the legal definition of discipline.

Additionally, appellant’s argument her transfer is harassment because she is not bilingual is equally unpersuasive.  The courts have stated that harassment consists of conduct outside the scope of necessary job performance, conduct  presumably engaged in for personal gratification, because of meanness or bigotry or for other personal motives.  Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisor’s job.  (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55.)
 
There is no evidence respondent or appellant’s supervisor acted out of some personal gratification in assigning her to an office further away from her home.  On the contrary, her supervisor holds appellant in high regard and is extremely appreciative of her contributions as part of the management team.  Moreover, any motive behind appellant’s transfer was predicated on maintaining the integrity of respondent’s operations as required in its Administrative Manual.  Lastly, there was no evidence the respondent failed to follow its Administrative Manual directives regarding transfers.   

V - CONCLUSIONS OF LAW

Appellant failed to prove by a preponderance of the evidence she was unlawfully transferred under Government Code section 19994.1(a) or under Government Code section 19994.3.
 
* * * * *
 
THEREFORE, IT IS DETERMINED,  the involuntary transfer appeal, effective August 1, 2012, is hereby denied.
 
Footnote
 
1.  On July 1, 2012, the Department of Human Resources succeeded the former Department of Personnel Administration in all functions and duties.
 
  Updated: 7/29/2014
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