DPA Case Number 03-A-0063 - Appeal from Layoff

Final Non-Precedential Decision Adopted: October 8, 2003

By: Gloria Moore Andrews, Chief Deputy Director

DECISION

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on August 28, 2003, at Sacramento, California.

Appellant was present and represented herself.

Wendi L. Ross, Labor Relations Counsel, DPA, represented the California Technology, Trade, and Commerce Agency (CTTCA), respondent.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

I - JURISDICTION

Appellant received a "Notice of Layoff or Demotion in Lieu of Layoff" dated May 21, 2003 informing her that effective June 23, 2003, she had the option of either being laid off or demoted to a Staff Services Analyst (SSA). The appellant filed her appeal of this action on June 23, 2003.1 The appeal complies with the procedural requirements of Government Code section 19997.2

II - CAUSE FOF APPEAL

Appellant alleged the layoff was procedurally improper and conducted in bad faith because it was not conducted strictly by seniority; it did not include CTTCA employees in the California Infrastructure and Economic Development Bank (Bank); and, she was not allowed to demote and "bump" employees in the Bank.

At hearing appellant alleged respondent acted properly. She maintained DPA was the agency responsible for the unlawful conduct. Appellant was informed that DPA was not named as a party to the action in her appeal. Pursuant to DPA Rule 599.903, appellant was informed her appointing authority was considered the only respondent at the time of hearing. Appellant chose to continue the hearing with her appointing authority named as the sole respondent.

III - BACKGROUND INFORMATION

CTTCA's budget had been reduced approximately 75% since 2001. It reorganized several of its programs. As part of this reorganization, some employees were reclassified. Loan Officers working in the Bank were reclassified as specialists.

In January, the Governor's Budget Proposal eliminated funding for the Tourism Division as well as for other CTTCA Programs. Although the Assessment Program in the Tourism Division ultimately received funding, appellant's position was not in this program and was therefore identified for elimination.

Respondent began gathering information from its employees and began holding a series of meetings to discuss the layoffs in mid-January. Respondent sent its Layoff Plan and Request for Preliminary Seniority Scores to DPA. It requested approval to lay off employees in the Tourism Division and in other divisions whose funding had been eliminated or cut. Employees in the Bank were not included in the proposed layoff. Respondent requested seniority calculations for all of its employees and asked that all classifications be placed on the State Restriction of Appointment (SROA) list because of the potential impact the layoffs could have on all parts of the agency.

Respondent also sent DPA demotion charts for the classes to be included in the layoff. The demotion chart for appellant's SSM class was included. On March 3, DPA revised respondent's February 25 SSM demotion chart. The revised demotion chart showed the primary demotion path for an SSM II was to SSM I, Associate Budget Analyst, Associate Governmental Program Analyst, Associate Personnel Analyst, or to SSA. This March demotion chart, along with relevant other charts for represented employees, was sent to the California State Employees' Association (CSEA) as part of DPA's notice to the union of impending layoffs.

After discussions with respondent, DPA modified the March SSM demotion chart a second time on April 14. This revision was intended to clarify the March chart by indicating there was no demotion path between a Managerial and Supervisory Staff Services Manager II. It also added a secondary demotion path for SSM's to the Loan Officer series. This was reflected with a broken line. All other information from the March chart remained unchanged.

CSEA requested to meet and confer over the potential impact of the layoffs. At an April meeting, CSEA refused to accept the April revisions to the demotion charts. CSEA accused the State of regressive bargaining. In light of CSEA's objection, the State agreed to adopt the March demotion charts and patterns. Therefore, the April demotion charts including the SSM chart providing a secondary demotion path to Loan Officer was withdrawn.

Prior to May 21, appellant discussed potential positions into which she could demote with respondent's representative. The representative informed appellant there was a Staff Manager I position that would be in her demotion pattern. At some point, appellant testified she was told she would be able to demote to a Senior Loan Officer position, and then, later she was told she could demote to a Loan Officer. Appellant did not receive written notice of her demotion pattern or available positions until she received her May 21, notice of layoff or demotion in lieu of layoff.

When appellant learned her seniority score of 145 made her eligible for placement only in an SSA position, she elected to accept layoff in lieu of demotion. She subsequently filed this appeal on June 23.

IV - ISSUES

Appellant contended layoff and demotion in lieu of layoff procedures were not followed because the layoff and demotion process was not conducted strictly on the basis of seniority. Appellant argued that if seniority had been the decisive factor used to identify employees to be demoted or laid off, employees in the Bank would have been included and she would have been able to displace a Loan Officer in the Bank who had less seniority.

"Whenever it is necessary because of lack of work or funds, or whenever it is advisable in the interests of economy, to reduce the staff of any state agency, the appointing power may lay off employees pursuant to this article and department [DPA] rule." (Section 19997 (a).) "With the approval of the department [DPA], only the employees of a designated geographical, organizational, or functional subdivision of a state agency need be considered for layoff...." (Section 19997.2 (a).)

In this case, funding was eliminated for the Tourism Division with the exception of the Assessment Program. Appellant's position in the Tourism Division was eliminated because of lack of funding. DPA approved a layoff of employees in the Tourism Division. There was no evidence to suggest that employees in the Bank should have been included in the initial layoff based on lack of funds or work. Appellant presented no evidence that the scope of layoff was inappropriate or unlawful. Therefore, appellant's argument is rejected.

"Layoff shall be made in accordance with the relative seniority of the employees in the class of layoff." (Section 19997.3 (a).) Respondent did this. It had seniority scores computed for all of its employees to determine demotion eligibility for those whose positions were being eliminated. Respondent applied appellant's seniority score in her SSM class and determined this score enabled her to demote in lieu of layoff and hold the position of SSA.

Appellant suggests Section 19997.3 should be ignored. She presented no evidence to support her contention. Respondent must follow the law. Appellant's argument that the layoff was procedurally flawed because it was not conducted strictly by seniority without regard to class, function, organization or geography is without merit.

"In lieu of being laid off an employee may elect demotion to: (A) any class with substantially the same or a lower maximum salary in which he or she had served under permanent or probationary status, or (B) a class in the same line of work as the class of layoff, but of lesser responsibility, if such a class is designated by the department [DPA]. Whenever a demotion requires a layoff in the elected class, the seniority score for the demoted employee shall be recomputed in that class. The appointing power shall inform the employee in the notice of layoff of the classes to which he or she has the right to demote." (Section 19997.8 (a) (1).)

Appellant argued her demotion pattern should have included demotion to the Loan Officer class. She argued she had the general skills and experience to perform the duties of that position.

Appellant presented no evidence that the Loan Officer class was improperly deleted from her demotion pattern. There was no evidence that this class was in the same series as the SSM class, or that appellant had previous probationary or permanent appointment to this class. The language of Section 19997.8 (B) gives DPA the authority and discretion to designate additional classes which may be "in the same line of work as the class of layoff." In this case, DPA exercised its discretion and decided not to designate the Loan Officer series as a secondary demotion path when it withdrew the April demotion charts during bargaining with CSEA. There is no statute or regulation requiring the State to identify a secondary demotion pattern. In addition, according to testimony at hearing, DPA's decision not to adopt a secondary demotion pattern for the SSM class is consistent with its past practice. Respondent notified appellant of the classes to which she had right to demote.

Appellant's contention that the layoff was improper because she was not allowed to displace employees in the Loan Officer class is without merit.

In interpreting the good faith criteria necessary in a layoff, the courts have held that "the [layoff] action will be upheld if taken in good faith, but invalidated if it is a subterfuge for the piecemeal dissolution of the civil service system [citation] or a sham method of ousting an unwanted employee. [Citations.] Reorganization of governmental offices promulgated in good faith and for reasons of efficiency or economy does not 'nullify the basic principle' of civil service even though it results in abolition of one or several civil service positions." (Placer County Employees Association v. Board of Supervisors (1965) 233 Cal.App.2d 555, 559.)

Appellant's arguments that employees in the Bank were being improperly shielded from layoff by being reclassified from generalists to specialists and that these employees were not otherwise properly included in the layoff is without support. There was simply no evidence that gave any credence to this allegation of bad faith.

 

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PURSUANT TO THE FOREGOING FINDINGS OF FACT THE ALJ MAKES THE FOLLOWING DETERMINATION OF ISSUES:

Government Code section 19997.14 allows employees to appeal a layoff on the grounds the required procedure has not been complied with, the layoff has not been made in good faith, or that it was otherwise improper.

Appellant bears the burden of proving by a preponderance of the evidence that the layoff was unlawful.

In this case appellant has failed to meet that burden. There is no statute or regulation requiring or allowing respondent or DPA to conduct a layoff or demotion in lieu of layoff strictly according to seniority without regard to classification. Government Code section 19997.2 allows a department to conduct a layoff within a geographic, functional, or organizational subdivision. There is no statutory or regulatory requirement that DPA identify or allow demotion in lieu of layoff to classes in a second demotion pattern, i.e. class in the same line of work as the class of layoff.

Appellant failed to prove the layoff process was not followed, the layoff was not made in good faith, or that it was otherwise improper.

 

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WHEREFORE IT IS DETERMINED

that the Appeal from Layoff effective June 23, 2003, is denied.

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FOOTNOTES

1. All references are to 2003, unless otherwise indicated.

2. All references are to the Government Code unless otherwise indicated.