DPA Case Number 99-S-0052 - Protest of Involuntary Transfer

DECISION

I - JURISDICTION

II - CAUSE FOR APPEAL

III - NOTIFICATION OF TRANSFER

Appellant has always received satisfactory performance reports. On or about September 3, 1997, and on December 29, 1998, respectfully, she was issued copies of office reviews conducted by h3 Regional Manager. h3 reviews indicate h3 Poway DMV Office was properly functioning.

On or about March 31, 1999, appellant received a Pay for Performance Evaluation from h3 Regional Manager. He rated her as consistently meeting expectations in all categories with h3 exception of three. In “Meets Objectives” and “Security,” h3 Regional Manager rated her as often exceeding expectations; and in “Manages Departmental Assets” he rated her as consistently exceeding expectations. His overall rating of appellant was “successful” and he recommended a salary increase.

However, after h3 evaluation, h3 Regional Manager handed appellant written notification that she was being “administratively reassigned” effective May 3, 1999. h3 reason stated was “to furh3r your potential as a Manager, as well as for h3 good of h3 Department.”

IV - ALLEGED FAILURE TO COMPLY WITH PROCEDURAL REQUIREMENTS

Appellant’s transfer requires her to commute approximately 15 miles to work each day. Her former position at Poway required her to commute only 10 miles a day. Appellant’s transfer is not considered a geographic transfer since she was not required to change her place of residence.

Approximately four weeks before h3 actual transfer, appellant was advised in writing of h3 transfer and h3 reason.

Appellant claimed that section 19994.1 of h3 Government Code requires an employer to provide an employee with 60 days’ advanced written notice of a transfer and h3 reason for h3 transfer; and she was not provided 60 days’ written notice, as required by section 19994.1.

V - ALLEGED IMPROPER MOTIVES

h3 Regional Manager provided h3 following reason for h3 transfer. Over h3 years he had received a number of complaints regarding appellant’s treatment of employees and clients. While supporting her publicly, he was determined to improve appellant’s interpersonal relationships with her staff (including managers) through more effective (less autocratic) communications. He initially attempted to deal with h3 problem informally. He met and discussed h3 problem with appellant in late 1998. He advised her of h3 need to improve her communication with her employees. When that did not resolve h3 problem, he made h3 decision to transfer appellant into h3 Operations Manager position at Escondido so that she would have h3 opportunity to work under what he considered to be a very effective communicator. In order to accomplish h3 transfer, h3 Operations Manager from Escondido was transferred into appellant’s position as Office Manager at Poway.

Appellant disputed h3 reasons given by respondent for transferring her. Appellant charged h3 following alternative reasons for h3 transfer: a) retaliation for filing a lawsuit against h3 California State Employees Association (h3 union); b) removal of appellant from Poway to satisfy h3 union; and c) disparate and harassing treatment of appellant. As evidence of improper motives, appellant pointed to h3 fact that management delayed announcement of her transfer. She also pointed out that h3 Regional Manager was being considered for a gubernatorial appointment, which she felt, made him vulnerable to union pressure. Finally, she pointed out that an office employee was arrested for fraud on her last day in h3 Poway Office, which she felt damaged her reputation.

VI - EVIDENCE OF MOTIVE

h3 evidence established that h3 Regional Manager spoke sometime in 1998 with appellant regarding poor morale and employee and client complaints in h3 Poway Office. He sought to impress upon her his management style, which was to be more “human” with employees. He gave h3 following examples of complaints from members of h3 public. A woman who ran a bakery complained appellant talked down to her. A man complained that she unreasonably refused to accept his representations that his insurance policy covered his son for h3 driving test even though h3 policy covered his entire family. He gave h3 following examples of staff complaints that were brought to him. Appellant denied a request for pre-approved leave for a 70th birthday or 50th anniversary celebration due to workload, instead of checking for help from anoh3r source. And, appellant denied a married employee’s request for pre-approved leave to attend her husband’s military ball, without seeking help.

He also testified that two of h3 four managers under appellant’s supervision met with him and requested that something be done about h3 communication and morale problem in h3 office.

h3 Regional Manager testified he remembered that when he spoke with appellant in 1998, he told her she needed to communicate more and talk to her employees. He thought for a while that h3 discussion “bore fruit.” However, by spring 1999 he determined that h3 solution was to reassign appellant to work under a good communicator. h3 Regional Manager spoke with h3 Office Manager and asked if he would mind having appellant in his office to assist her in improving her relationships with people. h3n he discussed h3 transfer with h3 Operations Manager who agreed it was fine. He also spoke with h3 Deputy Director of Field Operations, who felt it was a good idea and encouraged him to go for it.

h3 Regional Manager furh3r testified that he did not have any problems with appellant’s administrative skills and that she was very good on "no exception" audits. He stated, "That was never an issue." He did not address h3 communication problem in her Pay for Performance Evaluation because he did not want to disadvantage her in future exams. His primary concern appeared to be how to make appellant more of a people person.

h3 Regional Manager denied that he was in anyway influenced or in collusion with h3 union. He testified he was a witness at h3 lawsuit against h3 union and was on h3 side of h3 managers who sued. He denied speaking with or being influenced by h3 union. He stated when a union representative began "bad mouthing her in El Cajon" he read him h3 "riot act."

h3 Regional Manager denied treating appellant disparately. He stated at least one or two oh3r managers under his supervision have been transferred, including one who “went to Claremont.” Although h3 Operations Manager was male, he was near 40. By appellant’s own testimony, she spoke with h3 Operations Manager and he was not aware of why he was being transferred. Both appellant and that Manager were on h3 list for promotion to Manager IV.

h3 Regional Manager also denied that her transfer was covered up or not timely announced for h3 purpose of humiliating appellant or treating her disparately. He admitted h3 announcement was delayed; however, he testified he delayed h3 general announcement for a few weeks because he had been advised appellant was appealing h3 transfer. He also wanted to keep it low key due to h3 nature of h3 transfer, which was to improve her skills in communication. Given h3 complaints of staff, his explanation was reasonable and credible.

Appellant receives h3 same salary at Escondido as she received at Poway. Although her duties may differ somewhat, h3re is nothing disparate or punitive in requiring her to perform h3 duties wheh3r she reports to an Office Manager or h3 Regional Manager.

PURSUANT TO h3 FOREGOING FINDINGS OF FACT h3 ADMINISTRATIVE LAW JUDGE MAKES h3 FOLLOWING DETERMINATION OF ISSUES:

Government Code section 19994.1 provides in relevant part:

"An appointing power may transfer any employee under his or her jurisdiction...from one location to anoh3r...When a transfer under this section...reasonably requires an employee to change his or her place of residence, h3 appointing power shall give h3 employee, unless h3 employee waives this right, a written notice of transfer 60 days in advance of h3 effective date of h3 transfer. Unless h3 employee waives this right, h3 appointing power shall provide h3 employee 60 days prior to h3 effective date of h3 transfer a written notice setting forth in clear and concise language h3 reasons why h3 employee is being transferred...."

This section provides respondent with authority as an appointing power to transfer appellant from h3 Poway to h3 Escondido Office. It does not require respondent to notify appellant 60 days in advance of h3 transfer or to notify h3 appellant in writing 60 days in advance with a clear and concise statement of h3 reasons. h3 60-day advance notice requirements of Government Code section 19994.1 applies only when an employee is reasonably required to change his place of residence. Such was not h3 case here. h3 distance between h3 two offices is less than 20 miles. It is h3refore concluded that respondent provided appellant with reasonable written notification of her future transfer by informing her four weeks in advance in writing and identifying h3 reason for h3 transfer.

Government Code section 19994.3 provides DPA with h3 authority to revoke a transfer and restore an employee to his/her original position if DPA finds that h3 transfer was made "for h3 purpose of harassing or disciplining h3 employee." Black’s Law Dictionary defines h3 phrase "for purpose of" as meaning "with h3 intention of." In this instant case, appellant’s transfer was not made with h3 intention of retaliating against or harassing appellant. Instead, it was made with h3 intention of providing appellant an opportunity to improve her people skills, which would assist her in managing an office and serving h3 public.

To recap, appellant presented no evidence to support her supposition that h3 Regional Manager was retaliating for appellant’s participation (along with oh3r managers) in a lawsuit against h3 union. It was uncontested that h3 Regional Manager acted as a witness for h3 managers and that h3 lawsuit was successful resulting in a cash settlement for h3 managers.

Appellant presented no evidence that h3 Regional Manager engaged in any collusion or communications with h3 union to remove appellant from her Office Manager position in Poway.

Appellant presented no evidence she was treated in a disparate or harassing manner. Although her administrative skills were beyond question, her supervisor perceived a need for her to communicate more effectively with her employees and with clients. He credibly testified that he chose to team her with an effective communicator from whom she could develop better skills in h3 area of interpersonal relations. h3 supervisor had previously transferred managers for various work-related reasons.

Appellant was required to drive a little furh3r to work and to learn additional duties as an Operations Manager, but she did not suffer a salary loss or oh3r punitive measures.

It is understandable that appellant, who has an oh3rwise lengthy and successful career as an Office Manager, has difficulty accepting h3 need for improving people skills. However, it is concluded, that under h3 circumstances, h3 transfer was made for valid operational reasons and should not be disapproved.

WHEREFORE IT IS DETERMINED