DPA Case Number 11-S-0117 - Appeal of Involuntary Transfer and Request for Reinstatement after Automatic Resignation (AWOL)
Final Decision Adopted February 7, 2012
By: Ronald Yank, Director
PROPOSED DECISION
A telephonic pre-hearing conference to determine jurisdiction was held at 10:00 a.m. on September 27, 2011 in Sacramento, California. The Administrative Law Judge (ALJ) Karla Broussard-Boyd, found jurisdiction under Government Code sections 19994.1, 19994.3 and 19996.2. A full evidentiary hearing was held on November 17, 2011 in Riverside, California before the ALJ.
Appellant was present at the hearing and represented by Matthew Wallin, Attorney at Law, Young Miller, LLP. Ron Cassidy, Chief, Office of Discipline Services (ODS) represented the Department of Transportation (Caltrans), respondent. The parties were to file closing briefs no later than December 9, 2011. Respondent, Caltrans, did not file a timely brief.
I - JURISDICTION
The Transfer
On June 6, 2011, the Department of Transportation (DOT), respondent, notified appellant, by mail, she was to report to work at a new location in the District Office, Los Angeles, California, on June 6, 2011. Appellant, through counsel, filed an involuntary transfer appeal on August 17, 2011. Appellant’s good cause claim for the late filed appeal was granted under California Code of Regulations, title 2, section 599.904 (fn. 1).
California Government Code sections 19994.1 and 19994.3 authorize DPA to return the employee to her former position if the involuntary transfer failed to follow statutory requirements; or was the result of harassment; or for disciplinary purposes.
The appeal complies with the procedural requirements of Government Code section 19994.4(a) and California Code of Regulations, title 2, section 599.904. DPA has jurisdiction over the involuntary transfer appeal.
The AWOL
On June 10, 2011, the Department of Transportation (DOT), respondent, notified appellant, by mail, she was being automatically resigned for being absent without leave (AWOL) from June 6, 2011 through June 10, 2011. Appellant filed a request for reinstatement appeal with DPA on August 17, 2011. Appellant’s good cause claim for the late filed appeal was granted under California Code of Regulations, title 2, section 599.904.
California Government Code section 19996.2 authorizes DPA to reinstate an employee after automatic resignation if she makes a satisfactory explanation as to the cause of her absence and her failure to obtain leave and DPA finds she is ready, able, and willing to resume the discharge of the duties of her position. The appeal complies with the procedural requirements of Government Code section 19996.2 and California Code of Regulations, title 2, section 599.904. DPA has jurisdiction over the AWOL appeal.
II - PROCEDURAL BACKGROUND
On November 19, 2010, appellant was served a Notice of Adverse Action (NOAA) dismissing her from state service. On appeal, her NOAA was settled and the original dismissal reduced to a Letter of Reprimand. The May 26, 2011 decision approving the settlement provided respondent would pay appellant all back pay and benefits associated with the dismissal and restore her to her former position.
The settlement agreement was signed by the parties on May 13, 2011 and approved by the State Personnel Board (SPB) on May 26, 2011. The settlement agreement unequivocally stated the parties were to voluntarily adhere to the terms of the agreement prior to SPB approval. On June 3, 2011, the Approved Stipulation for Settlement was mailed to all parties by SPB.
On June 16, 2011, appellant requested relief under Government Code section 18710 (fn. 2) on the belief respondent had breached the May 26, 2011 settlement agreement by not allowing appellant to return to work on June 1, 2011. On August 5, 2011, the Chief Counsel, Delegate of the State Personnel Board, issued his decision which ratified the settlement agreement and required Caltrans to return appellant to her prior status as a Caltrans employee and deferred jurisdiction to DPA on the issues of AWOL and involuntary transfer.
III - ISSUES
The Transfer
Appellant argues her involuntary transfer was unlawful and for the purpose of discipline. Respondent contends it was well within its rights to transfer an excluded employee.
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?
The AWOL
Appellant argues she was ready, able, and willing to work on June 1, 2011 and respondent refused her access to the workplace in derogation of the settlement agreement.
Respondent argues appellant failed to report to work when ordered to do so and was therefore absent without leave.
The issues to be determined are:
1. Did appellant have a satisfactory explanation for her absence from June 6, 2011 through June 10, 2011?
2. Did appellant have a satisfactory explanation for not obtaining leave from June 6, 2011 through June 10, 2011?
3. Is appellant ready, able, and willing to resume the discharge of duties as a Maintenance Area Superintendent?
IV - FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence:
Appellant began work with respondent on March 16, 1990. Appellant, an excluded supervisory employee, was responsible for the Los Angeles County Special Crews in Granada Hills. Her former position, prior to the Notice of Adverse Action (NOAA), was as a Maintenance Area Superintendent (MAS) in Granada Hills. Respondent settled the NOAA against appellant on May 13, 2011. The settlement agreement amended the original penalty of Dismissal to a Letter of Reprimand and restored appellant to her former position.
At the settlement hearing, appellant was told by the ALJ her return-to-work date would be June 1, 2011. On Wednesday, June 1, 2011, appellant reported to her former position as a MAS in Granada Hills. Another individual was hired into appellant’s former position by the Deputy District Director, Maintenance District 7. Upon seeing appellant, the individual contacted his supervisor, the Maintenance Manager II (MM II). He told him of appellant’s appearance at her former worksite. The MM II told the individual to have appellant call him.
The MM II, unaware of the settlement agreement, was surprised by appellant’s appearance at work on June 1, 2011. He contacted the Chief of ODS who handled appellant’s NOAA and subsequent settlement agreement. The Chief told the MM II to send appellant home because he had not yet had an opportunity to interview her before she returned to work (fn. 3). He further told him to have appellant talk to her attorney for further instructions regarding her return to work. The MM II told appellant to go home.
Appellant was confused and contacted her attorney. Her attorney immediately contacted the Chief and advised his client was to be returned to work in accordance with the May 26, 2011 settlement agreement. It was not until June 3, 2011 that the Chief responded stating, “we are willing to bring her back on Monday June 6, 2011 – if she can be available for my interview on Friday June 10, 2011.”
On June 6, 2011, the individual again called the MM II because appellant had once again reported to her former Granada Hills worksite. The MM II, who had received an email letter from the Deputy District Director, then emailed the letter to the individual for delivery to appellant. The letter, dated June 3, 2011, was addressed to appellant and titled, Order to Report to Work. The letter read as follows:
“You are ordered to report to work at 8:00 a.m. on Monday June 6, 2011. You are to report to your new supervisor [ . . . ], in the Division of Maintenance at the District Office at 100 Main St., in Los Angeles, California.
Failure to report to work may be considered insubordination, as well (sic) you being Absent Without Leave (AWOL).
Any episode of insubordination or AWOL, could be grounds for adverse action against you, which could result in your termination.
Also note, five (5) consecutive days of AWOL could result in your separation from State Service under the provisions of Government Code section 19996.2.”
The Deputy District Director explained this was not a typical transfer letter, and he is not typically involved in employee transfers. Respondent’s Labor Relations Specialist explained an excluded employee does not have the same transfer rights as a rank-and-file employee. Excluded employees can be told to report to a different worksite as early as the next working day.
The Deputy District Director wanted the June 3, 2011 letter to be strongly worded because he was concerned she “was not going to show up.” He does not explain why he believed appellant “was not going to show up” and was not concerned the letter might be given to appellant after the report time stated in the letter. Except for his June 3, 2011 letter delivered to appellant on June 6, 2011, the Deputy District Director did not contact appellant at any time.
The Deputy District Director, who hired the individual to fill appellant’s Granada Hills position, knew appellant was to be returned to her former position (fn. 4) in May 2011 and understands the meaning of “former position” as “the same class in the same general area.” He readily admits there was a MAS vacancy at the Valencia yard, a few miles from appellant’s former position in Granada Hills when appellant reported to work on June 1, 2011.
On June 3, 2011, the Deputy District Director told the MM II to offer the Valencia MAS position to someone other than appellant. On June 6, 2011, he ordered appellant to report to the District Office at 100 Main Street, Los Angeles, California, which added approximately 2 hours to appellant’s daily commute.
On June 6, 2011, after hearing of his client’s second unsuccessful attempt to return to work, appellant’s attorney immediately advised respondent they were in violation of the May 26, 2011 settlement agreement. The letter also stated unequivocally that, “pending the SPB’s decision, appellant will not be reporting to the L.A. office.” The letter further advised that any actions taken against appellant would be seen as retaliation. In response to the appellant’s attorney’s letter, the Deputy District Director writes, “[g]ood luck with that.” The ODS Chief did not testify.
V - CREDIBILITY DETERMINATION
Except as otherwise provided by statute, the court or jury may consider, in determining the credibility of a witness, any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including, but not limited to . . . (a) [Her] demeanor while testifying and the manner in which [she]
testifies. . . (c) The extent of [her] capacity to perceive, to recollect, or to communicate any matter about which [she] testifies . . . (e) [Her] character for honesty or veracity or their opposites . . . (f) The existence of or nonexistence of a bias, interest, or other motive . . . (h) A statement made by [her] that is inconsistent with any part of [her] testimony at the hearing. (Evid. Code, § 780.) The ALJ makes the following credibility determination.
The testimony of the Deputy District Director, Maintenance District, is not credible. He appeared to fabricate his testimony and had an uncanny inability to recall any fact which might bring discredit to respondent. While he claims not to recall appellant’s report date, he knows with certainty she failed to “report where I sent her,” which makes his self-serving statement, “it was never my intention to not reinstate appellant,” suspect.
Most incredible, when asked to read the final condition of the settlement agreement between appellant and respondent, which read:
“[u]ntil such time as the SPB shall approve or reject this agreement, the parties hereby agree to voluntarily adhere to the terms of the agreement.”
The Deputy District Director testified, “I don’t understand what that means.” This denial is indicative of the Deputy District Director’s motive of self-interest when, as a Deputy District Director, he claims not to understand a simple statement outlining the obligation of parties to a settlement agreement.
The Deputy District Director’s character for honesty was non-existent as he testified he looked at vacancies for appellant. There was uncontroverted testimony a MAS vacancy existed in Valencia, just a few miles from appellant’s former position; but he claims the only vacant position was in Los Angeles. He claims to have looked at all the vacancies when he decided where to place her, yet three days after she reported to work, respondent offered the Valencia MAS position to someone else. Most troubling is the decision to fill appellant’s former position in Granada Hills while negotiating a settlement returning her to her former position.
The Deputy District Director became flustered when questioned on the issue of his placement of appellant to Los Angeles, including interrupting the questioner in order to blurt out his response. His anxiety grew as he was questioned on the issue of whether he transferred appellant for purposes of discipline. The Deputy District Director who knew respondent had unsuccessfully attempted to dismiss appellant and had to settle for a mere Letter of Reprimand, appeared to understand the transfer was punitive.
This was further seen during his testimony as he became even more anxious when asked why he did not contact appellant at any time during the alleged AWOL period, after testifying it was a general practice to do so. First, he said he had a bad telephone number for appellant, then quickly changed his testimony and acknowledged he knew she was represented by an attorney, but could not explain why he handled this transfer differently. At times, he looked to the ODS Chief as if for assistance. The testimony of the Deputy District Director is not credible.
VI - ANALYSIS
The Transfer
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 (fn. 5). (Gov. Code, § 19994.1(a).) California Code of Regulations, title 2, section 599.714.1(b)(D)(2) 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 a new work site that was approximately 25 miles from her former worksite. Appellant, an excluded employee, did not have the same transfer protection of a rank-and-file employee. Specifically, California Code of Regulations, title 2, section 599.714.1(b)(D)(2), governing excluded employee transfers, 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).
Appellant was unlawfully transferred under Government Code section 19994.3.
Government Code section 19994.3 prohibits transfers “made for the purpose of harassing or disciplining the employee.” DPA has the authority to revoke a transfer and restore an employee to her former position if it finds the transfer was made for the purpose of harassing or disciplining the employee. Respondent, for reasons unknown, reduced appellant’s NOAA penalty from a severe Dismissal to a mere Letter of Reprimand. However, respondent was determined to discipline appellant and when it failed to do so under the SPB disciplinary process, it punitively transferred her.
In Johnston v. Department of Personnel Administration (1987) 191 Cal.App.3d 1218, the court held, “[t]he clear concern of section 19994.3 is discipline or harassment achieved through a transfer. It is equally apparent the Legislature sought to prevent such abuses.” Respondent is blameworthy for transferring appellant as a form of punishment. Discipline is defined as correction, chastisement, punishment, penalty. (See Black’s Law Dict. (6th ed. 1990) p. 464, col. 1) and a transfer is disciplinary in nature only if imposed for purposes of punishment. (White v. County of Sacramento (1982) 31 Cal.3d 676.)
Respondent, after its failed attempt to dismiss appellant in November 2010, negotiated a settlement agreement it had no intention of honoring. It is clear from respondent’s conduct of filling appellant’s former position and refusing her access to her former position on June 1, 2011, it never intended to return appellant to her former position. The testimony of the Deputy District Director is quite instructive in this regard. He indicated he was responsible for filling positions in appellant’s district and knew he had to place appellant as early as mid-May 2011 after speaking with the ODS Chief.
It is therefore not surprising that concurrent with respondent settling its NOAA with appellant, it filled her former position in Granada Hills. Filling appellant’s position, which had remained vacant for six months, just before the settlement agreement was finalized, is a clear indication respondent wanted appellant to suffer a penalty. Respondent’s conduct was done for the sole purpose of punishing appellant by making her suffer an additional 2-hour commute and refusing her access to her former position pursuant to the settlement agreement.
Furthermore, the Deputy District Director’s testimony regarding the vacant Valencia MAS position, “was one that was in the process of being filled” and therefore to “his thinking it was filled,” is not persuasive and is dishonest. Black’s Law Dictionary defines a vacancy as “a place or position which is empty, unfilled or unoccupied.” The Valencia MAS position was vacant when appellant reported to work on June 1, 2011, but respondent refused to place her in this position.
For no other reason but to punish appellant, the Deputy District Director filled appellant’s former position, under the direction of the ODS Chief, with knowledge respondent was settling the NOAA to return her to her former position. Had respondent been acting in good faith, they could have easily placed appellant in her original Granada Hills position, or at the very least, transferred her to the Valencia MAS position, which was just a few miles north of her original worksite. They did neither. Instead, respondent transferred her to the downtown Los Angeles District Office.
The AWOL
Government Code section 19996.2(a) states: “[a]bsence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked.” Section 19996.2(a) also provides: “[r]einstatement may be granted only if the employee makes a satisfactory explanation to the department [DPA] as to the cause of [her] absence and [her] failure to obtain leave therefor, and the department finds that [she] is ready, able, and willing to resume the discharge of the duties of [her] position or, if not, that [she] has obtained the consent of [her] appointing power to a leave of absence to commence upon reinstatement.” Appellant has the burden of proof in these matters and must prove by a preponderance of the evidence each material issue. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.)
Appellant had a satisfactory explanation for her absence because she was unlawfully transferred by respondent.
After failing to sustain a dismissal action against appellant, respondent was determined to punish appellant. Respondent’s ODS Chief, who negotiated the settlement, refused to allow appellant to return to work until he could interview her for his investigation, in derogation of the settlement agreement. Although the ODS Chief did not testify, it was clear he made sure appellant would never be reinstated to her former position by instructing staff to fill her position at the same time negotiating a settlement agreement with appellant.
Respondent had an ulterior motive to punish appellant and did not act in good faith. It had the opportunity to discipline appellant, yet failed in the attempt when the case settled for the lowest penalty available instead of the highest penalty of dismissal. No one can take advantage of his own wrong. (Civ. Code, § 3517.) By negotiating the settlement agreement in bad faith, conditioning her return on a non-existent condition of the settlement agreement and refusing her access to her former position, respondent was not acting in good faith.
The phrase “arbitrary and capricious” has no precise meaning and is not defined in statute. However, conduct which lacks any reasonable basis or is without any rational support whatsoever may be considered to be arbitrary and capricious. (Madonna v. County of San Luis Obispo (1974) 39 Cal.App.3d 57.) Respondent’s conduct goes beyond arbitrary and capricious and is best described as bad faith.
Bad faith is “the opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.” (See Black’s Law Dict. (6th ed.) p. 139, col. 1.) Respondent, while negotiating a settlement with appellant, was motivated to punish appellant. During settlement negotiations, respondent was purposefully filling appellant’s former position at Granada Hills, intentionally breaching one of the contract terms.
The unclean hands doctrine applies to legal as well as equitable claims and to contract as well as tort remedies. (Jacobs v. Universal Development Corp. (1997) 53 Cal.App.4th 692.) Respondent cannot pretend to negotiate a settlement in good faith while concurrently making sure appellant would never have the benefit of the bargain of her former position. Respondent’s antics are unacceptable and unlawful. If respondent wanted to punish appellant for alleged bad acts, it should have proceeded to hearing under the jurisdiction of SPB with its Dismissal NOAA and not attempted to circumvent the law.
Respondent argues appellant should have reported to work at the Los Angeles office when transferred. While it is true Government Code section 19994.3 states, “the appointment power may require the employee to transfer pending approval or disapproval of the transfer by [DPA],” respondent must not be allowed to take advantage from its wrong of unlawfully transferring appellant. Appellant attempted on two separate occasions to report to work and was denied access.
Appellant had a satisfactory explanation for not obtaining leave because she was unlawfully transferred by respondent.
Appellant was told by the ALJ to return to work on June 1, 2011 and was confused by the actions of respondent when they sent her home. Respondent was not acting in good faith when it conditioned appellant’s return to work on her participation in an investigatory interview; sent her home without authority and then AWOL separated her after an unlawful transfer.
Appellant is ready and was ready, able, and willing to return to work.
Appellant’s readiness, ability and willingness to return to work is not disputed.
VII - CONCLUSIONS OF LAW
Appellant failed to prove she was unlawfully transferred under Government Code section 19994.1(a). Appellant proved by a preponderance of the evidence her involuntary transfer of June 3, 2011 was for harassment and disciplinary purposes under Government Code section 19994.3. Appellant proved by a preponderance of the evidence she had a valid reason for her absence, a valid reason for not obtaining leave and she is ready, able, and willing to resume the discharge of her duties as the Granada Hills Maintenance Area Supervisor.
* * * * *
THEREFORE, IT IS DETERMINED, the appeal for involuntary transfer under Government Code section 19994.1 is denied; however, appellant’s appeal under Government Code section 19994.3 is granted. Appellant’s request for reinstatement after automatic resignation, from the position of Caltrans Maintenance Area Supervisor, with the Department of Transportation, effective June 1, 2011, is granted. Appellant is to be reinstated to her former position within 2 weeks of this Order. Appellant shall receive back pay from June 1, 2011 until she is properly reinstated to her Granada Hills MAS position.
Footnotes
1. Under California Code of Regulations, title 2, section 599.904, DPA may allow an appeal to be filed within 30 days after the period in which it should have been filed.
2. Government Code section 18710 allows the State Personnel Board to issue further findings on whether a party has not complied with the original order or decision.
3. The Chief was attempting to condition appellant’s return to work on an investigational interview which was not a condition of the settlement agreement and lead to appellant’s filing its motion with SPB on June 16, 2011.
4. “Former position” means either of the following: (a) A Position in the classification to which an employee was last appointed as a [permanent employee] under the same appointing power where that position was held, and within a designated geographical, organizational, or functional subdivision of that state agency as determined appropriate by the [State Personnel Board.]
5. Government Code section 19050.5 states, “notwithstanding § 3517.6, an appointing power may transfer any employee under his or her jurisdiction to another position in a different class designated as appropriate by the board.”
