State of California (Department of Social Services) (PERB 1413S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ROBERT CLAYTON,
Charging Party,
v.
STATE OF CALIFORNIA (DEPARTMENT OF
SOCIAL SERVICES),
Respondent.
Case No. SA-CE-1157-S
PERB Decision No. 	1 4 1 3 - S
O c t o b e r 	1 9 , 	2000
Appearances: 	California State Employees Association by Douglas Moffett, Labor Relations
Representative, for Robert Clayton; State of California (Department of Personnel
Administration) by Nalda L. Keller, Labor Relations Counsel, for State of California
(Department of Social Services).
Before Dyer, Amador and Baker, Members.
DECISION
DYER, Member: 	This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Robert Clayton (Clayton) of a PERB administrative law judge's
(ALJ) proposed decision (attached) dismissing his unfair practice charge. 	Clayton alleges that
the State of California (Department of Social Services) (State) violated section 3519(a) of the
Ralph C. Dills Act (Dills Act)1 by terminating his employment because of his protected
activities.
The Dills Act is codified at section 3512 et seq. 	Section 3519 states, in relevant part:
It shall be unlawful for the state to do any of the following:

The Board has reviewed the entire record in this case, including the unfair practice
charge, the ALJ's proposed decision, the briefs of the parties, Clayton's exceptions, and the
State's response. 	The Board finds the proposed decision to be free from prejudicial error and
adopts it as the decision of the Board itself.
ORDER
The unfair practice charge in Case No. SA-CE-1157-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Amador and Baker joined in this Decision.
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. 	For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ROBERT 	CLAYTON,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT
OF 	SOCIAL 	SERVICES),
Respondent.
)
)
)
)
)
)
)
Unfair Practice
Case No. 	SA-CE-1157-S
PROPOSED DECISION
(3/3/2000)
)
Appearances: 	Douglas Moffett, 	Labor Relations Representative,
for Robert 	Clayton; 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	by Nalda L. 	Keller, 	Labor Relations Counsel, 	for
State of 	California 	(Department 	of 	Social 	Services).
Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On July 20, 	1998, 	Robert Clayton 	(Clayton), 	filed an unfair
practice 	charge 	with 	the 	Public 	Employment 	Relations 	Board 	(PERB
or Board) 	against 	the 	State of 	California 	(Department 	of 	Social
Services) 	(Social 	Services). 	The charge alleged violations of
the Ralph C. 	Dills Act 	(Dills Act).1
On July 23, 	1999, 	the Office of the General 	Counsel, 	after
an 	investigation of 	the 	charge, 	issued a complaint 	against
the respondent, 	alleging a violation of 	subdivision 	(a) 	of
section 3519.2
1Unless otherwise noted, 	all 	statutory references 	are 	to 	the
Government 	Code. 	The Dills Act 	is 	codified at 	section 3512 	et
seq.
2 Subdivision (a) 	of section 3519 	states:
It 	shall 	be unlawful 	for the 	state 	to 	do 	any
of 	the 	following:

On July 28, 	1999, 	the respondent 	filed its 	answer to the
complaint 	denying 	all 	material 	allegations 	and 	asserting
affirmative 	defenses.
A 	formal 	hearing was 	held before 	the 	undersigned on
November 16 	and 17, 	1999. 	At 	the conclusion of 	the hearing,
transcripts were prepared, 	briefs were 	filed and 	the 	case was
submitted 	for a proposed decision on February 23, 	2000.
INTRODUCTION
Clayton has 	been employed 	in various 	departments 	within 	the
State of 	California 	(State) 	since 	1980. 	In 1994 	he 	transferred
to the 	State Department 	of Health Services 	(Health). 	On
August 	25, 	1995, 	he was 	served with an adverse action of
dismissal. 	That 	action was based on allegations 	that, 	in his
application 	for employment 	at 	Health, 	he 	failed to disclose 	two
prior rejections 	in probation. 	These 	rejections were 	at 	the
Department 	of 	Commerce 	(Commerce) 	and the 	State 	Teachers
Retirement 	System 	(STRS).
He 	appealed this 	dismissal 	and 	at 	a 	"Skelly"3 hearing 	on
September 12, 	1995, 	it was reduced to a letter of 	reprimand.
On August 	8, 	1995, 	prior to the 	service of 	the 	adverse
action by Health, 	Clayton applied 	for employment 	at 	Social
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this chapter. 	. 	. 	.
3Skellv v. 	State 	Personnel 	Board 	(1975) 	15 	Cal.3d 194 	[124
Cal.Rptr. 	14] 	(Skelly).
22

Services. 	His 	employment 	at 	Social 	Services began on December 	1,
1995, 	and lasted until 	an adverse 	action of 	dismissal 	was 	taken
against 	him on June 	23, 	1998. 	This 	action charged him with
failing, 	in his Social 	Services employment application, 	to
disclose 	his 	prior 	rejections 	at 	Commerce 	and 	STRS.
Clayton 	alleged his 	dismissal 	was 	based on his 	protected
activities 	as 	a 	California 	State 	Employees Association 	(CSEA)
steward 	and not 	on his 	failure 	to 	disclose 	the 	prior 	rejections
on his 	employment 	application.
FINDINGS 	OF 	FACT
Jurisdiction
The parties 	stipulated Clayton was 	a 	State 	employee 	at 	the
time 	of 	the 	subject 	events 	and the 	respondent 	is 	a 	State 	employer
within the 	meaning of 	the Dills Act.
Protected 	Activities
Clayton completed CSEA steward training 	on June 	15, 	1991.
His 	District 	Labor 	Council 	president 	assigned 	him duties 	ranging
from assisting 	in 	the 	distribution of 	the 	union newsletter 	and
fliers 	to polling 	fellow employees 	about 	various 	work 	issues.
CSEA is 	required, 	by the parties' 	memorandum of
understanding, 	to provide 	the 	State with a 	list 	of 	its 	active
stewards. 	During the period under examination, 	1996-1998,
Clayton's name was 	not on these 	lists.
Clayton testified that 	at 	least 	three 	of 	his 	supervisors
were 	aware 	of 	his 	CSEA activities. 	He 	identified them as 	Dick
Williams 	(Williams), 	his 	second level 	supervisor and manager of
33

the Program Assistance Bureau; 	Leslie Frye 	(Frye), 	his third
level 	supervisor 	and director of 	child 	support; 	and a 	third
person whose 	identity he 	could not 	recall.
In 	1998, 	when he distributed 	fliers 	about 	a 	CSEA meeting
regarding a telecommute 	issue, 	he 	inadvertently placed some 	of
the fliers in supervisors' 	mailboxes. 	One supervisor, 	Carmen
Cody 	(Cody), 	came 	to him to explain she 	should not 	have been
given the 	flier. 	Clayton apologized and the matter was 	dropped.
He 	cites 	this 	incident 	to 	support 	his 	contention 	that 	other
managers/supervisors 	were 	aware 	of 	his 	CSEA activities. 	Cody did
not 	testify at 	the 	formal 	hearing.
Clayton knew of 	no other 	supervisors 	or managers 	that 	were
aware 	of 	his 	CSEA activities.
During his 	tenure at 	Social 	Services, 	Clayton never
requested time 	off 	to deal 	with union matters, 	nor did he 	ever
file 	a grievance 	or 	attend an 	investigatory 	interview 	in 	a
representational 	role. 	Both Frye 	and Williams 	insist 	they had no
knowledge 	of 	Clayton's 	stewardship 	or any other 	CSEA role 	when
they participated 	in 	discussions 	regarding 	his 	eventual
dismissal.
In 	1998, 	Clayton 	filed both an informal 	and a 	formal
complaint 	about 	a 	letter 	of 	reprimand he 	received 	from Williams.
This 	matter will 	be 	discussed at 	greater 	length below.
4

Social 	Services 	Employment 	Performance
With one 	exception, 	Clayton's 	Social 	Services 	employment 	as
an 	associate 	governmental 	program analyst 	was 	free 	of
controversy. 	This 	exception occurred 	in June 	1998 	when he was
accused 	of 	improperly delivering 	an 	incoming 	facsimile 	(fax)
transmission. 	The 	cover 	sheet 	of 	the 	fax was 	designated
"confidential" 	and 	allegedly 	contained negative 	information 	about
another employee 	in 	the 	office. 	Rather 	than delivering 	the 	fax
to Williams, 	the 	"confidential" 	addressee, 	Clayton gave 	it to the
subject 	employee. 	He was given a 	"Letter of Reprimand
(Informal)" 	for this action.
In appealing 	this 	letter, 	Clayton 	filed both an 	informal 	and
a 	formal 	complaint. 	His 	attempt 	to have 	the 	reprimand withdrawn
eventually resulted his 	asking to 	see 	his 	personnel 	file. 	Social
Services 	has 	a policy which requires 	a personnel 	file 	to be
examined prior 	to 	its 	being 	shown 	to 	the 	involved 	employee.
Pursuant 	to 	this policy, 	Personnel Analyst 	Dan Knipp 	(Knipp)
examined 	Clayton's 	file.
As 	a result 	of 	this 	examination, 	Knipp became 	aware 	that
Clayton 	had 	previously been 	rejected 	during 	his 	probationary
periods 	at 	Commerce 	and STRS. 	He 	also 	determined that 	these
rejections 	had not 	been 	disclosed 	in his 	Social 	Services
employment 	application. 	Knipp 	requested 	the 	assistance 	of 	Julie
Chappie 	(Chappie), 	a Social 	Services 	labor relations analyst.
Chappie 	conducted 	an 	investigation 	in which 	she 	contacted
Commerce 	and 	STRS. 	Neither 	Chappie 	nor 	Knipp 	had personally met
55

Clayton prior 	to 	the 	time 	they 	reviewed 	and 	investigated 	his
file. 	Nor did either of 	them have 	any knowledge, 	at 	that 	time,
of 	any protected 	activity on 	Clayton's 	part.
Once the 	investigation was 	completed, 	Williams, 	Frye and the
legal 	department 	were made 	aware 	of 	Clayton's 	employment
application deficiencies. 	A consensus 	developed 	that 	Clayton's
employment 	should be 	terminated. 	Frye made 	the 	ultimate 	decision
that 	an 	adverse 	action of 	dismissal 	would be 	prepared and 	served
on Clayton.
Social 	Services 	entered 	into 	evidence 	five 	terminations 	it
issued to other 	employees 	from December 	1991 	to May 	1997. 	Each
of 	these 	terminations 	were 	based on allegations 	that 	the 	subject
employee 	failed 	to 	disclose prior 	rejections 	in probation 	or
resignations-under-pressure 	from previous 	State 	departments.
Clayton alleges 	that Rolando Villarama 	(Villarama), 	his
initial 	Social 	Services 	supervisor, 	was aware, 	as early as
September 29, 	1995, 	of one or both of his 	rejections 	in
probation. 	He 	supports 	this 	allegation with his 	own 	testimony,
as well 	as that of Linette Kleinsasser 	(Kleinsasser), 	a fellow
Social 	Services 	analyst 	who 	also worked at 	Health with Clayton.
They allege 	that 	at 	the 	time 	that 	Clayton was 	attempting 	to
transfer to 	Social 	Services, 	Villarama 	spoke 	to Kleinsasser about
his 	inability to get 	any personnel 	information 	from Health.
Kleinsasser 	told him 	that 	she 	had worked with 	Clayton 	at 	Health
and that 	she 	would vouch 	for his 	work ethic 	and reliability. 	In
addition 	to her personal 	testimony, 	Kleinsasser 	submitted a
66

declaration 	that 	was 	originally used 	in 	a 	federal 	lawsuit 	filed
by Clayton against 	Social 	Services. 	In that 	declaration 	she
described subsequent 	conversations with Villarama, 	as 	follows:
Mr. 	Villarama approached me 	at 	least 	two more
times 	after that 	seeking validation 	that 	Mr.
Clayton would be 	a good employee 	and 	that 	he
had nothing to worry about 	if 	he 	hired Mr.
Clayton. 	In a conversation with Mr. 	Clayton,
he 	told me 	that 	he 	had 	finally 	faxed his
performance 	(probation) 	reports 	to Mr.
Villarama 	because 	they were 	missing 	from his
personnel 	file 	and there was 	a problem
getting them included into 	the 	file. 	It 	is
my belief 	that 	Mr. 	Villarama would not 	have
hired Mr. 	Clayton without 	seeing 	those
reports.
However, 	in that 	same declaration she 	states:
. 	. 	. 	I understand Mr. Villarama has
testified under oath that 	he 	is 	unaware 	of
the nature of Mr. 	Clayton's 	employment
history difficulties, 	particularly with the
California 	Department 	of 	Health 	Services
( D H S ) . . . .
Villarama did not 	testify 	in the 	formal 	hearing 	in this 	case.
Clayton 	also 	submitted 	letters 	from his 	personal 	attorney
and 	clinical 	psychologist. 	Each of 	these 	letters 	stress 	that 	his
complete 	emotional 	recovery 	from an 	earlier 	stress 	related
illness 	is 	dependent 	on his being 	able 	to place 	the previous
rejections 	in probation behind him. 	This 	requires, 	according to
these 	letters, 	his being able 	to refrain from disclosing the
rejections 	to 	future departments 	in employment 	applications. 	The
attorney's 	letter 	stated 	that 	he 	believed 	the 	Skelly decision
permitted 	Clayton 	to 	disregard 	the 	Commerce 	and 	STRS 	rejections
on 	future 	employment 	applications.
77

ISSUE
Did 	Social 	Services 	terminate 	Clayton's 	employment 	because
of 	his protected activity, 	in violation of 	subdivision 	(a) 	of
section 	3519?
CONCLUSIONS 	OF 	LAW
The Board, 	in Carlsbad Unified School 	District 	(1979) 	PERB
Decision No. 	89 	(Carlsbad), 	set 	forth the 	following test 	for
alleged violations 	of 	subdivision 	(a) 	of 	section 3543.5 	of 	the
Educational Employment Relations Act 	(EERA):4
1. 	A single 	test 	shall 	be 	applicable 	in all
instances 	in which violations 	of 	section
3543.5(a) 	are alleged;
2. 	Where 	the 	charging party establishes
that 	the 	employer's 	conduct 	tends 	to or does
result 	in 	some 	harm to 	employee 	rights
granted under the EERA, 	a prima 	facie 	case
shall 	be 	deemed to exist;
3. 	Where 	the harm to the employees' 	rights
is 	slight, 	and the employer offers
justification 	based 	on 	operational 	necessity,
the 	competing 	interest 	of 	the 	employer 	and
the 	rights 	of 	the 	employees will 	be balanced
and 	the 	charge 	resolved 	accordingly;
4. 	Where 	the 	harm is 	inherently destructive
of 	employee 	rights, 	the employer's conduct
will 	be 	excused only on proof 	that 	it 	was
occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course of 	action was 	available;
5. 	Irrespective of 	the 	foregoing, 	a charge
will 	be 	sustained where 	it 	is 	shown that 	the
employer would not 	have 	engaged 	in the
complained-of 	conduct 	but 	for 	an unlawful
motivation, 	purpose or intent. 	[Emphasis
added.]
4EERA 	is 	codified at 	section 3540 	et 	seq.
88

In Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210 	(Novato), 	the Board clarified the Carlsbad test 	for
retaliation 	or discrimination 	in 	light 	of 	the 	National 	Labor
Relations Board decision in Wright Line, 	Inc. 	(1980) 	251 NLRB
1083 	[105 LRRM 1169] 	enforced in part 	(1st Cir. 	1981) 	662 	F.2d
899 	[108 	LRRM 2513]. 	In Novato, 	unlawful motive must be proven
in order to 	find a violation. 	In addition, 	a nexus or connection
must 	be 	demonstrated between 	the 	employer's 	conduct 	and 	the
exercise 	of 	a protected 	right 	resulting 	in harm or potential 	harm
to that 	right.
In order to establish a prima 	facie 	case, 	the 	charging party
must 	first 	prove 	that 	the 	subject 	employee 	engaged 	in protected
activity.5 Next, 	it 	must 	establish that 	the 	employer had
knowledge of 	such protected activity. 	Lastly, 	it must 	prove 	that
the subject 	adverse action(s) 	were taken, 	in whole or in part, 	as
a 	result 	of 	such protected activity.
Proving 	the 	existence 	of 	unlawful 	motivation can be 	a
difficult 	burden. 	The Board acknowledged this 	when 	it 	stated the
following 	in 	Carlsbad:
Proof 	Of 	Unlawful 	Intent 	Where 	Offered Or
Required
Unlawful 	motivation, 	purpose or 	intent 	is
essentially a 	state of mind, 	a 	subjective
5Section 3515 	grants 	State 	employees:
. 	. 	. 	the right to form, 	join, 	and
participate 	in the 	activities 	of 	employee
organizations 	of 	their own 	choosing 	for 	the
purpose 	of 	representation on all 	matters 	of
employer-employee relations. 	. 	. 	.
99

condition generally known only 	to 	the 	charged
party. 	Direct 	and affirmative proof 	is 	not
always 	available or possible. 	However,
following 	generally 	accepted 	legal 	principles
the presence 	of 	such unlawful 	motivation,
purpose 	or 	intent 	may be 	established by
inference 	from the 	entire 	record. 	[Fn.
omitted.]
In addition, 	the Board, 	in Novato, 	set 	forth examples of the
types 	of 	circumstances 	to be 	examined 	in a determination of
whether 	improper animus 	is 	present 	and a motivating 	factor 	in the
employer's action(s). 	These circumstances are 	(1) 	disparate
treatment of the affected employee(s), 	(2) 	proximity of time
between 	the 	participation 	in protected 	activity 	and 	the 	adverse
action, 	(3) 	inconsistent explanations of the employer's
action(s), 	(4) 	departure from established procedures or
standards, 	and 	(5) 	inadequate investigation(s). 	(See also
Baldwin Park Unified School 	District 	(1982) 	PERB Decision No. 	221
(Baldwin 	Park).)
Protected 	Activity
Clayton's 	protected 	activity 	on behalf 	of 	CSEA 	consisted 	of
little more 	than 	(1) 	distributing newsletters 	and fliers, 	and
(2) 	talking to other employees 	about 	the union. 	Even this
activity was 	somewhat 	diminished by CSEA's 	failure 	to 	list 	him as
an active 	steward 	in the periodic 	lists 	it 	sends 	to 	Social
Services.
Knowledge 	of 	Protected Activity
Despite 	Clayton's assertion to the 	contrary, 	the 	two
supervisory 	employees 	who 	testified disclaimed 	any 	knowledge 	of
union 	activity on his 	part 	at 	the 	time 	they participated 	in 	the
10

discussions 	that 	led to his 	termination. 	All 	three persons
testified credibly. 	As 	the burden of 	proof 	is 	on Clayton to
provide persuasive 	evidence 	to 	support 	his 	allegations, 	it must
be 	determined there 	is 	insufficient 	evidence 	to 	support 	a
conclusion 	that 	Clayton's 	activities 	on behalf 	of 	CSEA were 	known
to 	Social 	Service 	supervisory personnel.
Due 	to the preceding analysis, 	it 	is determined that
Clayton's 	CSEA activity never progressed beyond 	a 	minimal 	level.
In addition, 	it 	is also determined that his 	supervisors, 	Williams
and Frye, 	were not 	aware 	of 	such activity at 	the 	time 	they
participated 	in the 	discussions 	that 	led 	to his 	dismissal.
However, 	his 	filing of the 	appeal 	complaints were 	known to both
Williams 	and Frye.
Proof 	of 	Unlawful 	Motivation
One 	of 	the 	circumstances Novato 	sets 	forth to be 	examined
is 	timing of 	the 	negative personnel 	action vis-a-vis 	the
protected 	activity. 	Clayton's 	general 	CSEA 	activity 	started when
he 	became 	a 	steward 	in 	1991 	and continued until 	his 	dismissal.
There 	was 	no 	marked 	escalation 	of 	such 	activity 	immediately prior
to the dismissal.
However, 	he 	attempts 	to rely on the 	chronological
interrelationship 	between his 	appeal 	complaints 	and his 	dismissal
to 	support 	an 	inference 	of 	unlawful 	motivation. 	Timing 	is
important 	in an unlawful 	motivation 	inquiry to 	the 	extent 	that 	it
shows 	that 	a 	supervisor 	responded 	to protected activity by
initiating negative 	personnel 	action 	against 	the 	union activist.
11

That 	cause 	and effect was 	not present 	in this 	case. 	Here,
Clayton was 	initially 	charged with 	an 	impropriety 	that 	caused 	him
to 	receive 	an 	informal 	reprimand. 	His 	appeal 	from this 	reprimand
set 	up 	circumstances 	that 	caused his 	personnel 	file 	to be
examined. 	This 	examination resulted 	in the 	employer 	learning of
his 	failure 	to 	list his prior rejections. 	This 	led to his
eventual 	dismissal. 	There was no evidence 	that 	Williams 	or Frye
were 	so 	incensed by his 	appeal 	complaints 	that 	they retaliated by
asking 	the personnel 	department 	to 	examine 	his 	file 	in an attempt
to 	locate 	evidence 	of 	employment 	application fraud.
The 	evidence 	clearly 	shows 	that 	there 	is 	nothing 	in the
proximity 	of 	time 	between 	Clayton's 	protected 	activity 	and his
dismissal 	that 	supports 	an 	inference 	of 	unlawful 	motivation.
Even if 	there were 	some 	scintilla of 	such evidence, 	it 	has
been held by 	the 	Board that 	timing 	alone 	is 	insufficient 	to
create 	an 	inference 	of 	a 	nexus 	between protected 	activity and
negative 	personnel 	actions. 	(Moreland Elementary 	School 	District
(1982) 	PERB Decision No. 	227; 	Charter Oak Unified School District
(1984) 	PERB Decision No. 	404.)
Unlawful 	motivation may 	also 	be 	inferred 	from disparate
treatment of 	the employee. 	However, 	there was no evidence
proffered 	regarding 	dissimilar 	treatment 	of 	other 	Social 	Services
employees 	who 	had 	failed 	to 	disclose 	prior 	rejections 	in
probation. 	To the 	contrary, 	there was evidence 	five other
employees, 	who had likewise 	failed to disclose 	such rejections,
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were 	also 	terminated. 	There 	is 	nothing with regard to 	disparate
treatment 	that 	would 	support 	an 	inference 	of 	unlawful 	motivation.
Inconsistent 	employer 	explanation(s) 	can also be used to
support 	an 	inference 	of 	unlawful 	motivation.
In 	this 	case 	the employer has 	continuously expressed a
clear, 	unequivocal 	explanation for 	its 	action. 	Clayton asked to
see his personnel 	file. 	In accordance with departmental 	policy
his 	file 	was 	examined by Knipp who 	noticed 	the 	inconsistency
between 	the 	information 	contained 	therein 	and 	Clayton's
employment 	application. 	Knipp 	then notified a 	labor 	relations
analyst 	who 	investigated, 	thereby leading 	to Clayton's 	eventual
dismissal.
There 	is 	no 	evidence 	to 	support 	an 	inference 	of 	unlawful
motivation with 	regard 	to 	inconsistent 	employer 	explanations.
With 	regard 	to 	departures 	from established procedures 	or
standards, 	Clayton alleges 	that 	Social 	Services 	knew of 	his prior
rejections 	from his 	first 	immediate 	supervisor, 	Villarama.
Clayton asserts Villarama was 	aware 	of 	his 	difficulties 	at
Health, 	and the 	reasons 	therefore. 	Kleinsasser supports him in
this 	assertion. 	However, 	Kleinsasser's own declaration states
that Villarama, 	at 	some 	time 	in the past 	in some unknown forum,
denied 	such 	knowledge.
This evidence 	suffers 	from four defects. 	First, 	it 	is
hearsay which, 	although admissible, 	cannot 	be used to exclusively
support 	a 	finding.
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Second, 	even if Villarama knew, 	to some extent, 	of the
difficulties 	Clayton was 	having at 	Health, 	there 	is 	no evidence
that 	he 	knew 	that 	Clayton had been 	twice 	rejected prior 	to 	his
employment 	at 	Health. 	It must 	be 	remembered that 	Clayton was 	not
terminated by Social 	Services 	because 	of 	his 	rejection 	at 	Health,
but 	rather because 	he 	failed to disclose 	his 	rejections 	at
Commerce 	and 	STRS.
Third, 	even 	if Villarama had sufficient 	knowledge 	of
Clayton's prior rejections, 	and if 	such knowledge 	could be
imputed to 	Social 	Services, 	it would be 	little more 	than a
departure 	from established procedures. 	This 	departure 	would
consist 	of 	a rebuttal 	to Social 	Services' 	contention that 	it
first 	learned of 	such rejections 	when 	it 	examined 	Clayton's
personnel 	file. 	This departure, 	although supportive of 	an
inference of unlawful motivation, 	would be 	insufficient, 	by
itself, 	to 	support 	an ultimate 	conclusion that 	his 	termination
was 	due 	to his protected activities.
Lastly, 	even if 	Social 	Services knew of 	the rejections 	in
1995, 	there 	is no evidence that 	supports Clayton's 	allegation
that 	its 	decision to 	terminate 	him in 	1998 	was 	based on his
protected 	activities.
The 	evidence 	with regard 	to 	departures 	from established
procedures 	or 	standards 	is 	insufficient 	to 	support 	an 	inference
of unlawful 	motivation.
There 	was 	no 	evidence 	with regard to 	inadequate
investigations.
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The 	examination of 	the 	Novato 	and Baldwin 	Park 	circumstances
leads 	to 	a 	conclusion that 	there was 	insufficient 	evidence 	upon
which 	to 	support 	an 	inference 	of 	unlawful 	motivation.
Summary
After an examination of 	the 	foregoing, 	it 	is 	determined that
there 	is 	insufficient 	evidence 	to 	support 	a 	charge 	that 	Clayton's
dismissal 	was 	the 	result 	of 	his protected activities.
PROPOSED 	ORDER
Based on the 	foregoing 	findings 	of 	fact, 	conclusions of 	law
and the 	entire 	record in this 	case, 	it 	is 	found that 	the 	State 	of
California 	(Department 	of 	Social 	Services) 	did not 	violate 	the
Ralph C. 	Dills Act, 	Government Code section 3519(a), 	when it
terminated Robert 	Clayton. 	It 	is 	ORDERED that 	all 	aspects 	of 	the
charge and complaint 	in Case No. 	SA-CE-1157-S, 	Robert 	Clayton v.
State of 	California 	(Department 	of 	Social 	Services), 	are hereby
DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8, 	section
32305, 	this 	Proposed Decision and Order 	shall 	become 	final 	unless
a party 	files 	a 	statement 	of 	exceptions 	with the 	Board 	itself
within twenty days 	of 	service 	of 	this 	Proposed Decision. 	The
Board's address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th 	Street
Sacramento, 	CA 95814-4174
FAX: 	(916) 	327-7960
In accordance with PERB Regulations, 	the 	statement 	of
exceptions 	should 	identify by page, 	citation or 	exhibit 	number
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the portions 	of 	the 	record, 	if 	any, 	relied upon for such
exceptions. 	(See Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32300.)
A document 	is 	considered 	"filed" 	when 	actually received
before the close of business 	(5 p.m.) 	on the last day set 	for
filing 	or when mailed by 	certified or Express 	United 	States 	mail,
as 	shown on the postal 	receipt 	or postmark, 	or delivered to a
common carrier promising overnight 	delivery, 	as 	shown on 	the
carrier's 	receipt, 	not 	later than the 	last 	day set 	for 	filing.
(See Cal. 	Code of Regs., 	tit. 	8, 	sec 32135 (a); 	see also Cal. 	Code
Regs., tit. 	8, 	sec. 32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by
facsimile 	transmission before 	the 	close 	of 	business 	on the 	last
day 	for 	filing, 	together with a 	Facsimile 	Transmission Cover
Sheet which meets the requirements of Cal. 	Code Regs., 	tit. 	8,
sec. 	32135(d), 	provided the 	filing party also places the original
together with 	the 	required number 	of 	copies 	and proof 	of 	service,
in the U.S. 	mail. 	(Cal. 	Code Regs., 	tit. 	8, 	secs. 	32135(b), 	(c)
and 	(d) ; 	see also Cal.- Code Regs., 	tit. 	8, 	secs. 	32090 and
32130.)
Any 	statement 	of 	exceptions 	and 	supporting 	brief 	must 	be
served 	concurrently with 	its 	filing 	upon 	each party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany each 	copy 	served on
a party of 	filed with the Board 	itself. 	(See 	Cal. 	Code of 	Regs.,
tit. 	8, 	secs. 	32300, 	32305, 	32140 and 32135 (c).)
Allen 	R. 	Link
Administrative 	Law 	Judge
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