Ventura County Community College District (PERB 1323E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VENTURA COUNTY 	FEDERATION OF
COLLEGE 	TEACHERS,
Charging 	Party,
v.
VENTURA COUNTY COMMUNITY COLLEGE
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3829
PERB Decision No. 	1323
April 	8, 	1999
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Appearances: Lawrence Rosenzweig, Attorney, for Ventura County
Federation of College Teachers; Burke, Williams & Sorensen by
Daniel J. Hammond, Attorney, for Ventura County Community College
District.
Before Caffrey, Chairman; Dyer and Amador, Members.
DECISION
DYER, Member: This case comes before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the
Ventura County Community College District (District) to a Board
administrative law judge's (ALJ) proposed decision.
In the unfair practice charge, the Ventura County Federation
of College Teachers (Federation) alleged that the District
violated section 3543.5(a) and (b) of the Educational Employment
Relations Act (EERA)1 when it issued District employee Phil
EERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references are to the
Government Code. EERA section 3543.5 provides, in relevant part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose 	or threaten to 	impose 	reprisals

Passno 	(Passno) 	a disciplinary letter, 	placed Passno on paid
administrative 	leave, 	and ordered him to undergo 	a psychological
examination 	in 	retaliation 	for his 	protected activity.
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.
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by 	this 	chapter.
On December 	11, 	1997 a 	complaint was 	issued by PERB's 	Office
of 	the General 	Counsel. 	The ALJ held a 	formal 	hearing on
March 25 	and 26, 	1998 	and rendered a proposed decision holding
that 	the District violated EERA section 3543.5(a) 	and 	(b) 	when it
issued a 	disciplinary letter 	to 	Passno 	in 	retaliation 	for his
attendance 	at 	a grievance meeting. 	The ALJ dismissed 	the
remaining 	allegations.
FINDINGS 	OF 	FACT
The District 	is 	a public 	school 	employer within 	the meaning
of EERA section 3540.1(k). 	The Federation is an employee
organization within the meaning of 	EERA section 3540.1(d).
Passno 	is 	an employee within 	the meaning 	of 	EERA section
3540.l(j). 	The District and the Federation are parties 	to a
collective bargaining 	agreement 	(CBA) 	with a negotiated 	term of
July 1, 	1994 through June 30, 	1997.
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The District 	has 	employed Passno at Ventura 	College 	for 28
years. 	He has 	coached baseball, 	tennis, 	and football and has
served as 	head 	of 	the physical 	education department.
On May 22, 	1997,2 Steve Tobias 	(Tobias), 	Passno's immediate
supervisor, 	requested a meeting with Ventura College 	President
Larry Calderon 	(Calderon). 	During the meeting, 	Tobias 	informed
Calderon 	that 	he 	had 	recently become 	aware 	that 	Passno had been
convicted of 	spousal 	abuse. 	Tobias 	expressed concern about 	his
relationship with 	Passno 	and 	indicated 	that 	he 	had begun 	to 	feel
physically 	threatened by 	Passno. 	Calderon was 	troubled by
Tobias' 	concerns. 	He 	considered Tobias a 	formidable athlete and
felt 	that 	it would 	take 	something 	serious 	to make 	him react 	in
this manner. 	Calderon and Tobias 	discussed the need to pursue
some 	form of 	preventive 	action by 	the District.
Pursuant 	to his 	discussion with Calderon, 	Tobias 	contacted
District 	Chancellor Philip Westin 	(Westin). 	Tobias met with
Westin on May 22, 	as well. 	During that meeting, 	Tobias 	informed
Westin 	that 	he 	had a 	security 	concern 	involving 	Passno. 	Tobias
briefed Westin on 	the 	history of 	conflict 	between himself 	and
Passno 	and 	described 	instances 	of 	angry behavior 	on 	Passno's
part. 	Tobias 	also 	told Westin about 	a recent 	conversation he had
with a police 	officer. 	The 	officer had 	informed Tobias 	that
Passno had pled no 	contest 	to 	the 	charge 	of 	inflicting 	corporal
2A11 	dates 	refer to 	1997 unless 	otherwise 	indicated.
W
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injury on his 	wife 	and advised Tobias 	to 	consider 	seeking an
injunction against 	Passno.
On May 23, 	Westin asked Deputy Chancellor Michael 	Gregoryk
(Gregoryk) 	to 	investigate 	the 	situation. 	Gregoryk proceeded to
speak to a number of people, 	including Tobias and Calderon.
Passno was 	not 	informed of 	this 	investigation.
On June 	3, 	Passno filed seven grievances under the CBA. 	The
CBA defines 	a 	grievance 	as 	"a written 	complaint 	alleging 	that
there has been a refusal 	to apply 	[the CBA] 	or misapplication of
the terms of 	[the CBA]." 	Nonetheless, 	two of Passno's grievances
failed to reference any specific 	section of 	the 	CBA. 	The
remaining 	five 	grievances 	cited 	CBA sections 	with 	little 	apparent
relevance to the allegations. 	In addition, 	six of 	Passno's
grievances 	failed 	to 	comply with 	the 	time 	limits 	set 	forth 	in 	the
CBA. 	Despite 	these defects, 	Passno testified that he believed
that 	the 	grievances 	were 	an appropriate way 	to address 	these
issues.
Tobias 	reviewed the grievances 	at 	the 	first 	step 	of 	the
grievance process 	and denied all 	seven. 	Passno 	then raised the
grievances 	to the 	second 	(college president) 	step of 	the
grievance 	process 	and 	requested a meeting with 	President
Calderon. 	Although the 	CBA does 	not 	require Calderon to meet
with a grievant 	at 	the second level, 	Calderon had made 	it a
ractice 	to meet with grievants 	and discuss 	their grievances.
ccordingly, 	Calderon 	scheduled a meeting with 	Passno 	for July 	9.
p
A
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At 	the July 9 	meeting, 	Calderon reviewed a 	few of 	Passno's
grievances 	and 	explained why he 	considered 	them to be
inappropriate. 	After a time, 	Calderon turned to Passno and told
him that 	he would 	continue 	to 	go 	through 	the 	grievances 	but 	that
it 	appeared 	to be a waste 	of 	time. 	Calderon testified that
Passno acquiesced and, 	prior to the 	end of 	the meeting, 	agreed to
withdraw the grievances.3
At 	that 	time, 	Calderon moved from behind his 	desk, 	sat down
next 	to Passno and said, 	"Phil, 	I don't understand what you're
doing. 	You 	seem awfully angry." 	Passno 	responded 	that 	he 	wanted
to get past 	all 	of 	the problems 	and 	focus 	on teaching but 	that
there were 	some 	"injustices" 	that needed to be 	resolved. 	Passno
indicated that 	he was 	in therapy to deal 	with his 	anger.
On July 10, 	Calderon sent 	Passno two memoranda. 	The 	first
was 	addressed 	to 	Passno and 	copied 	to 	the 	Federation grievance
representative. 	That 	memorandum simply memorialized 	Passno's
withdrawal 	of 	the 	seven grievances. 	The 	second memorandum was
addressed 	to 	Passno and 	copied 	to Westin and Gregoryk. 	In 	this
memorandum, 	Calderon indicated that, 	"after careful 	consideration
I 	have become 	concerned about 	the 	degree 	of 	obsession with which
you 	interpret 	circumstances 	related 	to your working
relationships. 	In the 	interest 	of your safety as well 	as 	that 	of
3 There 	appears 	to be 	some 	dispute 	regarding whether 	Passno
actually withdrew his 	grievances 	during 	the July 9 	meeting. 	As
that 	issue 	is not material 	to our resolution of 	this 	case,
however, 	we make no 	specific 	finding 	regarding 	the 	disposition of
Passno's 	seven grievances.
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those with whom you work, 	I 	am therefore 	recommending 	to
Chancellor Westin 	that 	you undergo 	some 	form of 	appropriate
psychological 	evaluation to 	[sic] 	prior to 	Fall 	1997 	semester and
be 	deemed 	fit 	to 	return to work."
Calderon 	testified 	that 	he 	sent 	two memoranda because 	he
wanted to address 	two 	issues. 	First, 	he wished to bring official
closure 	to 	the 	grievances 	and to put 	Passno's withdrawal 	of 	the
seven grievances 	on record. 	Second, 	his 	observation of 	Passno,
coupled with his 	meeting with Tobias 	had 	raised 	substantial
safety 	concerns 	for Calderon. 	Calderon 	testified 	that 	he 	sent
the 	second memorandum because 	he wished 	to 	inform Passno 	of 	his
"observation and contemplation" 	of 	Passno's behavior. 	Calderon
testified 	that 	safety was 	"the 	only basis" 	for his 	recommendation
that 	Passno undergo a psychological 	evaluation.
On July 	14, 	Gregoryk reported back to Westin regarding his
investigation of 	Passno. 	Gregoryk 	informed Westin that 	his
investigation had confirmed Tobias' 	concerns 	and that 	some
employees 	feared 	that 	Passno's 	anger might 	be 	escalating.
Gregoryk 	recommended 	that 	Passno be 	sent 	to a psychiatrist 	for
evaluation. 	After 	consultation with 	the District's 	general
counsel, 	Westin decided to procure an outside 	evaluation of 	the
situation.
Westin retained the 	services 	of Michael 	Corcoran 	(Corcoran),
a 	former 	Secret 	Service 	agent 	who 	had performed 	similar
investigations 	for the District 	in the past. 	Gregoryk gave
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Corcoran the names 	of 	four of 	Passno's 	long-term acquaintances.
Gregoryk also gave 	Corcoran a number of 	documents, 	including 	the
seven grievances, 	Calderon's July 10 memo, 	and a record of
Passno's 	no-contest plea.
In mid-August, 	Corcoran submitted his 	report 	to Gregoryk.
Based on his 	interviews 	and review of 	documents, 	Corcoran
concluded 	that 	Passno 	represented a moderate 	threat 	of 	violence
with Tobias 	as 	a possible 	target. 	Corcoran recommended that 	the
District 	send 	Passno 	to a psychological 	evaluation 	to 	ensure 	that
he was 	fit 	to 	continue working 	for the District.
Westin 	and Gregoryk 	discussed 	Corcoran's 	recommendations.
Based on Corcoran's assessment, 	Passno's no contest plea, 	Tobias'
reports 	of 	other 	incidents 	involving 	Passno and another
employee's 	expressed 	concern 	that 	she might 	get 	caught 	up 	in an
altercation between Tobias 	and Passno, 	Westin and Gregoryk
decided 	to 	require 	Passno 	to undergo a 	fitness 	for duty
evaluation. 	Westin testified that 	the decision was 	not based on
Passno's grievances.
On August 	15, 	Passno and a 	Federation representative met
with Gregoryk. 	Gregoryk 	told 	Passno 	that 	the District 	was
placing 	him on administrative 	leave 	with pay and 	that 	he 	should
report 	to a doctor 	in Santa Monica 	for a psychological
evaluation. 	He 	ordered Passno not 	to 	return to 	the 	campus 	until
the 	evaluation was 	complete.
Passno met with the 	doctor 	for 	three 	days. 	After 	the
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examination, 	the doctor recommended that 	the District 	return
Passno to work. 	During the 	Fall 	of 	1997, 	Passno worked on two
special 	projects 	for Gregoryk. 	Passno began teaching again 	in
the Spring of 	1998.
DISCUSSION
As 	noted above, 	the 	complaint 	in this 	case alleged 	that 	the
District 	retaliated against 	Passno both when Calderon 	issued 	the
July 	10 	memorandum and when Gregoryk placed 	Passno 	on
administrative 	leave pending a psychological 	evaluation.
In order to state a prima 	facie 	case 	for retaliation, 	a
charging party must 	establish by a preponderance 	of 	the 	evidence
that: 	(1) 	the employee engaged in activity protected by the
EERA; 	(2) 	the employer knew of said activity; 	and 	(3) 	the
employer 	took adverse 	action against 	the 	employee because 	of 	the
activity. 	(Fall 	River Joint Unified School District 	(1998) 	PERB
Decision No. 	1259 	(Fall River); 	Novato Unified School District
(1982) 	PERB Decision No. 	210 at p. 	6 	(Novato).) 	Although an
employee's 	participation 	in protected activity and 	the 	employer's
knowledge 	thereof 	can 	often be 	demonstrated by 	empirical
evidence, 	direct proof of unlawful motivation is 	rarely possible.
(Carlsbad Unified School District 	(1979) 	PERB Decision No. 	89 	at
p. 	11.) 	Accordingly, 	the Board recognizes 	the 	following
circumstantial 	indications 	of unlawful motivation: 	(1) 	the
proximity 	of 	time between 	the protected activity and 	the 	adverse
action; 	(2) 	disparate treatment of the affected employee(s); 	(3)
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departure 	from established procedures; 	(4) 	inconsistent or
contradictory justifications 	for the 	employer's 	actions; 	and 	(5)
inadequate 	investigation. 	(Fall River at p. 	19; 	Baldwin Park
Unified School District 	(1982) 	PERB Decision No. 	221 at p. 	16;
Novato at p. 	7.) 	If 	the 	charging party is able 	to demonstrate
more 	than one 	of 	these 	circumstantial 	indicia 	of unlawful
motivation, 	the Board will 	find that 	it 	is more 	likely than not
that 	the 	employer 	took the 	adverse 	action 	in retaliation 	for 	the
employee's 	protected activity. 	Once 	the 	charging party has
established an 	implication of unlawful motivation, 	the burden of
proof 	shifts 	to 	the 	employer to 	establish that 	it would have
taken 	the adverse action 	in spite 	of 	the 	employee's protected
activities. 	(Fall River at pp. 	20-21; 	Novato at p. 	14.)
July 	10 	Memorandum
The parties 	dispute 	every element 	of 	the prima 	facie 	case,
including whether or not 	Passno's 	filing and pursuit 	of 	facially
defective 	grievances 	was 	an activity protected by 	the 	EERA.
However, 	the absence of any element 	of 	the prima 	facie 	case
requires 	the Board to dismiss 	the allegation. 	(See, 	e.g.,
Los Angeles Unified School District 	(1998) 	PERB Decision No.
1300, 	warning letter at p. 	3 	(motivation); 	Sulphur Springs Union
Elementary School District 	(1997) 	PERB Decision No. 	1229, 	warning
letter at pp. 	4-5 	(participation in protected activity); 	Little
Lake School District 	(1997) 	PERB Decision No. 	1228, 	warning
letter at p. 	3 	(employer knowledge).) 	Assuming, 	for the moment,
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that 	Passno 	engaged 	in protected activity and 	that 	Calderon's
letter constituted an adverse action, 	we 	conclude 	that 	Calderon
did not 	issue 	the 	July 	10 	memorandum because 	of 	Passno's
protected 	activity.
The 	filing and pursuit 	of 	grievances 	is 	an activity
protected by 	the 	EERA. 	(San Bernardino City Unified School
District 	(1998) 	PERB Decision No. 	1270, 	proposed dec. 	at
p. 	72; 	Healdsburg Union High School District 	(1997) 	PERB Decision
No. 	1185, 	proposed dec. 	at p. 	47 	(Healdsburg).) 	However,
participation 	in protected activities 	does 	not 	insulate an
employee 	from legitimate 	employer actions. 	(Fall 	River at
pp. 	22-24; 	Healdsburg, proposed dec. 	at p. 	69.)
Here, 	Calderon testified that 	Passno appeared angry and
frustrated during the grievance meeting. 	In addition, 	Tobias'
expressed 	fear of 	Passno 	and 	Passno's 	no-contest 	plea 	on 	spousal
abuse 	charges 	had made a 	substantial 	impression 	on Calderon.
Calderon was 	aware 	that 	Tobias 	had expressed his 	concerns 	to 	the
District 	administration and 	that 	the 	administration had begun an
investigation 	into 	Passno's potential 	for violence. 	Under these
circumstances, 	Calderon had an obligation to 	inform the
administration of 	his 	concerns 	about 	Passno's 	attitude and
conduct 	during 	the 	grievance meeting.
It was 	Passno's behavior, 	rather than his protected
activity, 	which motivated Calderon to write 	the June 	10
memorandum. 	Accordingly, 	Calderon's June 	10 memorandum did not
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violate 	the 	EERA.
Administrative 	Leave 	and 	Psychological 	Evaluation
We 	reach the 	same 	conclusion with 	regard 	to 	the 	allegations
concerning 	the District's 	decision 	to place 	Passno 	on
administrative 	leave 	and 	require 	him to undergo 	a psychological
evaluation. 	As 	noted above, 	the process 	that 	resulted in the
District's 	decision 	to place 	Passno 	on administrative 	leave
pending 	a psychological 	evaluation 	originated prior 	to 	Passno's
protected activity, 	when Westin 	talked 	to Tobias 	and 	then asked
Gregoryk to 	investigate. 	After Passno 	filed his 	grievances,
Westin and Gregoryk brought 	in 	Corcoran 	for an 	outside 	assessment
of 	the 	situation, 	a move which would tend to limit 	any bias 	in
the process. 	There 	is no evidence 	that 	Corcoran was 	hostile
towards, 	or held any interest 	in, 	Passno's protected activity.
Although he 	saw Calderon's July 10 memo, 	Corcoran did not
interview 	Calderon 	but 	only 	interviewed 	long-term acquaintances
of 	Passno. 	When Corcoran finally gave his assessment, 	it was
reasonable 	for Gregoryk and Westin 	to 	rely on 	it.
Gregoryk 	testified 	credibly 	that 	the 	ultimate 	decision was
based on Corcoran's assessment, 	Passno's no contest plea, 	Tobias'
reports 	of 	Passno's behavior, 	and another employee's 	expressed
concerns 	about 	a possible 	altercation. 	Westin 	credibly 	testified
about 	the grievances, 	about which he knew little, 	and which were
not 	a 	factor. 	Both the ultimate decision and the process 	that
produced 	it 	were 	consistent 	with written District 	policy and with
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the past 	treatment 	of 	another 	faculty member, 	who had not 	filed
grievances. 	From the record as a whole, 	it appears 	the decision
would have been 	the 	same 	whether or not 	Passno had engaged 	in
protected 	activity.
ORDER
The 	charge and complaint 	in Case No. 	LA-CE-3829 	are hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
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