This matter was heard before Karla Broussard-Boyd, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on May 10, 2012 in Delano, California.
Appellant was present and self-represented.
Corina B. Dragan, Labor Relations Counsel, Department of Personnel Administration, represented the California Department of Corrections and Rehabilitation (CDCR), respondent.
I - JURISDICTION
Appellant received a demotion in lieu of layoff notice from respondent, CDCR, dated, January 26, 2012, with an effective date of March 1, 2012. Appellant filed an appeal of layoff with DPA on February 24, 2012.
Government Code section 19997.14 provides an employee may appeal to DPA within 30 days after receiving a notice of layoff on the grounds the required procedure has not been complied with or the layoff has not been made in good faith or was otherwise improper. The appeal complies with the procedural requirements of Government Code section 19997.14. DPA has jurisdiction over the appeal.
II - ISSUES
Appellant argues her demotion/transfer did not consider her hardship request to remain at her original classification of Senior Staff Psychologist (Correctional Facility) Supervisor.
Respondent contends the layoff followed the statutory scheme, was properly executed and in good faith.
The issues to be determined are:
1. Were the statutes and rules applicable to layoffs followed?
2. Was the layoff made in bad faith?
3. Was the layoff otherwise improper?
III - FINDINGS OF FACT
The evidence established the following facts by a preponderance of the evidence:
Appellant began her career with the State of California on November 2, 1982, as a pre-licensed Psychiatric Technician. In June 1984, she left state service and returned on May 31, 2007 as a Clinical Psychologist (Correctional Facility) at North Kern State Prison (NKSP), Delano, California. On September 7, 2010, she was promoted to the position of Senior Psychologist (Correctional Facility) Supervisor at the Parole Outpatient Clinic in Bakersfield, California.
On December 30, 2011, respondent sent appellant a cover letter together with a Placement Options Worksheet (Worksheet). The first page of the cover letter stated, “[p]lease pay special attention to this cover letter” which was in italicized and bold typeface. The letter outlined essential information appellant would need to consider in selecting options as an impacted employee. An impacted employee is one whose current classification is targeted for layoff.
Appellant completed the Worksheet and returned it to respondent on January 5, 2012. On January 17, 2012, respondent’s Resource Planning and Reduction Section (RPRS) contacted appellant in order to clarify her choices on the Worksheet. The RPRS Analyst advised appellant she could not have duplicate numbers on her Placement Options Worksheet. Appellant corrected the Worksheet and returned it timely to RPRS with the required sequential numbers indicating her choices.
Appellant’s Worksheet also contained multiple notations from appellant, “I want to retain my current position, /s/ [ . . . ],” and “I do not elect to be laid off.” Appellant’s first two choices were to remain in her current impacted classification as a Senior Psychologist (Correctional Facility) Supervisor. She also indicated she would be willing to seek employment statewide on a full-time permanent basis.
On January 26, 2012, respondent sent appellant a layoff letter. The layoff letter indicated appellant’s current position as a Senior Psychologist (Correctional Facility) Supervisor was impacted in the layoff. The layoff letter instructed appellant she was awarded her third option, a full-time position in her primary demotional (sic) pattern as a Psychologist Clinical (Correctional Facility) at NKSP, Delano, California.
On January 31, 2012, appellant called respondent’s RPRS staff to discuss the demotion to Psychologist Clinical (Correctional Facility) at NKSP. On February 15, 2012, appellant and her supervisor called respondent’s RPRS staff to determine the name of the individual who had bumped her from her Senior Psychologist (Correctional Facility) Supervisor position. Appellant also wanted RPRS to verify vacancies and assist her in filing an appeal of the demotion.
Appellant then filed a hardship request pursuant to respondent’s hardship transfer policy and made numerous telephone calls to RPRS. On March 1, 2012, she also filed a hardship request with various individuals in state government asking for their assistance. She believed her particular circumstances at home, coupled with her training and education in Sex Offender Treatment, should carry some weight in determining whether or not she should be demoted from her position as a Senior Psychologist (Correctional Facility) Supervisor.
Appellant’s concerns were sent to an Associate Government Program Analyst (AGPA). The AGPA reviewed all aspects of appellant’s concerns. She answered each issue raised by appellant and provided an in-depth response to respondent’s management staff. RPRS does not discuss the status of an employee’s personnel information with other employees, but found no irregularities with the layoff process of appellant. Appellant reported to her new position on March 1, 2012.
IV - ANALYSIS
Government Code section 19997 (fn. 1) provides: “[w]henever 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 rule.” All evidence indicates respondent administered the layoff plan in accordance with the statutory scheme.
Section 19997.14 authorizes DPA to order reinstatement of the employee, with or without pay, if it appears the correct procedure was not followed, the layoff was not made in good faith or the action was otherwise improper. Appellant has the burden of proof and must prove by a preponderance of the evidence the statutes and rules regarding layoffs were not followed, the layoff was made in bad faith or was otherwise improper. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826.) Appellant’s claim she had to call “numerous times” is insufficient to overcome the evidence respondent properly noticed and administered the layoff plan.
There was no evidence presented to indicate the reorganization of respondent’s psychologists was done in bad faith. The courts have adopted the criterion of good faith to weigh the legality of actions abolishing civil service positions. The 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 or a sham method of ousting an unwanted employee. (Peradotto v. State Personnel Board (1972) 25 Cal.App.3d 30, citing Placer County Employees Assn. v. Board of Supervisors (1965) 233 Cal.App.2d 555.)
There was no showing of bad faith in the administration of appellant’s layoff. Appellant failed to prove respondent acted with an intent to deceive or otherwise lapsed in their duty under the law. Black’s Law Dictionary defines “bad faith” as the opposite of “good faith.” Bad faith generally implies or involves 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. Respondent answered all of appellant’s questions concerning the layoff and, in good faith, kept appellant informed of her layoff status. (See Black’s Law Dict. (6th ed. 1990) p. 139, col. 1.)
1. All further statutory references are to the Government Code unless otherwise indicated.
