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MISSISSIPPI FORESTRY COMMISSION v. ROBERT A. PIAZZA

OCTOBER 07, 1987

MISSISSIPPI FORESTRY COMMISSION
v.
ROBERT A. PIAZZA



BEFORE HAWKINS, P.J., ANDERSON AND GRIFFIN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

The Mississippi Forestry commission has appealed from a permanent injunction of the chancery court of Grenada County enjoining the Commission from transferring its employee Robert A. Piazza. Finding the injunction to be manifestly in error, we reverse and render a judgment here for the Commission.

FACTS

 Robert A. Piazza was employed in 1979 by the Mississippi Forestry Commission. In 1985 he was an Information and Education and Safety Training Forester in the Northwest District, and living in Grenada.

 On May 28 that year Robert S. Moss, the State Forester, mailed Piazza a memorandum notice that effective June 15 he

 was receiving a "173.2" transfer to the Southeast District with headquarters in Wiggins. The memorandum notified Piazza he was to receive a monthly salary increase from $1,636.67 to $1,694.06. Moss sent another notice to Piazza on June 17 making the transfer effective July 15. The memoranda commended Piazza's performance.

 By memo dated May 31, Piazza responded to the first notice objecting to the transfer. His objection stated:

 1. I am satisfied in my present position.

 2. There are great forestry needs and opportunities in the Northwest District. I feel my job here is important and vital to the interest of the landowners or [sic] this area and the Mississippi Forestry Commission.

 3. It would be a financial hardship on me to move. I own my own home.

 4. I have a Military obligation in the Army Reserve. I am the Commanding Officer of the 173rd Quarter Master Company in Greenwood. I am a 2nd Lt. soon to be promoted to 1st Lt. in a Captain's slot.

 5. I have been in Grenada for four years and I have many community obligations.

 6. I have questions as to the motive behind my transfer.

 On June 6 Moss sent a memo to Piazza informing him first that all of his objections had been considered prior to the decision to transfer him, that all Commission employees were subject to transfer where a need existed, and his services were needed in the Southeast District.

 The Commission delayed the effective date of Piazza's transfer pursuant to a request by his attorney, in order to accommodate Piazza's military obligations.

 On July 11 Piazza filed a complaint in the chancery court of Grenada County seeking injunctive relief prohibiting his transfer. He alleged that he had no administrative relief because his proposed transfer was not recognized as a "grievable" matter in administrative policies. He further alleged the transfer would cause irreparable harm, and that his transfer was against established policies and procedures

 of the Commission. In addition, he claimed the State Forester, Moss, had wrongfully accused him of interfering with the Commission's dealing with Piazza's supervisor. At the hearing it developed that the supervisor alluded to was Hollis Ishee.

 A temporary restraining order was issued by the chancellor on July 12. On motion of the Commission, the chancellor dissolved the temporary restraining order on July 29 because Piazza had not exhausted his administrative remedies.

 On July 31 Piazza by and through his attorney filed a notice of appeal on the form provided by the Mississippi Employee Appeals Board, the body of which reads as follows:

 1. State in the space below what action of the appointing authority forms the basis for this appeal: Lateral transfer from Northwest District Office at Elliott, Mississippi, to Southeast District Office in Wiggins, Mississippi, against Appellant's wishes.

 2. Effective date of the appointing authority's final decision: 7/15/87

 3. If discrimination is alleged as the basis for this appeal, set out in the space below the specific facts which support the conclusion of discrimination: (left blank)

 4. State the relief you are requesting: Stay in Present Location & Job Assignment - Appellant has been in Grenada Chancery Court and it has denied a hearing in Cause #85-7-123.

 5. Attach a copy of the final decision of the appointing authority. Letter of transfer & copy of page 75, 5.30.4(b) and Page 76, 5.40.2(c) Miss. State Personnell [sic] Board.

 William H. Smith, III, chief hearing officer for the State Personnel Board, responded to this notice by letter dated August 21, 1985, as follows:

 After reviewing the petition which you have filed in this cause, it appears that the Employee Appeals Board does not have jurisdiction to hear the appeal. However, if you wish me to have a

 hearing and afford you the opportunity to offer proof, please advise within 5 days otherwise I will enter an Order of Dismissal for the reason set forth above. "

 Thereafter, on August 29, in the same chancery court cause, Piazza filed another complaint for injunctive relief. He again alleged that his transfer was a non-grievable matter, and that he had exhausted his administrative remedies. Additionally, he alleged the transfer was contrary to the established policies and procedures of the Commission, and that the transfer would cause him irreparable harm.

 A hearing on this second complaint was held and conducted by the chancellor on August 30 and September 20, at which time the temporary restraining order was made permanent.

 In addition to being employed by the Forestry Commission, Piazza also served in the United States Army Reserve as commanding officer of the 173rd Quartermaster Company in Greenwood. He held the rank of second lieutenant, and was about to be promoted to first lieutenant. Also, because there were only five units such as the Greenwood quartermaster unit in the United States, he alleged that he was likely to receive a promotion to Captain. The unit met one week end a month, and each summer there was a two-week tour of duty. Both Piazza and the first sergeant of the unit testified, however, that as commanding officer it was necessary to sign documents on short notice, and reports which had to frequently be made in a day's notice. Thus, it would be very difficult for Piazza living in Wiggins to properly fulfill all his duties as a commanding officer of the unit. The difficulty of continuing as commanding officer of the Greenwood unit posed by a transfer to Wiggins was the main reason Piazza objected to the transfer.

 Although single, Piazza owned a home in Grenada and another objection he had to the transfer was the necessity to purchase a new home in Wiggins, and the difficulty of getting as good long-term financing as he then had in Grenada. No proof or corroboration was offered by Piazza, however, as to the availability of housing, or financing in Wiggins as opposed to Grenada.

 At the trial it developed that the Forestry Commission and Hollis Ishee had been involved in a controversy and Ishee had filed an action against the Commission in the Northern Mississippi United States district court. Although Piazza had not testified for Ishee in the Federal court action, he had contacted State legislators on Ishee's behalf, and it was

 his opinion that the transfer was an act of vengeance by Moss because Piazza had taken an active role on Ishee's behalf.

 Moss denied this, although he did admit he had been upset over the affairs in the Northwest District Office and had expressed the opinion that the mess needed to be cleaned up. He testified the transfer proposed for Piazza was because a vacancy had occurred in the Southeast District through the resignation of a forester, that he considered other foresters from around the state to fill the position, but finally had chosen Piazza. Finally, one of the factors affecting Moss was that the other possible transferees were married and had children in school. His main stated reason was that Piazza was well qualified, and was the forester who was needed to fill the vacancy in Wiggins.

 Piazza contended a capable man could be employed for the vacancy without necessitating any transfer, and that he was being singled out because of internal Commission politics.

 It also developed at the hearing that the Commission members supported Moss' decision. Copies of letters several commissioners had written to legislators in response to their letters on Piazza's behalf were introduced into evidence.

 Several witnesses offered on Piazza's behalf testified that the Commission had a long-standing policy of not transferring personnel without their consent. These witnesses were present, as well as retired employees of the Forestry Commission. The Commission offered evidence to the contrary, that indeed personnel had been transferred involuntarily. There was sufficient evidence for the chancellor to conclude, as he in fact did, that the usual practice and procedure of the Commission was not to require a Commission employee to transfer if he in fact did not want to move. The chancellor further found, however, that there were no written policies or guidelines to this effect.

 In his final judgment the chancellor concluded that a State agency must have some degree of latitude in making personnel assignments, but that the discretion was not unfettered. He further found, as noted, that while there was no written policy or guideline, there was considerable testimony that the normal practice employed in prior transfers had been violated in this case.

 The chancellor further found that Piazza had been discriminated in his transfer because he was single as opposed to being married, and that all normal procedures involved in considering personnel assignment had been

 abandoned, ignored or violated in his case.

 He further found that Piazza would be irreparably damaged because he would have to surrender his low interest home loan, sell his home, and surrender his position as commander of the Army Reserve unit in Greenwood, and would have to bear all of his moving expenses to Wiggins.

 Finally, the chancellor permanently enjoined the Commission from transferring Piazza.

 The Commission has appealed.

 LAW

 The notice to Piazza that he was being transferred stated that it was" 173.2 "transfer, referring to 173.2 of the Commission's policies and procedures regulations, which reads as follows:

 The Commission may transfer employees to other working areas if:

 (1) It is in its opinion to the best interest of ...


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