State of California (Department of Personnel Administration)(Moore) (PERB 0772S)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
JAMES ALIN MOORE,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
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) 	Case No. 	SF-CE-85-S
PERB 	Decision No. 	772-S
September 	29, 	1939
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Appearances: 	James Alin Moore, 	on his own behalf; 	Kenneth R.
Hulse, 	Labor Relations Counsel, 	for the State of California
(Department of Personnel Administration).
Before Porter, 	Shank and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB) 	on exceptions 	filed by James Alin Moore
(Moore) 	to the attached proposed decision of a PERB administra-
tive 	law judge 	(ALJ). 	The ALJ 	found that Moore was 	appropriately
dismissed 	from his 	position with 	the 	State 	Department 	of
Rehabilitation 	(Department); 	specifically, 	Moore's protected
activities under the Ralph C. 	Dills Act 	(Dills Act)1 were not the
basis 	for his 	dismissal.
DISCUSSION
Moore was 	employed 	in the 	Department's 	Santa Cruz 	office 	as
a 	vocational 	rehabilitation 	counselor. 	Moore 	received 	a 	formal
reprimand on February 20, 	1986, 	for sexual harassment based on a
1The Dills Act 	is 	codified at Government Code 	section 	3512
et 	seq.
_____ )

complaint 	filed by a 	co-worker. 	A 	second 	separate 	case 	of 	sexual
harassment, 	based on a 	subsequent complaint, 	resulted in Moore's
dismissal, 	effective July 	15, 	1986. 	Moore appealed the letter of
reprimand and the discharge to the 	State Personnel 	Board 	(SPB).
The 	appeals 	were 	consolidated 	and 	a hearing was 	held 	on
October 24, 	November 21, 	and December 12, 	1986, 	before an SPB
administrative 	law 	judge. 	The 	administrative 	law judge upheld
the 	letter of reprimand and discharge. 	On May 5, 	1987, 	the 	SPB
adopted 	the 	findings 	and 	conclusions 	of 	the 	administrative 	law
judge, 	and on July 21, 	1987, 	denied a petition for a rehearing.
Santa 	Cruz 	County 	Superior Court 	has 	denied Moore's 	Petition 	for
Writ of Mandate, 	Prohibition or other Appropriate Writ.
On August 	12, 	1987, 	Moore filed an unfair practice charge
with 	PERB 	alleging 	that 	he 	had been dismissed 	from 	state
employment due 	to his protected activities 	as 	a union
representative.
Government Code section 3514.5, 	subdivision 	(a), 	proscribes
the 	issuance 	of 	a 	complaint 	"in respect 	of 	any charge based upon
an 	alleged unfair practice 	occurring more 	than 	six months 	prior
to 	the 	filing of 	the 	charge." 	This 	statutory proscription 	is
jurisdictional. 	(California 	State 	University. 	San Diego 	(1989)
PERB Decision No. 	718-H, 	pp. 	8-15.)
As 	Moore 	filed his 	charge more than 	six months 	after the
occurrence of the alleged unfair practice, 	the 	charge and
complaint 	must 	be dismissed 	for 	lack of 	jurisdiction.
22

Even assuming that PERB had 	jurisdiction, 	Moore has 	shown
only 	that he was 	involved 	in protected 	activity under the 	Dills
Act 	and that 	some Department officials were aware 	of 	that
activity. 	The record, 	however, 	fails to 	show any evidence to
support 	Moore's 	contention that 	Department officials 	had 	an
unlawful 	motive 	in 	imposing discipline 	on the grounds 	of 	sexual
harassment.2
ORDER
For the 	foregoing reason, 	the unfair practice 	charge 	in Case
No. 	SF-CE-85-S is hereby DISMISSED.
Member Shank 	joined 	in this 	Decision.
Member Porter's 	concurrence begins 	on page 	4.
2The 	anti-union retaliation defense 	could have been, 	but was
not, 	raised before the SPB. 	Had the defense been raised,
litigated and decided by the SPB, 	and had a 	charge been timely
filed with PERB, 	PERB nevertheless would have declined to
exercise 	jurisdiction under 	the 	collateral 	estoppel 	doctrine.
State 	of 	California 	(Department of 	Developmental 	Services) 	(1987)
PERB Decision No. 	619-S. 	Since this 	case 	is being dismissed for
Untimeliness, 	we 	need not now decide 	the question of whether PERB
should have declined to 	exercise 	jurisdiction based 	on the
charging party's 	failure 	to 	raise 	this 	defense before 	the 	SPB.
33

Porter, 	Member, 	concurring: 	I concur in the dismissal of
the unfair practice 	charge 	for 	lack of 	jurisdiction due 	to 	the
charging party's 	(Moore) 	failure to 	file the unfair practice
charge within 	six months 	of 	the 	occurrence of 	the 	alleged unfair
practice. 	I 	also agree with my colleagues that, 	on the merits,
Moore 	did not 	establish an unfair practice 	violation by 	either
the respondent Department of 	Personnel Administration 	(DPA) 	or by
the 	Department 	of 	Rehabilitation.1 My concurrence 	is 	also based
on 	a 	separate 	and 	independent 	threshold 	jurisdictional 	ground:
the Public 	Employment Relations 	Board's 	(PERB or Board) 	lack
of 	jurisdiction with respect 	to 	state 	civil 	service dismissals
and/or 	other 	civil 	service disciplinary 	actions 	within 	the
constitutional 	jurisdiction of 	the 	State 	Personnel 	Board.
A chronological 	synopsis 	of 	the pertinent 	facts 	may be
helpful.
Moore was 	a permanent 	state 	civil 	service 	employee holding a
vocational 	rehabilitation 	counselor position 	in the 	Department 	of
Rehabilitation. 	Certain 	"sexual harassment" 	complaints 	against
Moore, 	by a Santa Cruz County female employee in 	1985, 	resulted
in 	the 	Department 	of 	Rehabilitation counseling Moore 	and giving
1The 	instant 	charge 	concerns 	an alleged unfair practice 	by
the 	Department 	of 	Rehabilitation. 	The named respondent party
is 	the Department of Personnel Administration, 	within which is
the 	Division of 	Labor Relations, 	the designated representative
of 	the 	Governor 	in 	collective 	bargaining matters 	under 	the 	State
Employer-Employee Relations Act 	(SEERA) 	(see Gov. 	Code, 	secs.
3517 	and 	19819.5). 	The respondent DPA is a legislatively created
administrative agency 	(Stats. 	1981, 	ch. 	230) 	which should not be
confused with 	the 	constitutionally 	created 	State 	Personnel 	Board
(Cal. Const., art. VII).
4

him a 	civil 	service disciplinary Notice of Formal 	Reprimand, 	with
the Formal 	Reprimand becoming 	effective on February 	28, 	1986.2
Moore 	appealed 	the 	Formal 	Reprimand 	to 	the 	State 	Personnel 	Board.
While the 	latter appeal was pending, 	another female
rehabilitation 	counselor and 	co-worker of 	Moore's 	filed 	a 	"sexual
harassment" 	complaint against Moore 	for acts 	occurring 	from mid-
1985 	through the 	first part of 	1986. 	This 	resulted 	in the
Department 	of 	Rehabilitation 	filing 	a 	civil 	service 	disciplinary
notice of dismissal against Moore, 	effective July 25. 	1986.
Moore 	appealed 	the 	latter action to 	the 	State 	Personnel 	Board,
and 	the 	Formal 	Reprimand 	and 	the 	Dismissal were 	consolidated 	for
hearing by 	the 	State Personnel 	Board. 	An adjudicatory hearing
was 	held before 	an administrative 	law judge 	(ALJ) 	of 	the 	State
Personnel Board 	(SPB) 	on October 24, 	November 21 and December 	12
of 	1986. 	Moore was present at the SPB hearings 	and was
represented by 	a 	field 	representative 	of 	the American 	Federation
of State, 	County, 	and Municipal Employees 	(AFSCME), 	Moore's union
and 	the 	exclusive 	representative 	of 	Moore's 	state 	bargaining
unit.
At the SPB hearings, 	at which Moore and a 	number of
22The Notice 	of 	Formal 	Reprimand was 	served 	on Moore 	on
February 	11, 	1986, 	and advised Moore of his 	right to review
the materials 	upon which 	the disciplinary action was 	based, 	and
of 	his 	rights 	to 	respond 	in writing or orally and/or to 	arrange
a 	meeting with 	the 	assistant 	deputy director prior 	to 	the
February 28 effective date. 	(See SPB Rule 61, 	2 Cal. 	Admin.
Code, 	sec. 	61; 	Skelly v. 	State Personnel Board 	(1975) 	15 Cal.3d
194, 	215.) 	Moore was 	also advised of his 	right to appeal the
Formal 	Reprimand to 	the 	State 	Personnel 	Board regardless 	of
whether he 	chose to 	respond to 	the Notice.
Un	5

Department 	of 	Rehabilitation 	employees 	and 	supervisors 	testified,
Moore 	and his 	union representative 	did 	not 	raise 	any 	suggestion
or 	inference 	in his 	testimony or 	in the 	questioning of 	any of
the 	department witnesses 	that 	Moore's 	union activities 	played
any part 	in his 	dismissal. 	Moore 	testified that he 	had never
had 	any 	job performance problems, 	had gone 	through 	five different
probationary periods, 	had received four promotions, 	had been a
CSEA 	job 	steward and was 	active 	in AFSCME as 	a board member, 	and
had 	"always 	gotten along very well" 	with 	co-workers 	and 	"with
management." 	Moore did 	testify that he 	may have 	encountered
some 	on-the-job difficulties--including a petition by 	some 	of 	his
co-workers 	that 	he be transferred--because he was 	a 	"recovering
alcoholic." 	While 	Moore 	denied any 	improper acts 	toward 	the
two 	female 	employees, 	his union representative presented the
testimony 	of 	Moore's 	psychologist who 	testified 	as 	to what 	he
perceived 	to 	be 	the psychological 	motivation behind 	the way
Moore 	acted 	toward 	the 	female 	employees 	and how Moore 	may have
misconceived how the 	employees were 	responding to him. 	The
psychologist gave his 	opinion that, 	if Moore was 	retained on
the 	job 	and unequivocally told to 	stay 	away 	from the 	two 	female
employees, 	he believed Moore would comply. 	Moore's union
representative also attempted to 	suggest, 	in his 	questioning of
one of the department's 	supervisors, 	that the reason why 	such
severe discipline was 	being taken against 	Moore was 	because
of 	an already pending 	civil 	lawsuit 	against 	the 	Department 	of
Rehabilitation 	in 	connection with 	another 	sexual 	harassment 	case
6

involving a different department employee 	(not Moore).
On December 31, 	1986, 	following the receipt of the parties'
final written closing arguments, 	the matter was 	deemed 	submitted
to 	the ALJ 	for a proposed decision.
On February 4. 	1987. 	while the ALJ's proposed decision in
the 	SPB proceedings was pending, 	Moore 	filed an unfair practice
charge with PERB, 	charging that his dismissal of July 25. 	1986,
was 	because of his 	union activities.3
3The 	record herein 	shows 	that 	following 	the dismissal 	Moore
also 	filed 	for unemployment 	insurance benefits. 	The California
Employment Development Department 	(EDD) 	denied unemployment
benefits 	on the basis 	that Moore was 	disqualified, 	having been
discharged for misconduct. 	On September 4, 	1986, 	Moore appealed
EDD's 	denial 	of unemployment benefits. 	Hearings 	on this 	appeal
were held on November 20 	and December 23, 	1986, 	before an ALJ of
the California Unemployment 	Insurance Appeals 	Board 	(CUIAB). 	On
December 31, 	1986, 	the ALJ 	issued his decision which made 	factual
findings 	that 	Moore 	had physically 	and 	verbally 	sexually 	harassed
a 	female 	employee, 	and that Moore had previously been reprimanded
for 	similar conduct 	against 	another 	female. 	The ALJ 	found that
Moore 	had been discharged 	for 	misconduct 	and 	affirmed 	EDD's
denial 	of unemployment benefits. 	The ALJ 	concluded 	in his
decision:
The 	claimant 	[Moore] 	did 	sexually harass
a 	female 	employee. 	He continued in this
harassment 	after he 	had been told by her
that he 	should 	stop. 	He had previously
been warned 	against 	this 	kind of 	conduct
by his 	employer. 	The 	claimant's 	action
created 	an 	intimidating 	and 	offensive
working environment 	for this 	co-worker, 	and
his 	actions 	were 	in wilful 	and 	intentional
disregard of the 	legitimate 	interests 	of 	the
employer. 	The 	claimant's 	conduct did amount
to misconduct under 	section 	1256 	of 	the 	code
[Unemployment Insurance Code], 	and he is
accordingly 	disqualified 	for 	benefits.
Moore then appealed the ALJ's 	decision to the 	CUIAB 	itself.
On April 	21, 	1987, 	the CUIAB rendered its decision which adopted
the 	findings 	and 	conclusions 	of 	the ALJ 	as 	its 	own and affirmed
the ALJ's 	decision denying benefits. 	Nowhere 	in the decisions
7

of 	the ALJ or of 	the CUIAB 	are 	there 	any 	indications 	that 	Moore
made 	any 	assertion before 	EDD, 	the ALJ or the CUIAB 	that he had
been discharged because 	of 	his 	lawful 	exercise 	of 	SEERA protected
activities.
On April 	12, 	1987, 	the ALJ rendered a proposed decision
in the 	SPB proceedings, 	with 	findings 	that Moore had 	engaged
in 	offensive 	conduct 	and unlawful 	sexual 	harassment which
constituted 	cause 	for discipline under 	the 	State 	Civil 	Service
Act, 	and that:
The 	two 	complaining witnesses 	were 	credible
and 	convincing 	and 	painted 	a 	consistent
picture 	of blatantly 	offensive 	conduct 	on the
part of the appellant. 	In both cases, 	the
appellant 	made 	repeated 	attempts 	to 	interest
the women 	in a 	sexual 	relationship despite
their 	expressed 	lack of 	interest 	in 	any 	such
relationship. 	In both cases, 	the appellant
accompanied these 	unwanted 	advances 	with
physical 	conduct of the 	crudest 	form. 	Both
complaining witnesses 	felt 	humiliated,
nauseated, 	and depressed about the
appellant's actions 	towards 	them. 	Both
have 	had to 	seek professional 	counseling
as 	a 	result of 	their 	encounters with the
appellant.
The 	appellant's 	conduct 	caused 	considerable
harm to 	the public 	service 	by discrediting
the 	appellant's 	agency and by 	opening the
State of California 	to 	legal 	liability 	for
the appellant's 	actions. 	The appellant's
conduct was 	repetitive 	and did not abate
following his 	receipt 	of 	the official 	letter
of 	reprimand 	as 	evidenced by his 	conduct 	at
the district 	staff meeting on June 	11, 	1986.
During his 	testimony, 	the appellant 	showed
no 	insight 	into 	the problems 	he 	created 	for
the 	complaining witnesses 	and 	shows 	little
prospect 	of being able to 	avoid 	similar
situations 	in the future. 	Under these
circumstances, 	the official 	reprimand and the
dismissal 	from 	state 	service 	are warranted
and must be 	sustained.
The 	proposed decision then provided 	that 	the 	official 	reprimand
8

of February 28, 	1986, 	and the dismissal effective July 25, 	1986,
"are 	hereby 	sustained without 	modification."
On May 	5, 	1987, 	the SPB adopted the ALJ's 	findings 	of 	fact
and the proposed decision as 	its decision in the 	case. 	(SPB Dec.
Nos. 	20130 and 20858, May 5, 	1987.)
On May 	7, 	1987, 	a PERB Board agent dismissed the February 	4
unfair practice 	charge 	and 	"deferred" 	it to 	the 	grievance 	and
binding arbitration process. 	On June 	12, 	1987, 	Moore filed the
same 	unfair practice 	charge 	anew and 	alleged 	that 	it would be
futile to 	"defer" 	the charge because of AFSCME's 	unwillingness 	to
arbitrate the 	case. 	When Moore was 	advised that AFSCME 	had not
yet made 	a 	final decision concerning arbitration, 	Moore withdrew
the June 	12 	charge.
On August 	12, 	1987, 	Moore again filed the same unfair
practice 	charge 	and 	alleged that 	it would be 	futile 	to pursue
arbitration because AFSCME had made a 	final decision not 	to
arbitrate his case. 	On August 24, 	1987, 	a PERB Board agent
issued 	an unfair practice 	complaint 	alleging 	that 	Moore 	had 	been
dismissed on or about July 21, 	1986, 	because of his 	exercise of
employee 	rights 	guaranteed by 	SEERA.
In its 	answer to the 	complaint, 	and by motion prior to the
PERB hearing on the 	complaint, 	the 	respondent 	DPA asserted that
Moore was 	collaterally 	estopped 	by 	the 	final 	decision of 	the 	SPB
from denying that he 	engaged 	in repeated, 	willful 	and 	intentional
sexual harassment of 	female employees, 	or that his 	conduct
warranted dismissal. 	The ALJ granted DPA's 	motion and, 	on the
99

basis 	of 	collateral 	estoppel, 	barred Moore 	from relitigating 	the
issues 	decided by the SPB. 	In his proposed decision, 	the ALJ 	set
forth:
Applying 	the principles 	of 	collateral
estoppel 	set forth above, 	and in the 	interest
of 	seeking 	an 	"administrative 	accommodation"
between PERB and SPB, 	the undersigned 	[ALJ]
issued 	a 	ruling precluding 	relitigation of
those 	issues 	earlier decided by 	the 	Personnel
Board. 	Pacific Legal Foundation v. 	Brown
(1981) 29 Cal.3d 168, 200, 	172 Cal.Rptr. 	487.
Accordingly, 	Charging Party was 	not permitted
in this 	unfair practice hearing 	to relitigate
the 	issues 	concerning whether he 	actually
engaged 	in the 	offensive 	conduct described
above, 	and, 	if so, whether that conduct
constituted 	sufficient 	reason to 	terminate.
(Proposed d e c , 	pp. 	7-8.)
But, 	as 	set forth in the ALJ's proposed decision, 	since
issues 	concerning Moore's 	protected union activities 	and 	any
unlawful 	motivation on the part of 	the 	employer's 	agents 	"were
not 	even mentioned during 	the 	SPB proceeding," 	the ALJ held 	that
such 	issues were 	not barred by 	collateral 	estoppel. 	Relying
on PERB precedent 	in State 	of California 	(Department 	of
Transportation) 	(1984) 	PERB Decision No. 	459-S, 	the ALJ held that
Moore 	should have the opportunity to 	show that, 	"notwithstanding
the conclusions 	reached by the 	SPB, 	he would not have been
disciplined and/or discharged 	'but 	for' 	his 	activity."
Following four days 	of 	formal 	PERB hearings, 	transcript
preparation and briefing, 	the ALJ 	rendered a 	50-page proposed
decision which 	concluded 	that 	Moore's 	unfair practice 	charge
should be dismissed in that: 	(1) 	there was no unlawful motive
in 	the 	Department 	of 	Rehabilitation's 	decisions 	to 	reprimand 	and
10

terminate Moore, 	and 	(2) 	even assuming the evidence had 	shown
an unlawful 	motive 	and the 	"but 	for" 	burden of proof 	had 	shifted
to 	the 	respondent 	to 	show that 	it would have 	terminated Moore
regardless 	of his protected activity, 	"the 	findings 	and
conclusions 	of 	the 	SPB" 	satisfied 	such a burden and 	showed that
Moore would have 	been reprimanded 	and terminated 	even 	if 	he 	had
not 	engaged 	in protected 	activity.
PERB's 	Jurisdiction Over Civil 	Service 	Dismissals
While 	the 	collateral 	estoppel 	issue was 	raised with 	respect
to the 	SPB decision, 	neither the ALJ nor any of the parties
questioned 	PERB's 	jurisdiction to proceed 	in a matter 	involving
a 	civil 	service dismissal which was 	within the 	constitutional
jurisdiction and 	final 	authority of 	the 	State 	Personnel 	Board.
(Cal. Const., art. VII, sec. 3; Gov. Code, sec. 	19582, subd. 	(a);
Boren v. 	State Personnel Board 	(1951) 	37 Cal.2d 634, 	639; 	Ng v.
State Personnel Board (1977) 	68 Cal.App.3d 600, 	605, 	hg. 	den.;
Blake v. 	State Personnel Board 	(1972) 	25 Cal.App.3d 541, 	544, 	hg.
den.; 	Genser v. 	State Personnel Board 	(1952) 	112 Cal.App.2d 77,
88-90; 	Wylie v. 	State Personnel Board 	(1949) 	93 Cal.App.2d 838,
840-843; 	and see also Gov. 	Code, 	sec. 	19575; 	Payne v. 	State
- -
Personnel Board 	(1958) 	162 Cal.App.2d 679, 	684-685, 	hg. 	den.)
As 	the proposed decision indicates, 	the ALJ was 	aware 	(and
presumably the parties) 	of 	this 	Board's 	prior SEERA decision 	in
State of California 	(Department of Transportation). 	supra, 	PERB
Decision No. 	459-S, 	wherein this Board, 	relying on Pacific 	Legal
11

Foundation v. 	Brown 	(1981) 	29 Cal.3d 168, 	concluded that, 	in
matters 	involving 	civil 	service 	disciplinary 	actions 	which 	are
within the 	jurisdiction of the SPB, 	PERB also has 	jurisdiction.
The ALJ 	recognized 	and 	tangentially 	touched 	on 	this 	PERB-SPB
jurisdictional 	issue when he 	based his 	ruling precluding
relitigation of 	the 	issues 	already decided by the 	SPB 	not 	only
on collateral 	estoppel principles, 	but also 	"in the 	interest 	of
seeking 	an 	'administrative accommodation' 	between PERB and 	SPB,"
and cited Pacific Legal Foundation v. 	Brown 	(Brown), 	supra.
- -
Even though the 	issue of 	PERB's 	jurisdiction 	in this
matter was 	not 	raised below, 	it 	is 	incumbent upon this 	Board
to dismiss the matter if 	it is without 	jurisdiction. 	This
is 	so, 	notwithstanding that the Board may have asserted 	such
jurisdiction 	in an earlier decision.4 (Lake 	Elsinore 	School
District 	(1987) 	PERB Decision No. 	646, 	pp. 	16-20, 	and the cases
cited therein; 	California 	State University - 	San Diego 	(1989)
PERB Decision No. 	718-H, 	pp. 	8-14.)
Civil 	Service 	Disciplinary Actions 	and PLF 	v. 	Brown
Inasmuch as 	both the ALJ below and this 	Board 	in 	State
of California 	(Department of Transportation), 	supra, 	PERB
Decision No. 	459-S, 	cited and relied on Brown for their
respective 	holdings 	concerning 	PERB-SPB 	collateral 	estoppel
4PERB's Board agents and ALJs are, 	of course, 	bound
by 	applicable PERB precedent 	at 	the 	charge processing,
administrative hearing, 	and proposed decision 	stages 	of 	an
unfair practice 	proceeding.
12

and 	jurisdictional 	issues, 	it 	is 	appropriate to examine exactly
what 	the 	majority opinion 	in Brown held with respect 	to 	civil
service 	disciplinary matters.
Some eight years ago, 	in Brown, 	challenges to the
constitutionality 	of 	SEERA were 	made 	on various 	grounds.5
One challenge was:
. 	. 	. 	that the provisions of SEERA
granting 	PERB 	jurisdiction 	to 	investigate
and devise 	remedies 	for unfair practices 	are
irreconcilably 	in conflict with 	the 	State
Personnel 	Board's 	jurisdiction to 	"review
disciplinary actions" 	under article VII,
section 3, 	subdivision 	(a) 	[of the California
Constitution].
(Brown, p. 	196.)
In 	concluding 	that 	SEERA's 	unfair practice provisions 	were
not 	facially 	invalid or 	"unconstitutional 	on their 	face," 	the
majority 	opinion 	observed:
First, 	as 	the State Personnel Board itself
recognizes, 	many areas of PERB's unfair
practice 	jurisdiction do 	not 	overlap with
the 	State 	Personnel 	Board's 	"disciplinary
action" 	jurisdiction at all. 	In these areas,
obviously, 	no constitutional problems arise.
Thus, 	for example, 	if the state denies rights
which SEERA grants 	to 	employee 	organizations,
or the 	state 	fails 	to meet 	and 	confer 	in good
faith, 	PERB 	could 	clearly adjudicate unfair
practice 	charges 	against 	the 	state without
any danger of 	conflict with 	the personnel
board's 	disciplinary 	action 	jurisdiction.
Moreover, 	even in the case of employer
reprisals 	against 	an employee 	for protected
activity, 	PERB's 	unfair practice 	jurisdiction
would 	clearly pose 	no 	conflict with 	the
State Personnel 	Board's 	jurisdiction 	if 	the
reprisal 	took a 	form that 	did not 	constitute
5The 	main 	challenge 	in Brown concerned whether 	the 	setting
of 	salaries was part 	of 	the 	constitutional 	classification
authority of 	the SPB.
13

a 	"disciplinary 	action" 	reviewable by 	the
board. 	Because there is 	thus a 	substantial
area 	in which PERB's 	unfair practice
jurisdiction 	can 	unquestionably 	operate
without damage 	to 	the 	State 	Personnel 	Board's
jurisdiction, 	the provisions 	in question are
not unconstitutional 	on their 	face.
Second, 	even in those areas 	in which the
jurisdiction of 	the 	State 	Personnel 	Board
and PERB do overlap, 	familiar rules of
construction counsel 	our 	court 	to 	attempt
to harmonize the disparate procedures, 	rather
than 	simply to 	invalidate 	one 	or the 	other on
broad 	constitutional 	g r o u n d s . . . .
Because 	no 	actual 	jurisdictional 	conflict
between PERB 	and 	the 	State 	Personnel 	Board
confronts us 	in this proceeding, 	we have
no 	occasion to 	speculate 	on how 	some
hypothetical dispute 	that 	might 	be presented
for decision 	in the 	future 	should properly
be resolved. 	. 	. 	.
Accordingly, 	we conclude that the 	fact that
PERB's 	jurisdiction 	over unfair practices
may 	in 	some cases 	overlap with the 	State
Personnel 	Board's 	jurisdiction to 	review
disciplinary actions provides 	no basis 	for
finding the applicable provisions 	of 	SEERA
unconstitutional 	on their 	face,
(Brown, pp. 	196-200.)
So, 	Brown did not hold that PERB does have unfair practice
-
jurisdiction over civil 	service dismissal 	actions. 	Brown 	simply
recognized that 	certain types 	of 	unfair practice 	adverse 	actions
do 	not 	involve 	civil 	service 	"disciplinary actions" 	within SPB's
disciplinary jurisdiction and, 	thus, 	could not overlap or
conflict with 	said constitutional 	jurisdiction. 	But, 	Brown also
recognized that, 	where an alleged unfair practice does 	involve
a 	civil 	service 	"disciplinary action," 	there 	could be 	an
overlapping and 	jurisdictional 	conflict, 	and that the 	resolution
14

of 	such 	a 	constitutional problem awaited the 	future presentment
of an actual case. 	(Brown, pp. 	196-197, 	200.)
In holding that 	the unfair practice provisions 	of 	SEERA
are 	not 	facially 	in 	conflict with 	SPB's 	constitutional 	authority
and 	jurisdiction 	in 	state 	civil 	service 	disciplinary 	matters,
Brown did not 	examine 	or determine 	SPB's 	actual 	authority 	and
jurisdiction. 	In its preliminary synopsis of 	its holdings, 	the
court 	set 	forth:
Finally, 	we conclude that the provisions
of 	SEERA granting the 	Public 	Employment
Relations 	Board 	(PERB) 	initial 	jurisdiction
to 	investigate 	and 	adjudicate 	"unfair
practices" 	are not 	rendered unconstitutional
on their face by virtue 	of 	the 	State
Personnel 	Board's 	authority, 	under article
VII, 	section 3, 	subdivision (a), to "review
disciplinary actions" 	against 	civil 	service
employees. 	As we point out, 	whatever the
scope of 	the 	State 	Personnel 	Board's
authority with 	respect 	to 	disciplinary
actions 	there 	is 	a 	substantial 	area 	in which
PERB's 	unfair practice 	jurisdiction does 	not
overlap with 	the 	State 	Personnel 	Board's
jurisdiction at all. 	Accordingly, 	for that
reason alone, 	the 	statutory provision could
not properly be 	invalidated on 	its 	face 	in
this proceeding,
(Brown. p. 	175; 	emphasis added.)
Brown pointed 	out various 	unfair practice matters 	that
do not 	involve 	civil 	service discipline 	(denial 	of 	employee
organization rights, 	bad faith bargaining, 	employer reprisals 	not
involving 	civil 	service discipline) 	which cannot 	conflict with or
damage SPB's disciplinary jurisdiction 	(Brown, 	pp. 	196-197) 	and
that,
(b)ecause 	no actual 	jurisdictional 	conflict
between PERB and 	the 	State 	Personnel 	Board
confronts us 	in this proceeding, 	we have no
15

occasion to 	speculate 	on how 	some
hypothetical 	dispute 	that might 	be presented
for decision 	in the 	future 	should properly be
resolved.
(29 Cal.3d, p. 	200.)
We 	now leave 	Brown and 	come back to 	the 	future of 	the
instant case: 	a 	civil 	service dismissal, 	a matter within the
very 	core of 	SPB's 	constitutional 	authority and 	jurisdiction.
What 	then 	is 	the 	actual 	scope and 	effect 	of 	SPB's 	disciplinary
authority and 	jurisdiction? 	What 	authority or 	jurisdiction, 	if
any, 	does 	PERB have 	over SPB 	and/or to vitiate or nullify an SPB
disciplinary 	decision?
-
The 	SPB's 	Disciplinary Authority 	and 	Jurisdiction
In 	1934, 	the people of the State of California, 	by an
initiative measure, 	adopted 	former article XXIV 	(now art. 	VII)
of 	the California Constitution, 	placing the State Civil 	Service
System 	into 	the 	Constitution 	and 	constitutionally 	establishing
the 	State 	Personnel 	Board as 	the 	tribunal 	to administer and
enforce the 	civil 	service 	statutes, 	including disciplinary
matters. 	(Cal. Const., art. VII 	[former art. XXIV]; Nelson v.
Dean 	(1946) 	27 Cal.2d 873, 	876; 	Boren v. 	State Personnel Board.
supra. 	37 Cal.2d 634, 	639.)
Our 	courts 	have 	held 	that 	these 	constitutional provisions
vest 	the 	final 	authority 	as 	to dismissal 	and other disciplinary
actions 	in the 	SPB 	(as 	opposed to the 	employee's 	"appointing
power" 	or other entity). 	(Boren v. 	State Personnel Board, 	supra.
37 Cal.2d 634, 	639; Nelson v. 	Dean, 	supra. 	27 Cal.2d 873, 	876;
16

- -
Ferdig v. 	State Personnel Board 	(1969) 	71 Cal.2d 96, 	105-106;
Ng v. 	State Personnel Board, 	supra, 	68 Cal.App.3d 600, 	605,
hg. 	den.; 	Payne v. 	State Personnel Board, 	supra, 	162 Cal.App.2d
679, 	684-685, hg. 	den.; Wylie v. 	State Personnel Board, 	supra.
93 Cal.App.2d 838, 	843; 	Leeds v. 	Gray 	(1952) 	109 Cal.App.2d 874,
880, 	hg. 	den.; 	and see California State Employees' Assn. 	v.
Williams 	(1970) 	7 Cal.App.3d 390, 	394, hg. 	den.)
Likewise, 	the 	State Civil 	Service Act provisions 	enacted
by the 	Legislature 	to 	implement 	and 	facilitate 	article VII 	(Gov.
Code, 	sec. 	18500 et seq.; 	Byrne v. 	State Personnel Board 	(1960)
179 Cal.App.2d 576, 	582; 	Genser v. 	State Personnel Board, 	supra.
112 Cal.App.2d 77, 	78; 	Valenzuela v. 	State of California 	(1987)
194 Cal.App.3d 916, 	920; 	Kemmerer v. 	County of Fresno 	(1988)
200 	Cal.App.3d 	1426, 	1433) 	establish that it is 	the SPB which has
the 	authority 	to determine 	if 	cause 	for 	civil 	service discipline
exists and, 	if 	so, 	the appropriate degree of discipline, 	if any,
to be 	imposed 	(Ramirez 	v. 	State 	Personnel 	Board 	(1988)
204 Cal.App.3d 288, 	294; 	Genser v. 	State Personnel Board, 	supra,
112 Cal.App.2d 77, 	88-90; Gov. Code, 	secs. 	18703 and 19582).
That 	the 	actual 	disciplinary 	authority 	and 	discretion 	rests
with 	SPB--and 	not with 	an 	employee's 	"appointing power"--is 	also
confirmed by the 	courts' 	actions 	in cases where 	civil 	service
disciplinary matters 	are 	being 	remanded 	for 	the 	redetermination
of the discipline, 	if any, 	to be imposed. 	The courts remand such
matters 	to the SPB 	for its 	redetermination of 	the discipline,
not 	to 	the 	employee's 	"appointing power." 	(Shepherd v. 	State
-
-
17

Personnel Board 	(1957) 	48 Cal.2d 41, 	51; 	Blake v. 	State Personnel
Board f supra, 2 5 Cal.App.3d 541, 5 54, hg. den.; Catricala v.
State Personnel Board 	(1974) 	43 Cal.App.3d 642, 	644; 	Walker v.
State Personnel Board (1971) 	16 Cal.App.3d 550, 	556, 	hg. 	den.;
Martin v. 	State Personnel Board 	(1982) 	132 Cal.App.3d 460, 	465-
466; 	Yancey v. 	State Personnel Board 	(1985) 	167 Cal.App.3d 478,
487; 	and see Nelson v. 	Dean, 	supra, 	27 Cal.2d 873, 	883.)
As 	succinctly 	stated by 	the California 	Supreme 	Court 	in
Boren v. 	State Personnel Board, 	supra. 	37 Cal.2d 634, 	639,
emphasis 	added:
. 	. 	. 	To obtain responsible control over
state 	employment 	the 	civil 	service 	system was
established by the people. 	(Const., 	art XXIV
[now art. 	VII].) 	The power to discipline
employees 	was 	largely 	transferred 	from
various 	officials 	and departments 	to the
State Personnel 	Board. 	It was 	contemplated,
furthermore, 	that civil 	service 	should be
under the board's 	supervision, 	to the end
that 	all personnel matters 	be 	expertly and
uniformly administered. 	There 	is 	no
unfairness, 	therefore, 	in the fact that
plaintiff's 	rights 	have been decided 	in the
first 	instance by the 	same public 	agency
with which he dealt 	at the 	time of his
appointment. 	The position of 	the State
Personnel 	Board 	in this 	respect 	is 	not unlike
that 	of 	the Board of Medical 	Examiners 	and
other 	licensing 	agencies 	that 	supervise 	the
granting of licenses, 	the 	scope of the
activities permitted thereunder, 	and, 	when
necessary, 	the disciplining of 	licensees.
[Citations.] 	. 	. 	. 	and plaintiff is presumed
to have known when he 	joined the 	civil
service 	that the 	State Personnel 	Board 	is
charged 	by 	law with 	deciding 	all 	questions
o- f dismissal. 	(Const., art. XXIV; Gov. 	Code,
sec. 	19570 et seq.) 	. 	. 	.
18

State 	Civil 	Service 	Disciplinary 	Proceedings
Under the 	State Civil 	Service Act, 	disciplinary action
against 	a 	civil 	service 	employee may be 	initiated 	in one 	of 	two
ways:
(1) 	by the 	employee's 	"appointing power"6--or the
appointing 	power's 	authorized 	representative—serving 	on 	the
employee 	a written notice 	of 	the proposed discipline based 	on
one 	or more of 	the 	causes 	for discipline 	as 	specified 	in the
State Civil 	Service Act, 	with the written notice being 	served on
the 	employee 	at 	least 	five 	calendar days prior to the 	intended
effective date of the proposed action 	(Gov. 	code, 	sec. 	19574;
SPB Reg. 	617 ); or
(2) 	by 	"any person,"8 with the 	consent of 	either the 	SPB
or the 	appointing power, 	filing charges with the 	SPB 	requesting
that disciplinary action be 	taken by the 	SPB against 	a 	civil
- -
66 "'Appointing power' 	means 	a person or group having
authority to make appointments 	to positions 	in the 	State 	civil
service." 	(Gov. 	Code, 	sec. 	18524.) 	"'Appointment' 	means the
offer to 	and acceptance by a person of 	a position 	in the 	State
civil 	service 	in accordance with this part 	[State Civil 	Service
Act]." 	(Gov. 	Code, 	sec. 	18525.) 	"'Employee' means a person
legally holding a position 	in the 	State 	civil 	service." 	(Gov.
Code, 	sec. 	18526.) 	In the instant case, 	the charging party's
"appointing power" 	was 	the director of 	the Department 	of
Rehabilitation.
7SPB 	regulations 	are 	codified 	in title 	2 	of 	the California
Administrative Code.
8"Any person" 	includes: 	(1) 	a private citizen, 	(2) 	a fellow
employee, 	(3) 	an appointing power who did not want proceed under
Government Code 	section 	19574, 	and 	(4) 	the SPB itself. 	(Gov.
Code, 	sec. 	19583.5; 	SPB Reg. 	62; 	Power v. 	State Personnel Board
(1973) 	35 Cal.App.3d 274, 	276; 	West Coast Poultry Co. 	v. 	Glasner
(1965) 	231 Cal.App.2d 747, 	753, hg. den.)
19

service 	employee 	for one or more of the 	causes 	for discipline
as 	specified in the State Civil Service Act 	(Gov. 	Code, 	sec.
19583.5; 	SPB Reg. 	62; 	Power v. 	State Personnel Board, 	supra,
35 Cal.App.3d 274, 276).
The 	most 	common way that 	disciplinary proceedings 	are
initiated 	is 	that 	of 	the 	"appointing power" 	serving the 	employee
with 	a written notice of 	the proposed adverse 	action. 	Such 	a
written notice 	must be 	served on the 	employee 	at 	least 	five
calendar days 	prior to 	the proposed 	effective date 	of 	the 	action
and:
. 	. 	. 	shall include: 	(a) 	a statement of
the nature of the adverse action; 	(b) 	the
effective date of the action; 	(c) 	a 	statement
of 	the reasons 	therefor 	in ordinary 	language;
(d) 	a 	statement advising the employee of the
right 	to 	answer the 	notice 	orally or 	in
writing; 	and 	(e) 	a statement advising the
employee 	of the time within which an appeal
must be filed. 	. 	. 	.
(Gov. 	Code, 	sec. 	19574; 	SPB Reg. 	61.)
This 	procedure 	is 	further 	implemented by SPB Regulation 	61, 	which
prescribes:
61. 	Right to Respond to Charges 	Prior to
Punitive Action
At 	least 	five 	calendar days 	prior to 	the
effective date 	of 	any punitive 	action against
an employee with permanent 	civil 	service
status, 	the appointing power or any person
authorized by 	it 	shall 	give 	the 	employee
written notice of the proposed action, 	the
reasons 	for such action, 	a copy of the
charges 	and material 	upon which 	the 	action
is 	based, 	and the right to respond either
verbally or in writing, 	to the authority
proposing 	the 	action prior to 	its 	effective
date.
(Cal. Admin. Code, tit. 2, sec. 	61.)
20

The 	employee 	may thus 	respond 	in writing 	to 	the 	notice
and/or have 	a 	"Skelly hearing" 	with 	the 	appointing power
authority proposing 	the 	discipline prior 	to 	the 	effective date
of 	the proposed action, 	and the 	appointing power may rescind 	or
modify the proposed action. 	(Skelly v. 	State Personnel 	Board.
supra. 	15 Cal.3d 194, 	215; 	SPB Reg. 	61.)
If 	the 	employee does 	not 	choose 	to 	respond or have a 	"Skelly
hearing," 	and/or 	if 	following any 	such response or hearing the
appointing power does 	not withdraw or modify the proposed 	action,
the appointing power must 	file 	a 	copy of 	the notice with the 	SPB.
(Gov. 	Code, 	sec. 	19574.) 	Once the matter is filed and pending
before 	the 	SPB, 	the 	appointing power and the employee 	may not
settle or adjust the matter without SPB approval. 	(Gov. 	Code,
sec. 	18681.9)
Regardless 	of whether the 	employee 	chooses 	to respond or
have 	a 	"Skelly hearing," 	the 	employee has 	20 	calendar days 	from
the 	service of 	the notice 	to 	file 	a written answer to 	the 	notice
9Once 	an employee has 	answered the 	notice 	and the matter 	is
before 	SPB, 	the appointing power and the 	employee may not 	settle
or adjust 	the matter without board approval. 	Government 	Code
section 	18681 prescribes 	(emphasis added):
Whenever 	any matter 	is 	pending before 	the
Personnel 	Board 	involving 	a dispute 	between
one 	or more 	employees 	and 	an appointing power
and the parties 	to 	such dispute agree upon a
settlement or adjustment thereof, 	the terms
of 	such 	settlement 	or adjustment may be
submitted to the board, 	and if approved by
the board, 	the disposition of the matter in
accordance with the 	terms 	of 	such adjustment
or 	settlement 	shall 	become 	final 	and binding
on the parties.
21

with the SPB, ° ". 	. 	. 	which answer shall be deemed to be a
denial 	of 	all 	the allegations 	of 	the notice 	of 	adverse 	action not
expressly admitted and a 	request 	for a hearing 	or 	investigation
as provided in this article 	[art. 	3, 	Disciplinary Proceedings]."
(Gov. 	Code, 	sec. 	19575.)11
Then, 	in addition to the notice, 	information and
materials 	the 	employee has 	already 	received 	in 	connection with
the preliminary written notice 	and/or the 	"Skelly" 	rights 	(Gov.
Code, 	sec. 	19574; 	SPB Reg. 	61; 	Skelly v. 	State Personnel Board.
supra. 	15 Cal.3d 194, 	215), 	comprehensive prehearing discovery
rights 	are 	afforded the 	"noticed" 	employee by Government Code
section 	19574.1:
10If 	the 	employee does 	not 	file 	a written answer to
the notice, 	the discipline becomes 	final without 	further SPB
proceedings. 	(See Payne v. 	State Personnel Board, 	supra,
162 Cal.App.2d 679, 	684-685, hg. 	den.)
11A state 	civil 	service 	employee may raise before 	the 	SPB
his 	contention that the 	"appointing power": 	(1) 	did not 	initiate
the disciplinary action for cause, 	but, 	rather, 	as a reprisal
for the employee's 	exercise of SEERA rights; 	and/or 	(2) 	that
the proposed 	level 	or degree 	of 	discipline was 	selected by 	the
appointing power because 	of 	the 	employee's 	exercise 	of 	SEERA
rights and, 	accordingly, 	is discriminatory, 	disparate or
excessive. 	(Gov. Code, 	sec. 	18500, 	subds. 	(c)(4) and (5); 	and
see Robinson v. 	State Personnel Board 	(1979) 	97 Cal.App.3d 	994,
998, 	1003-1004, hg. 	den.; 	Constancio v. 	State Personnel Board
(1986) 	179 Cal.App.3d 980, 	988; 	Goggin v. 	State Personnel Board
(1984) 	156 Cal.App.3d 96, 	107, hg. 	den.)
Should 	the 	SPB determine 	that 	the proposed discipline 	is
discriminatory, 	disparate or excessive, 	the SPB may impose an
appropriate 	lesser degree of discipline, 	or no discipline at all.
(Gov. 	Code, 	secs. 	18500 and 19582; 	Ramirez v. 	State Personnel
Board. 	supra, 	204 Cal.App.3d 288, 	294; 	Genser v. 	State Personnel
Board, 	supra. 	112 Cal.App.2d 77, 	88-89; 	Wylie v. 	State Personnel
Board, 	supra, 	93 Cal.App.2d 838, 	841.)
22

(a) 	An employee who has 	been 	served with a
notice of adverse action, 	or a representative
designated by the 	employee, 	shall have the
right 	to 	inspect any documents 	in the
possession of, 	or under the control of,
the 	appointing power which 	are 	relevant 	to
the 	adverse 	action taken or which would
constitute 	"relevant 	evidence" 	as defined
in Section 210 	of the Evidence Code. 	The
employee, 	or the designated representative,
shall 	also have the 	right to 	interview other
employees 	having knowledge 	of 	the 	acts 	or
omissions 	upon which 	the 	adverse 	action was
based. 	Interviews 	of other employees 	and
inspection of documents 	shall be 	at times
and places 	reasonable 	for the 	employee 	and
for the 	appointing power.
(b) 	The appointing power 	shall make all
reasonable 	efforts 	necessary 	to 	assure
the 	cooperation of 	any 	other 	employees
interviewed pursuant 	to 	this 	section.
There 	are 	further 	extensive 	statutory provisions
affording an employee the 	right 	to 	first petition the 	SPB
to 	compel discovery 	if 	there 	is 	a 	failure or refusal by the
appointing power 	to 	comply with 	Government 	Code 	section 	19574.1
discovery, 	and, 	if the petition is not granted by the SPB, 	the
employee 	may then file 	a petition to 	compel discovery 	in the
superior court. 	(Gov. 	Code, 	sec. 	19574.2.) 	In addition, 	an
employee 	may 	obtain 	evidence 	for the 	hearing by deposing 	others
(Gov. 	Code, 	sec. 	19580.)12
After prehearing discovery is 	completed, 	a 	formal
adjudicatory hearing 	is 	held before 	an ALJ 	of 	the 	SPB. 	The ALJ
12It 	is 	noteworthy that 	such 	extensive prehearing
discovery 	and 	other 	rights 	afforded 	to 	a 	civil 	service 	employee,
in connection with a 	civil 	service disciplinary action, 	are 	not
afforded 	nor available 	to 	a 	charging party 	in 	an unfair practice
proceeding before 	PERB.
23

then 	submits 	a proposed decision 	containing 	findings 	of 	fact 	and
a designated discipline, 	if any, 	to the SPB itself. 	The SPB may
then adopt 	the proposed decision 	in its 	entirety as 	its 	decision,
-
or 	it may reduce the discipline 	set 	forth 	in the proposed
decision and 	adopt 	the balance 	of 	the proposed decision as 	its
decision. 	(Gov. 	Code, 	secs. 	19578 and 	19582.) 	Should the SPB
not adopt the proposed decision, 	it must decide the case 	itself
upon the 	record, 	including the 	transcript of 	the hearing 	and 	the
exhibits, 	and may take additional 	evidence 	itself 	or assign the
case 	to 	the 	same or a different ALJ 	to take 	additional 	evidence.
The 	SPB 	must 	also 	afford 	the parties 	the 	opportunity 	to present
oral 	and written argument to 	it before deciding the 	case 	itself.
(Gov. Code, 	sec. 	19582.)
"In arriving at a decision, 	or a proposed decision," 	the
SPB 	or 	its ALJ may 	consider 	any prior 	suspension 	or 	suspensions
of 	the 	employee under any appointing power, 	or any other prior
disciplinary 	proceedings 	under 	the 	disciplinary 	proceedings
article of the State Civil Service Act. 	(Gov. 	Code, 	sec. 	19582,
subd. 	(d).)
-
The 	SPB itself must render 	(or adopt) 	a decision 	"which 	in
its 	[SPB] 	judgment is just and proper." 	(Gov. 	Code, 	sec. 	19582,
subd. 	(a), emphasis added; Cal. Const., art. VII, sec. 3;
Wylie v. 	State Personnel Board, 	supra, 	93 Cal.App.2d 838, 	841.)
If discipline 	is 	imposed by the SPB's decision, 	an employee
may seek a rehearing before the SPB 	(Gov. 	Code, 	secs. 	19586-
19587) 	and/or may 	seek 	judicial 	review of 	the SPB decision by
24

way of 	a writ of 	review 	(certiorari)1313 or administrative mandamus
(Boren v. 	State Personnel Board, 	supra. 	37 Cal.2d 634, 	637-638;
Code of Civil Procedure, secs. 	1067-1070, 	1094.5)14.
Should 	a reviewing 	court determine 	that one 	or more 	of
the 	grounds 	for 	imposing the 	discipline 	is 	not 	supported by
the record, 	and/or that the SPB has 	abused 	its discretion as
to the degree of discipline it 	imposed, 	the 	case 	is 	remanded
to 	the 	State 	Personnel 	Board--not to 	the 	appointing power--
to redetermine the discipline to be imposed, 	if any, 	on the
employee. 	(Shepherd v. 	State Personnel Board, 	supra, 	48 Cal.2d
41, 	51; 	Blake v. 	State Personnel Board, 	supra, 	25 Cal.App.3d
541, 	554, hg. den.; Catricala v. 	State Personnel Board, 	supra,
43 Cal.App.3d 642, 	644; 	Walker v. 	State Personnel Board, 	supra.
16 Cal.App.3d 550, 	556, 	hg. 	den.; 	Martin v. 	State Personnel
Board, 	supra, 	132 Cal.App.3d 460, 	465-466; 	Yancey v. 	State
- -.
Personnel Board, 	supra, 	167 Cal.App. 	3d 478, 	487; 	and see
-
Nelson v. 	Dean, 	supra. 	27 Cal.2d 873, 	883.)
Unless 	the 	courts 	subsequently annul 	or 	set 	aside 	the 	SPB
decision, 	certain legal 	and 	jurisdictional 	effects 	attend a
dismissal 	imposed by the SPB.
13The 	SPB 	is 	a 	"constitutional 	agency" 	invested with
judicial powers by the State Constitution. 	(Shepherd v. 	State
Personnel Board, 	supra. 	48 Cal.2d 41, 	46-47; 	Ferdig v. 	State
Personnel Board, 	supra. 	71 Cal.2d 96, 	105; 	Flowers v. 	State
Personnel Board 	(1985) 	174 Cal.App.3d 753, 	758, 	hg. 	den.)
14In the 	instant 	case, 	the record 	shows 	that Moore 	sought
and had 	judicial 	review of 	the 	SPB 	decision dismissing him 	from
his 	civil 	service position. 	The 	court upheld 	the 	SPB's 	dismissal
and denied Moore 	a peremptory writ.
25

Once 	the 	SPB has 	rendered 	its 	decision dismissing an
employee 	from his 	or her civil 	service position, 	the 	SPB must
enter the dismissal 	upon 	its 	minutes 	and the official 	roster
(Gov. 	Code, 	sec. 	19583), 	and under the mandatory provisions of
Government Code 	section 	19583.1 	(emphasis 	added):
Dismissal 	of 	an employee 	from the 	service
shall. 	unless 	otherwise ordered by the board
[SPB]:
(a) 	Constitutes 	a dismissal as of the 	same
date 	from any 	and 	all positions which 	the
employee may hold 	in the 	state 	civil 	service.
(b) 	Result in the automatic removal of the
employee's 	name 	from any 	and all 	employment
lists 	on which 	it may appear.
(c) 	Terminate the 	salary of the 	employee as
of 	the date of dismissal 	except that he 	shall
be paid any unpaid 	salary, 	and paid 	for any
and 	all 	unused 	and 	accumulated 	vacation 	and
any 	and 	all 	accumulated 	compensating 	time 	off
or overtime to his 	credit as 	of the date of
dismissal.
Thus, 	a dismissal by the SPB not only effects 	a dismissal 	from
any and all 	civil 	service positions 	the employee may hold, 	but
it 	also 	automatically removes 	the 	employee 	from all 	civil 	service
employment lists,15 	and, 	absent the annulment of the SPB's
decision by a 	court on review, 	the 	SPB 	is without 	jurisdiction
15
15Government Code 	section 	18537 	of the 	State Civil 	Service
Act prescribes:
"Employment 	list" 	means 	preferred 	limited-
term list, 	limited-term list, 	eligible list,
departmental eligible 	list, 	subdivisional
promotional 	list, 	departmental promotional
list, 	multidepartmental promotional list,
servicewide promotional 	list, 	departmental
reemployment list, 	subdivisional 	reemployment
list and general 	reemployment 	list.
26

to 	restore a dismissed employee's 	name 	to the civil 	service
employment lists. 	(See 20 Ops.Cal.Atty.Gen. 	251, 	255 	(1952).)16
Also--and of 	major 	significance with 	respect 	to 	PERB 	cases
of 	the 	instant type 	involving an 	"appointing power" 	(not 	the
SPB)--an 	SPB 	dismissal 	precludes 	reinstatement 	by 	an 	appointing
power of such a dismissed employee. 	(Gov. 	Code, 	secs. 	19140-
19141.)
From the 	foregoing it is 	evident that, 	in state civil
service dismissal 	cases, 	while an 	"appointing power" 	may 	initiate
and tentatively 	impose a 	civil 	service dismissal, 	it 	is 	not the
appointing power but the 	State 	Personnel 	Board which 	is 	the
actual 	entity 	that 	is 	constitutionally 	and 	statutorily vested
with 	the 	jurisdiction and 	final 	authority 	to determine 	not 	only
if 	there 	is 	cause 	for discipline under the State Civil 	Service
Act, but also what discipline, 	if any, 	±±, (SPB) will impose under
the State Civil Service Act.17
Moreover, 	when SPB has 	determined that cause 	for civil
service 	discipline 	exists 	and 	that 	the 	appropriate 	discipline
in the case 	is dismissal, 	the resultant effect of 	said dismissal
16	16 In addition, 	should a dismissed employee attempt 	to regain
eligibility 	for 	reappointment 	from 	an 	eligible 	list 	through
examination and qualifying anew, 	the SPB may refuse to: 	(1)
examine the person; 	(2) 	declare the person eligible; 	or 	(3)
certify the person for appointment. 	(Gov. 	Code, 	sec. 	18935.)
17 Hence, in the instant case, the final disciplinary
action of dismissal 	as 	to Moore was 	not by the Director of 	the
Department of 	Rehabilitation, 	nor by the respondent Department of
Personnel Administration, 	it was by the State Personnel 	Board, 	an
entity which was 	not 	a party 	to 	this 	unfair practice proceeding
and 	an entity 	over which PERB does 	not have 	jurisdiction.
27

by the 	SPB—absent 	a 	judicial 	reversal 	of 	the 	SPB decision--is
an 	irreversible dismissal 	of the 	employee 	from his 	or her 	civil
service position and the cessation, 	by operation of 	law, 	of
the 	dismissed 	employee's 	eligibility 	for 	reinstatement 	or
reappointment 	by 	any 	appointing power.
Accordingly, 	with regard to 	state 	civil 	service dismissal
cases, 	PERB has 	no 	jurisdiction over the SPB, 	which makes 	the
final decision to impose dismissal. 	Moreover, 	with respect
to the 	"appointing powers" 	(herein, 	the Department of
Rehabilitation), 	over which PERB does have jurisdiction, 	such
parties 	have no authority or power to reinstate, 	reappoint or
restore 	such 	a dismissed 	employee 	should PERB 	attempt 	to 	order
them to do 	so. 	PERB 	is 	simply without 	"effective 	jurisdiction"
to 	render any 	kind 	of meaningful 	remedy 	to 	such 	a dismissed 	state
civil service employee, 	and, 	hence, 	is without jurisdiction.
(Abelleira v. 	District Court of Appeal 	(1941) 	17 Cal.2d 280, 	288,
290; 	Corona Unified Hospital District v. 	Superior Court 	(1964)
61 Cal.2d 846, 	852; 	Fortenberry v. 	Superior Court 	(1940)
16 Cal.2d 405, 	407-408.)
In 	summary, 	the charge and complaint 	in this 	case 	should
have been dismissed because 	of 	PERB's 	lack of 	effective
jurisdiction 	in a matter 	involving a 	state 	civil 	service
dismissal 	and 	the 	State 	Personnel 	Board.18
18With respect 	thereto, 	this 	Board 	should not be 	expending
its 	and the parties' 	time, 	efforts 	and resources 	on a matter over
which 	it does 	not have effective 	jurisdiction.
28

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JAMES ALIN MOORE,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
) 	Unfair 	Practice
Case No. 	SF-CE-85-S
PROPOSED DECISION
(7/28/88)
)
)
)
)
)
)
)
)
Appearances: 	James Alin Moore, 	on his own behalf;
Kenneth R. 	Hulse, 	Labor Relations Counsel, 	for the State of
California 	(Department 	of 	Personnel Administration).
Before 	Fred 	D'Orazio, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	unfair 	practice 	charge was 	filed 	by James 	Alin Moore
(hereafter Moore or Charging 	Party) 	against 	the 	State of
California 	(Department 	of 	Personnel Administration) 	(hereafter
Respondent) 	on August 	12, 	1987. 	The charge alleges 	that the
Charging 	Party was 	disciplined 	and 	eventually 	terminated
because 	he 	engaged 	in conduct 	protected by the Ralph C. 	Dills
Act 	(hereafter Act). 	Respondent's conduct, 	it 	is 	alleged in
the charge, 	violated sections 3519(a) 	and 	(b) 	of the Act.
1l
1 The 	Act 	is 	codified 	at Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
in this 	decision are to the Government Code. 	Sections 	3519(a)
and 	(b) 	provide that 	it 	shall 	be unlawful 	for 	the 	State 	to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or 	threaten to
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
)

discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
The 	Public 	Employment 	Relations 	Board 	(hereafter 	PERB 	or
Board) 	General Counsel 	issued a complaint on August 24, 	1987.
Respondent 	filed 	its 	answer on September 	11, 	1987, 	denying 	that
it 	violated 	the Act 	and 	offering 	several 	affirmative 	defenses.
Denials 	and defenses will 	be dealt with below 	as 	appropriate.
The 	settlement 	conference on September 	24, 	1987 did not. . . .
resolve 	the dispute. 	A 	formal 	hearing was 	conducted 	by the
undersigned 	in San Francisco on March 21, 	22, 	and 23 	and on
April 	11, 	1988. 	The post-hearing 	briefing 	schedule was
completed on June 20, 	1988.
FINDINGS 	OF 	FACT
TH THE SEXUAL HARASSMENT CASES AND THE STATE PERSONNEL BOARD
PROCEEDING
James Alin Moore was 	employed 	in 	the Department 	of
Rehabilitation's 	(hereafter Department) 	Santa Cruz office 	as 	a
vocational 	rehabilitation counselor. 	In 	that 	position he 	- 1 4
counseled persons 	with 	physical 	and mental 	disabilities 	who 	.. . .
experienced 	difficulty 	obtaining 	suitable 	employment.
Based on two 	unrelated 	sexual 	harassment 	complaints, 	Moore
received 	a 	formal 	reprimand on February 20, 	1986 	and was
22

dismissed effective July 15, 	1986. 	He unsuccessfully appealed
both adverse 	actions 	to 	the State Personnel Board 	(SPB). 	A
capsulized 	version of 	the 	conduct which 	led 	to 	these 	adverse
actions is as follows.2
The 	formal 	reprimand 	accused Moore 	of 	sexually 	harassing
Celia 	Cardenas, 	a 	Santa 	Cruz 	County employee whom Moore worked
with on behalf 	of 	a 	client. 	In addition to offensive comments,
Moore engaged 	in unwelcome 	touching 	of 	Cardenas, 	and on one
occasion while 	in 	a 	car 	during work hours 	he placed 	his 	hand 	on
her 	thigh 	and held 	it 	there, 	pressing down. 	This 	conduct was
reported to Moore's 	supervisor, 	Kenneth Miller. 	The
investigation which 	followed will 	be discussed 	in detail 	below.
Moore was 	later 	discharged 	for 	engaging 	in 	similar 	conduct
with Karen Cooper, 	also 	a 	vocational 	rehabilitation 	counselor
in the 	Santa Cruz 	office. 	In addition to numerous 	sexually
suggestive comments, 	there were 	several 	incidents. 	Cooper came
to work on Halloween dressed 	as 	a Hell's Angel. 	At 	one point
during 	the day when Moore 	and Cooper were 	alone 	he 	told 	her 	she
looked great, 	reached his 	hands 	inside her 	jacket 	and 	felt 	her
breasts. 	Moore then placed his 	hands 	on Cooper's 	hips 	and
tried 	to 	pull 	her 	close. 	Later 	that 	same day Moore 	placed 	his
hand 	on 	Cooper's 	pelvic 	area 	as 	they walked 	along.
2 This 	brief 	description of 	the 	events which 	led 	to
Moore's 	initial 	discipline 	and 	eventual 	dismissal 	is 	taken 	from
the 	decision of 	the 	State 	Personnel 	Board 	administrative 	law
judge 	(ALJ), 	rendered after 	a hearing on both issues.
33

A 	few days 	later 	Cooper 	agreed 	to 	have 	lunch with Moore
with the 	intention of 	confronting 	him about 	his behavior. 	She
did so, 	without 	apparent success, 	for 	as 	the 	lunch ended Moore
leaned 	across 	the 	table, 	grabbed 	her 	forearms 	and 	kissed 	her 	on
the mouth.
During 	another 	incident 	in the mailroom, 	Moore 	pulled
Cooper close, 	gave her 	a hug 	and uttered 	a 	sexual 	innuendo. 	A
similar 	incident 	occurred 	after 	a 	District 	staff 	meeting. 	As
the meeting 	ended, 	Cooper 	hugged 	a 	friend while 	saying
goodbye. 	Moore 	saw this 	and 	asked 	for 	a 	hug. 	When Cooper
refused Moore 	pulled her 	close, 	draped 	his 	hands 	over 	her
buttocks 	and 	bent 	her 	over 	backwards 	while 	hugging 	her 	tightly
Cooper 	eventually filed 	a 	sexual 	harassment 	complaint
against Moore. 	The 	investigation of 	the complaint 	is more
fully 	discussed 	below.
Moore 	appealed 	the 	letter 	of 	reprimand 	and 	the discharge 	to
the 	State Personnel 	Board. 	A hearing was 	held 	on October 	24,
November 21, 	and December 	12, 	1986 before a State Personnel
Board 	administrative 	law 	judge.
The 	decision 	of 	the 	administrative 	law 	judge was 	issued 	on
April 21, 	1986. 	With respect to the Cardenas case, 	the
administrative 	law 	judge 	concluded 	that 	Moore's 	"offensive
conduct 	. 	. 	. 	constituted discourteous treatment of the public
or 	other 	employees 	and was 	a 	failure 	of 	good 	behavior 	during
duty hours 	of 	such 	a 	nature 	that 	it 	caused discredit 	to 	the
Department of 	Rehabilitation 	and to 	[Moore's] 	employment 	as 	a
4

Vocational 	Rehabilitation 	Counselor."
With 	respect to 	the Cooper 	case, 	the 	administrative 	law
judge 	concluded 	that Moore's 	conduct 	"constituted 	discourteous
treatment of 	the public or other employees, 	was 	a 	failure of
good behavior 	either during 	or 	outside 	of 	duty hours 	of 	such 	a
nature 	that 	it 	caused discredit 	to 	the Department 	of
Rehabilitation and 	to 	[Moore's] 	employment 	as 	a Vocational
Rehabilitation Counselor, 	and 	constituted 	unlawful 	sexual
harassment 	against 	another 	employee while 	acting 	in 	the
capacity of 	a 	State employee."
In reaching 	these conclusions, 	the 	administrative 	law judge
found 	the complaining witnesses 	credible. 	He 	found 	they
convincingly painted 	a 	"consistent 	picture 	of 	blatantly
offensive conduct" 	on the part of Moore. 	"In both cases," 	the
ALJ concluded, 	Moore 	"made 	repeated 	attempts 	to 	interest 	the
women 	in 	a 	sexual 	relationship 	despite 	their 	expressed 	lack of
interest 	in 	any 	such 	relationship." 	The 	testimony of 	Moore
contesting 	the 	charges 	was 	summarily 	rejected 	by 	the 	Personnel
Board's 	ALJ.
The State Personnel Board, 	on May 5, 	1987, 	adopted the
findings 	and conclusions 	of 	the 	administrative 	law judge, 	and
on July 21, 	1987 denied 	a petition for 	rehearing. 	As 	of 	the
close of 	the hearing 	in this case, 	the Santa Cruz County
Superior Court, 	Case Number 	104046, 	had denied Moore's Petition
For Writ Of Mandate, 	Prohibition Or Other Appropriate Writ.
55

COLLATERAL 	ESTOPPEL
Prior 	to 	the 	hearing 	in 	this 	matter 	the Respondent 	filed 	a
motion 	seeking 	application 	of 	the 	doctrine 	of 	collateral
estoppel 	to 	preclude 	relitigation 	of 	issues 	already determined
by the 	State Personnel 	Board. 3 Respondent, 	in 	its motion,
relied 	on 	the 	record 	in 	the 	SPB 	proceeding which 	was 	entered 	in
evidence 	in the PERB hearing.
As was 	pointed 	out 	in 	State 	of 	California 	(Department 	of
Developmental Services) 	(1987) 	PERB Decision No. 	619-S, 	the
doctrine of 	collateral 	estoppel 	obviates 	the 	need 	to 	relitigate
issues 	already adjudicated 	in 	a 	prior 	action. 	The purpose of
the 	doctrine is 	to promote 	judicial 	economy by minimizing . . . .' ; $
repetitive 	litigation, 	to 	prevent 	inconsistent 	judgments which
undermine 	the 	integrity of 	the judicial 	system, 	and 	to 	protect
against vexatious 	litigation. 	Lockwood v. 	Superior Court
(1984) 	160 Cal.App.3d 667, 	671, 	206 Cal. Rpt. 	785. 	The
3Respondent 	also moved 	to defer 	this 	dispute 	to 	binding
arbitration. 	Although 	the memorandum of 	understanding 	between
the State 	and American Federation of 	State, 	County and
Municipal Employees 	(AFSCME) 	covering Unit 	19 	provides 	for
binding 	arbitration of 	reprisal 	claims, 	the motion was 	denied.
The contract 	provides 	that 	only AFSCME has 	the 	right 	to 	proceed
to arbitration; 	AFSCME 	refused to do 	so 	in Moore's case.
Therefore, 	it was concluded that 	it would be 	"futile" 	to pursue
contractual remedies. 	See section 3514.5(a) 	(2); 	State of
California 	(Department of Developmental 	Services) 	(1985) 	PERB
Order No. 	Ad-145-S; 	State of California 	(Department of
Corrections) 	(1986) 	PERB Decision No. 	561-S. 	In a related
unfair 	practice 	case Moore 	unsuccessfully charged AFSCME with 	a
breach of 	the duty of 	fair 	representation 	for 	refusing 	to 	take
his 	case to 	arbitration. 	James Alin Moore v. 	American
Federation of 	State. 	County and Municipal Employees, 	Local 	2620
(1988) 	PERB Decision No. 	683-S.
6

Board will 	give 	collateral 	estoppel 	effect 	to 	administrative
decisions made by an agency 	(1) 	acting 	in 	a 	judicial 	capacity,
(2) 	to 	resolve properly 	raised disputed 	issues 	of 	fact where,
(3) 	the parties 	had 	a 	full 	opportunity to 	litigate 	those
issues. 	State of 	California 	(Department 	of Developmental
Services), supra, PERB Decision No. 	619-S; 	see 	also People v.
Sims 	(1982) 	32 Cal.3d 468, 	168 Cal.Rptr. 	77; Frommagen v. 	Board
of 	Supervisors 	(1987) 	197 	Cal.App.3d 	Cal.Rptr. 	.
All 	of 	these 	requirements 	are met 	here with 	respect 	to
certain issues. 	The SPB, 	acting 	in a judicial 	capacity, 	fully
considered whether Moore 	actually engaged 	in 	the 	offensive
conduct 	described 	above 	and, 	if so, whether 	the Department 	of
Rehabilitation had 	sufficient 	reasons 	to 	terminate him. 	The
SPB 	answered 	both questions 	in the 	affirmative. 	The 	hearing
was 	recorded 	and 	a 	transcript 	prepared. 	Both parties 	had 	the
opportunity 	to 	call 	and 	examine witnesses 	and 	to 	present 	other
documentary evidence. 	Moore was 	represented 	by Richard 	Sharpe,
a 	representative 	of 	the American 	Federation of 	State 	County 	and
Municipal Employees, 	the exclusive 	representative of Unit 	19,
Health 	and 	Social 	Services/Professional, 	the unit 	in which
Moore was 	formerly employed. 	The 	State was 	represented 	by
Deputy Attorney General 	Calvin Wong.
Applying 	the 	principles 	of 	collateral 	estoppel 	set 	forth
above, 	and 	in the 	interest 	of 	seeking 	an 	"administrative
accommodation" 	between PERB 	and 	the 	SPB, 	the undersigned 	issued
a 	ruling 	precluding 	relitigation 	of 	those 	issues 	earlier
77

decided 	by 	the 	Personnel 	Board. 	Pacific 	Legal 	Foundation v.
Brown 	(1981) 	29 Cal.3d 168, 	200, 	172 Cal.Rptr. 	487.
Accordingly, 	Charging 	Party was 	not 	permitted 	in 	this 	unfair
practice 	hearing 	to 	relitigate 	the 	issues 	concerning whether 	he
actually engaged 	in 	the 	offensive 	conduct 	described 	above, 	and,
if 	so, 	whether that 	conduct 	constituted 	sufficient 	reason to
terminate.
There are, 	however, 	other 	issues central 	to the 	resolution
of 	any discrimination/retaliation 	complaint 	before 	PERB which
were not 	litigated during 	the 	SPB 	proceeding. 	Issues
concerning 	Moore's 	protected 	conduct 	and 	unlawful 	motivation 	on
the part 	of 	employer 	agents 	were 	not 	even mentioned 	during 	that
proceeding. 	The 	SPB was 	concerned primarily with 	the 	issue 	of
cause 	for 	termination 	and 	not with the 	separate 	issue 	of
underlying motivation. 	Therefore, 	the doctrine of 	collateral
estoppel 	cannot be 	applied 	to 	the 	latter 	issue. 	"As 	in 	any
mixed-motive case, 	the employer's 	conduct 	is unlawful when,
despite employee misconduct, 	the evidence demonstrates 	that 	the
employer would 	not 	have 	elected 	to 	discipline 	the 	employee 	as
it 	did 	but 	for 	the 	employee's 	union 	activity." 	State 	of
California 	(Department of Transportation) 	(1984) 	PERB Decision
No. 	459-S, 	p. 	9. 	During the PERB hearing, 	consequently, Moore
was 	given the opportunity to 	show that, 	notwithstanding 	the
conclusions 	reached 	by the 	SPB, 	he would 	not 	have been
disciplined 	and/or 	discharged 	"but 	for" 	his 	protected
activity. 	Novato Unified 	School 	District 	(1982) 	PERB Decision
No. 210.
8

MOORE'S 	PROTECTED 	ACTIVITY
In October 	1985 Moore was 	elected 	chairperson 	of 	AFSCME's
Rehabilitation Occupational Committee 	(ROC), 	a 	statewide
office. 	Charlie Meigs, 	District Administrator 	for 	the 	San Jose
District, 	congratulated him on his 	election. 	Among 	other
things, 	the ROC chairperson communicates with employees 	in
occupational 	classifications, 	gives 	input 	to 	the negotiating
team, 	involves employees on issues 	affecting 	their work, 	and
monitors 	legislation 	affecting 	job 	classifications.
On December 20, 	1985, 	Moore wrote to Director
Cecilia Fontanoza, 	announcing 	his 	election 	as 	ROC chairperson,
and 	stating 	his 	concer
po .
n 	abou	F- 	t 	the Department's 	practice 	of
hiring 	limited 	term employees. 	Robert Hawkins, 	Labor Relations
Officer, 	responded on behalf 	of 	Fontanoza on January 13, 	1986.
Thus, 	both Fontanoza 	and Hawkins 	had notice of Moore's 	status
as ROC chairperson.
In January 1986, 	Moore distributed 	a 	flyer 	on AFSCME
stationery at 	all 	work sites. 	The 	flyer 	announced 	an upcoming
ROC meeting, 	and 	listed 	the 	issues 	to 	be discussed 	at 	the
meeting. 	They were, 	among others, 	status of 	limited term
employees, 	production standards, 	computerization and
contracting out. 	As 	"possible 	strategies" 	for dealing with
these 	issues, 	the 	flyer 	suggested using 	a 	"telephone tree" 	and
"production 	slowdown." 	Several 	other 	flyers 	announcing 	ROC
meetings 	to 	consider 	similar 	issues were 	sent 	out 	by Moore
during 	the 	first 	half 	of 	1986. 	The 	last 	ROC meeting 	attended
99

by Moore was 	in July 1986, 	at 	approximately the 	same 	time he
was charged with 	sexual 	harassment.
In his 	capacity as 	ROC chairperson, 	Moore 	also 	became
involved 	in budgetary 	issues. 	On May 8, 	1986, 	he wrote to
State 	Senator 	Bill 	Greene 	seeking 	to 	present 	information 	to
Senate 	and Assembly 	subcommittees 	concerning 	proposed 	budget
cuts which would 	adversely 	affect 	staffing 	in 	the Department 	of
Rehabilitation. 	Moore 	attached 	a 	petition, 	signed by several
employees, 	appealing 	to 	the Legislature 	to 	support AFSCME's
effort 	to 	maintain 	and 	improve 	rehabilitation 	services.
Earlier, 	on March 12, 	1986, 	Moore had sent a 	similar 	letter to
the Assembly Ways 	and Means 	Committee 	setting 	forth AFSCME's,
position on, 	among other 	things, 	subcontracting of 	agency work
and 	budgetary 	concerns.
On May 9, 	1986, 	Moore attended a meeting where
Merrill 	Jacobs, 	the Department's 	chief deputy director, 	was 	the
main 	speaker. 	Also 	in 	attendance were 	about 	twelve 	employees
and Charlie Meigs. 	Since Moore viewed 	this meeting 	as 	pivotal,
it will 	be considered 	in 	some detail.
According 	to Moore, 	he openly disagreed with Jacobs's
assessment 	of 	a 	computerization pilot project 	in Los Angeles.
AFSCME 	and management 	had 	disagreements 	about 	how
computerization was 	to 	accomplished, 	and Moore had 	earlier
visited Los Angeles 	as 	an AFSCME 	representative 	to 	evaluate 	the
project. 	Moore 	felt computerization was 	used 	as 	a 	"management
tool 	to 	track counselors" 	rather 	than as 	a 	"tool 	to 	help
10

counselors 	in helping clients." 	In any event, 	Moore 	and Jacobs
had 	an exchange of words, 	described by Moore 	as 	a 	"standoff."
Moore 	recalled 	a 	"considerable 	amount 	of 	animosity 	and
electricity 	in 	the 	air."
.
2 . .
Jacobs, 	called 	as 	an 	adverse witness 	by the Charging 	Party,
testified 	that 	he 	recalled 	the May 	9 	meeting 	and 	the 	general
discussion about 	the pilot project 	in Los Angeles. 	However, 	he
could 	not 	recall 	an 	expression 	of 	dissatisfaction 	by Moore
about the project. 	In his view, 	the heated exchange described
by Moore 	simply did 	not 	occur.
* .. 142
Karen Mandel, 	a vocational 	rehabilitation counselor 	called
to 	testify by the Charging Party, 	also was 	at 	the meeting. 	She
too 	recalled 	that 	a 	discussion 	regarding 	computerization 	in
Los Angeles 	occurred, 	but 	she had no 	recollection of 	any 	"major
clashes 	of 	anger or 	conflict." 	In her view, 	the meeting was
"unremarkable."
Based on the 	foregoing 	testimony, 	it 	is 	concluded 	that
Moore, 	an AFSCME 	representative 	active 	in the computerization
issue, 	attended the May 9 meeting. 	He participated 	in a
discussion about computerization, 	as well 	as 	other 	subjects.
However, 	it 	is 	also concluded that 	there was 	no 	"standoff"
between Moore 	and Jacobs, 	and 	the perception 	that 	the 	air
contained 	a 	"considerable 	amount 	of 	animosity 	and 	electricity"
was held only by Moore. 	In 	reaching 	this 	conclusion, 	I 	find 	it
significant 	that Mandel, 	called to 	testify on Moore's 	behalf,
could recall 	no 	standoff. 	Her 	recollection was 	similar 	to 	that
expressed 	by Jacobs.
11

In June 	1986 Moore, 	along with several 	other 	employees,
signed a 	petition 	seeking 	the 	reinstatement 	of 	John Clute, 	an
employee who
' . '
had 	abruptly 	resigned 	amidst 	a 	series 	of 	personal
and work-related problems. 	The 	petition was 	submitted 	to
Meigs, 	who 	had 	earlier 	counselled 	Clute 	not 	to 	resign on 	the
spur 	of 	the 	moment. 	Due 	to 	a 	deficient 	overall 	work 	record,
Meigs 	had earlier 	told Clute, 	he might 	not 	be welcomed back if
he had 	a 	change of mind.
On June 20, 	1986 Moore wrote to Helen Martin, 	Assistant
Deputy Director 	for 	the Department's 	Southern Region, 	seeking
confirmation 	from her 	of 	a 	rumor 	that 	production 	standards 	for
counselors had been 	increased 	unilaterally. 	If 	true, 	Moore
wrote 	to Martin, 	the 	increase would violate 	the Memorandum of
Understanding 	between AFSCME 	and 	the 	State. 	He 	requested 	a
written response. 	Martin responded on June 30	. . 	, 	1986, 	assuring
Moore 	that 	new 	standards 	had 	not 	been promulgated 	and 	that 	no
individual 	counselor 	standards 	existed. 	Both Meigs 	and
Ferd 	Shaw, 	the Department's 	deputy director 	for 	field
operations, 	were aware of 	this exchange of 	letters. 	It was
Shaw who 	instructed Martin 	to 	respond.
The 	Charging 	Party 	insists 	that 	the 	subject 	of 	production
standards was 	of 	the 	highest 	importance 	to 	both 	the Department
of Rehabilitation 	and AFSCME. 	His 	protected conduct 	in 	this
crucial 	area, 	he contends, 	so 	annoyed and 	angered Department
representatives 	that, 	more than any other 	activity, 	it provided
. .
12

the underlying motivation 	for 	the 	adverse 	actions 	he 	suffered.
Because 	of 	the weight 	placed, o.. .. ..	n this 	subject 	by the Charging
Party, 	testimony 	concerning 	production 	standards 	wi11 	be
considered 	in detail.
Rene Bloch, 	a counselor 	and AFSCME 	steward 	in San Jose,
supported 	Moore's 	testimony 	that 	the 	production 	standards 	issue
was 	of 	great 	importance. 	Bloch testified 	that 	production
standards 	caused 	a 	"constant 	battle," 	and was 	"the biggest
issue probably." 	In 1979 	or 	1980, 	according 	to Bloch,
counselors 	refused 	to 	submit 	production 	statistics 	to 	the
Department 	as 	a 	form of 	protest, 	and the disagreement 	around
this issue has 	persisted 	over 	the 	years. 	Mandel 	also 	supported
Moore's 	testimony 	about 	the 	importance 	of 	production 	standards,
but when pressed 	she could 	give 	no 	reasons 	for 	her 	opinion.
On the other hand, 	four management 	representatives, 	called
by the Charging 	Party to 	testify 	as 	adverse witnesses,
described 	somewhat 	different 	views. 	Meigs 	explained 	that 	the
production goal 	is 	2.2 	"rehabilitations" 	per month, 	or
twenty six per year. 4 However, 	while this 	standard has 	been
in effect 	for several years, 	it 	is not 	a 	rigid standard. 	It
can be 	adjusted 	according 	to 	prevailing 	circumstances 	or
overall 	caseload 	of 	the 	individual 	counselor. 	Meigs 	testified
that 	production 	standards 	is 	not 	a 	particularly significant
issue.
4A 	"rehabilitation" 	is 	a 	client 	or 	disabled 	person who
has 	been gainfully employed 	for 	a minimum of 	six months.
13

He has 	talked to 	the 	local AFSCME 	steward 	about 	it, 	but 	there
have 	been no major 	disputes.
Kenneth Miller, 	Moore's 	immediate 	supervisor 	until
June 	1986, 	also 	admitted 	that 	production 	standards was 	an
important 	issue, 	and employees were 	occasionally 	recognized 	for
high production. 	Bu	-... 	t 	he 	too 	said 	the goals were not 	rigid;
they were 	discussed 	between 	individual 	employees 	and 	their
supervisors 	and were 	subject 	to modification. 	There were no
adverse 	actions 	taken 	against 	employees 	for 	low production.
Ferd 	Shaw 	and Elizabeth 	Solstad, 	the Department's 	chief
counsel, 	corroborated the 	testimony of Meigs 	and Miller.
Based on the foregoing, 	I 	conclude 	that production
standards 	or 	goals was 	an on-going 	subject 	of 	discussion
between AFSCME 	and 	the Department. 	However, 	like many other
employment-related 	issues, 	it 	carried no 	particular
significance. 	It was 	simply 	another 	ordinary 	labor-management
issue 	to 	be dealt with. 	The 	testimony of 	the management
witnesses 	to 	this 	effect 	is 	underscored by the 	absence of 	any
significant 	incidents 	related 	to 	disputes 	regarding 	the
subject. 	No 	employees were 	treated 	adversely as 	a 	result 	of
maintaining 	low standards. 	There 	is 	no 	evidence 	that 	the
5This 	conclusion 	should 	not 	be 	read 	to 	diminish 	the
importance of production standards. 	It has 	its 	importance.
However, 	there 	is 	simply no 	sound 	reason to elevate 	its
importance 	to 	a 	status which compels 	or 	even 	suggests 	that
Moore's 	activity 	in this 	area was 	more 	likely to 	prompt 	the
Department 	to undertake 	the 	adverse 	actions 	at 	issue 	here.
14

negotiations 	concerning 	this 	subject were 	heated. 	Although 	the
matter was 	covered 	in the collective bargaining 	agreement, 	no
grievances were 	filed. 	Nor was 	the Department 	charged with
unfair practices 	connected 	to 	the 	subject. 	Bloch 	referred 	to 	a
protest, but 	it was 	remote 	in time, 	having 	occurred in 	1979 	or
1980, 	long 	before Moore began work 	in the Department.
THE ADVERSE ACTIONS
The Letter 	of 	Reprimand
On November 25, 	1985, 	Celia Cardenas, 	a Santa Cruz County
employee, 	complained 	in writing 	to her 	supervisor, 	Allan Knox,
that Moore 	had 	sexually harassed 	her during 	a 	field visit 	to 	a
private sector 	employer. 	In 	a 	letter dated December 	12, 	1985,
Knox 	reported 	the 	incident 	to 	Kenneth Miller, 	Moore's 	immediate
supervisor 	at 	the 	time.
Upon 	receipt 	of 	the complaint, 	Miller met with Moore,
intending 	to 	reprimand him. 	After meeting with Miller, 	Moore
drafted an apology, 	dated December 17, 	1985, 	to Cardenas.
Miller 	then prepared 	a 	long memo 	to Moore, 	dated
December 	18, 	1985, 	in which he described 	in detail 	the Cardenas
complaint 	and 	his 	discussion with Moore 	during 	the meeting,
including Moore's version of 	the 	incident. 	The memo 	also
reminded Moore of 	his 	responsibilities 	as 	a 	State 	employee 	and
ended with 	a 	statement 	of Miller's 	hope 	that 	"this will 	be 	the
last 	incident 	of 	such a 	nature 	reported 	to me. 	In the event
that 	further 	incidents 	should occur, 	I will 	recommend to 	the
Department 	that more 	formalized 	action be 	taken." 	But 	this 	did
not 	end 	the matter.
.. . . "
. .
. "' . .
15

On December 	18, 	1985 Miller 	reported 	the complaint 	to his
immediate supervisor, 	Charlie Meigs. 	Meigs was 	annoyed 	because
he thought 	the 	incident 	was 	serious 	and 	therefore Miller 	should
have called him earlier. 	He 	told Miller 	so. 	He 	also 	told
Miller 	that 	individuals 	more 	experienced with 	this 	type 	of
complaint 	should have the opportunity, to 	review the case.
Accordingly, 	Miller was 	instructed 	by Meigs 	to 	forward 	all
information 	to 	him. 6 While Miller 	ceased 	any 	further
activity on the case, 	he 	testified 	that 	as 	of 	that 	time his
investigation was 	complete.
Charging 	Party 	here 	sees 	an unlawfully motivated 	attempt 	by
Meigs to take the investigation out 	of Miller's 	hands. 	I 	do
not 	see 	it 	that way. 	It 	is 	true that Meigs was 	justifiably
concerned 	about 	the 	seriousness 	of 	the 	charges 	and 	also was 	not
happy with the 	investigation. 	But 	it 	appears 	that 	he merely
told Miller 	the 	incident was 	reported 	late, 	and he directed
that 	the 	relevant 	information be 	forwarded 	so more 	experienced
people could 	review 	it. 	Since Miller's 	investigation had
ended, 	the entire matter 	passed to Meigs 1 level. 	There 	is
nothing 	remarkable 	in this 	turn of 	events.
6 The 	information given to Meigs was: 	(1) 	Cardenas'
complaint to Knox; 	(2) 	Knox' 	letter to Miller; 	and 	(3) Miller's
summary of 	his meeting with Moore, 	including Moore's 	version of
the 	incident.
16

Meigs 	was 	not 	satisfied with 	the material 	he 	received 	from
Miller. 	He 	thought 	the 	apology 	insincere 	and 	the 	penalty
suggested by Miller 	in his December 	15, 	1985 	memo 	to Moore 	too
light. 	Meigs 	testified that 	it was 	a 	"slap on the wrist" 	for 	a
serious offense.
After 	reviewing 	the written material, 	Meigs 	consulted with
Joe Brown, 	civil 	rights officer, 	Bob Hawkins, 	employee
relations officer, 	and Ken Englebach, 	Meigs's 	immediate
supervisor. 	Meigs 	did 	not 	talk directly with Moore 	or
Cardenas. 	However, 	he had 	reviewed Moore's 	account of 	the
incident, 	as presented by Miller 	in the December 	15, 	1985 memo,
as well 	as Cardenas' version of 	the 	complaint, 	as 	presented in
her earlier memo 	to 	her 	supervisor, 	Allan Knox.
. . .
On December 	19, 	1985, 	Meigs 	recommended to 	the personnel
office 	that Moore 	be given 	a 	formal 	reprimand 	and 	required 	to
write 	a 	sincere 	letter of 	apology. 	In 	formulating 	this
recommendation, 	Meigs 	found 	"most damaging" 	Moore's 	inability
to 	recall 	several 	of 	the 	so-called 	touching 	aspects 	of 	the
complaint. 	Miller 	had 	recorded, 	in his December 	18 memo,
Moore's 	inability to 	recollect.
Meigs' 	recommendation was 	accepted. 	The 	second 	letter 	of
apology 	satisfied Meigs 	and was 	sent 	by Moore 	to 	Cardenas 	on
January 30, 	1986. 	On February 11, 	1986, 	Englebach formally
reprimanded 	Moore.
The 	Letter 	of 	Termination
On June 26, 	1986, 	Karen Cooper 	approached her 	immediate
17

supervisor, 	Robert Stoll, 	(Stoll had recently replaced Miller),
and 	informed 	him of 	her 	complaints 	against Moore 	and 	of 	her
unsuccessful 	attempts 	to 	get 	him to 	stop 	the 	offensive
behavior. 	Stoll 	explained 	the 	right 	to 	file 	a 	formal
complaint, 	but 	he 	advised 	that 	she 	should 	be 	certain before
doing so. 	A formal complaint, 	Stoll explained, 	would 	require.....
her 	to 	confront Moore directly with 	the 	allegations 	of 	sexual
harassment, 	potentially a difficult 	task. 	He 	suggested 	that
she 	think about 	it 	carefully over 	the weekend before 	reaching 	a
final decision.
The 	following week Cooper 	told 	Stoll 	she 	had 	decided 	to
file the formal complaint. 	Being new to 	the office, 	Stoll
contacted Meigs. 	In a meeting 	that day with Stoll 	and Meigs,
Cooper 	again presented 	her 	allegations 	against 	Moore. 	Meigs
told Cooper 	he 	thought 	she had 	a 	valid case, 	and he
"encouraged" 	her 	to 	file 	a 	formal 	complaint. 	He did not
contact Moore 	to 	learn his 	side of 	the 	story before 	providing
his 	encouragement.
Civil 	Rights 	Officer 	Joe 	Brown was 	called 	immediately 	and
told by Cooper 	that 	she wanted 	to 	file 	a 	formal 	complaint.
Soon thereafter Meigs 	reported 	the 	events 	to 	his 	immediate
supervisor, 	Ken Englebach, 	who told Meigs 	to conduct 	an
investigation. 	Meigs 	then called 	the 	personnel 	office 	to
initiate 	an 	investigation.7
7 0n 	about 	July 7 Meigs 	talked 	again with Englebach 	and
the 	subject 	of 	dismissal 	"came up." 	Englebach 	told Meigs 	that,
18

in his view, 	dismissal was 	appropriate 	if 	the 	allegations
against Moore were 	substantiated. 	Meigs 	played 	no 	further 	role
in Moore's 	dismissal. 	He went 	on vacation 	and while 	he was
gone Moore was 	dismissed.
By June 	30, 	1986 	Stoll 	had 	informed Moore of 	Cooper's
complaint. 	Shortly thereafter, 	on July 1, 	1986, 	Stoll directed
Moore 	in writing 	to have 	no 	further 	contact with Copper. 	Moore
was placed on administrative 	leave, 	effective July 18, 	1986 	and
was terminated July 25, 	1986.8
'Meanwhile, 	Cooper's 	complaint was 	investigated 	by two
people, 	Personnel Analyst Russ 	Enyart 	and Civil 	Rights Officer
Joe Brown. 	The civil 	rights 	officer 	is 	charged with the duty
to 	investigate 	formal 	complaints 	of 	discrimination 	or 	sexual
harassment. 	The personnel 	analyst's 	duty is 	to 	investigate
possible 	adverse 	actions. 	This was 	the 	first 	case 	in which 	a
so-called dual 	investigation was 	employed.
Enyart 	interviewed Meigs 	on July 2, 	1986. 	The next day he
went 	to 	Santa 	Cruz 	and 	interviewed Cooper 	and 	Stoll. 	Enyart
also 	interviewed other employees 	in Santa Cruz. 	Chris 	Smart, 	a
vocational 	rehabilitation counselor, 	told Enyart 	he 	saw Cooper
displaying 	"avoidance 	action 	trying 	to 	stay 	away 	from Jim."
8 Stoll was 	not 	aware of Moore's 	protected conduct, 	having
become Moore's 	supervisor 	only 	about 	one month prior 	to Moore's
termination.
9Neither 	Enyart 	nor 	Brown worked 	in 	Santa 	Cruz. 	Because
of 	the 	sensitive nature of 	the complaint, 	Englebach 	and Larry
Kerosec, 	chief of personnel, 	concluded that persons 	from
outside 	the 	Santa 	Cruz 	office 	should 	investigate.
19
'

Marilyn Mendoza, 	also 	an employee, 	told Enyart 	that 	at 	a
meeting 	she 	saw Moore 	"get 	a 	hold 	of 	or 	grab Karen 	and Karen
wrest 	away 	from him 	and move 	out 	very quickly" 	in 	an
"angry-like" 	manner. 	Enyart 	interviewed 	four 	other Department
employees 	and 	one 	county employee. 	Except 	for 	the 	county
employee, who 	refused 	to 	talk to 	Enyart, 	the 	record 	does 	not
clearly establish what 	response 	the 	others 	gave Enyart.10	10
On July 7, 	1986, 	Enyart 	reported his 	findings 	to Kerosec.
Under Kerosec's direction, 	Enyart 	then prepared 	a draft 	of 	a
letter 	of 	adverse 	actions 	against Moore. 	The penalty part 	of
the 	letter, 	however, 	was 	left blank. 	Enyart had not
interviewed Moore 	as of 	this 	time.
On July 	8 	and 	9 	Brown conducted his 	part 	of 	the
investigation. 	He 	interviewed 	or 	attempted 	to 	interview
fourteen people.
Brown 	first 	interviewed Cooper, 	who 	presented 	a 	detailed
account 	of 	the 	allegations 	against Moore. 	Brown next 	talked 	to
Moore. 	In essence, 	according to Brown's 	final written report
and his 	testimony at 	the hearing, 	Moore denied 	some of 	Cooper's
allegations 	and 	could 	not 	recall 	crucial 	facts 	concerning
others. 	The precise nature of 	other 	allegations was 	disputed.
10The 	responses 	received 	by Enyart 	and 	Brown 	during 	the
course 	of 	the 	investigations 	are 	not 	relied on here 	for 	the
truth of 	the matters 	stated. 	Rather, 	they are 	set 	forth here
to 	show the 	nature 	of 	the 	respective 	investigations 	and 	the
responses 	received.
20

For 	example, 	Cooper 	claimed Moore 	forcibly 	kissed 	her 	on 	the
mouth in a 	restaurant. 	Moore described 	it 	as 	a 	friendly
birthday kiss.
. . .
Brown contacted 	twelve other witnesses. 	Mendoza
corroborated 	Cooper's 	allegation 	that 	Moore 	committed 	an
"unwelcome physical 	touching" 	at 	a meeting. 	The 	remaining
eleven 	individuals 	contacted were 	not 	particularly 	helpful.
According 	to 	Brown, 	they told him they did not want 	to 	"get
involved."
On July 11, 	1986, Kerosec, 	Solstad, 	Englebach, 	Brown and
Enyart met 	to discuss 	the 	allegations 	against Moore. 	Both
Brown and Enyart 	had completed their 	investigations, 	but 	Brown
had not yet written his 	final 	report.111 As 	the Department's
attorney, 	Solstad was 	concerned 	that 	any 	adverse 	action
proposed 	against Moore 	could withstand 	attack 	on 	appeal.
1
There was 	a 	general 	discussion concerning 	the 	two
investigations, 	the 	specific 	facts 	surrounding 	the Cooper
complaints, 	and the earlier 	letter of 	reprimand. 	Brown, 	in
response 	to 	questions 	by Solstad, 	reported 	that Moore was
equivocal when 	responding 	to 	the 	allegations. 	Cooper was 	more
credible, 	he 	reported. 	Brown told 	those 	at 	the meeting 	that
Moore's 	responses 	to 	Cooper's 	allegations 	"left 	something 	to 	be
11Brown 	completed the written 	report 	at 	a 	later 	date.
Based on the 	final written 	report, 	Director Cecelia 	Fontanoza,
in August 	1986, 	upheld Cooper's 	complaint 	of 	sexual 	harassment.
21

desired." 	He described Moore 	as 	"vacillating" 	while 	responding
to 	questions 	about what 	happened 	between Moore 	and Cooper.
Enyart 	painted 	a 	similar 	picture of 	Cooper. 	He 	told 	those
present 	that 	during 	his 	investigation 	he 	found 	Cooper
"believable." 	The 	reports 	by Enyart 	and 	Brown 	satisfied 	. . . .
Solstad 	that 	any adverse 	action 	against Moore could withstand .
appellate 	attack.
There was 	no mention during 	the meeting 	of 	Moore's
protected 	activity. 	All 	participants 	convincingly 	testified
that 	they were 	not 	even 	aware 	of 	the 	activity 	at 	the 	time 	of
the meeting.
During the course of the meeting, 	Solstad, 	Kerosec 	and
Engleback eventually 	reached 	the 	decision 	to 	recommend Moore's
termination. 	Since Enyart 	and Brown were 	not 	cast 	in 	the 	roles
of management decision-makers, 	they were 	not 	asked 	for 	their
recommendations. 	However, 	neither 	registered 	an objection to
the decision 	to 	recommend 	termination.
Ferd 	Shaw eventually signed 	the 	letter 	of 	termination, 	but
in doing 	so 	it 	appears 	that 	he merely concurred 	in 	the
recommendation which emerged 	from the 	July 	11, 	1986
meeting.12 Shaw was 	aware of 	the Cooper 	case, 	but 	there 	is
no 	evidence 	that 	he played 	any 	role 	in the 	investigations 	or 	in
the 	formulation of 	the 	recommendation. 	Englebach had 	kept 	Shaw
1 2 The 	parties 	stipulated 	that 	Tom Burns, 	deputy director
of 	administration, 	also 	reviewed 	the 	letter of 	termination 	and
approved 	it. 	The 	stipulation 	also 	recognizes 	that 	Burns 	had 	no
unlawful motive.
22

informed of 	the 	status of 	the 	investigation, 	but 	there 	is 	no
evidence that Merrill Jacobs, 	Shaw's 	immediate supervisor, 	or
any others 	higher 	in the managerial 	hierarchy were 	kept 	abreast
of 	the 	ongoing 	developments 	relating 	to 	the complaint.
DISPARATE 	TREATMENT
The Charging 	Party's 	argument 	that 	he was 	treated 	in 	a
disparate 	fashion 	is 	based primarily on 	a 	comparison of 	his
case with the Lynn Kageyama-Larry Payton case. 	Both Kageyama
and Payton 	are counselors 	is 	the 	Santa 	Cruz 	office who 	had
lived together 	for 	several years. 	In February 	1984 	they
stopped 	living 	together 	and 	ended 	their 	relationship. 	The
break-up was 	at 	times 	bitter 	and 	the effects 	spilled over 	into ,
the Santa Cruz 	office.
The 	Kageyama-Payton 	affair was 	so 	disruptive 	that
supervisor Ken Miller, 	on May 15, 	1984, 	issued a memo,
captioned 	"office protocol," 	setting 	forth a 	list 	of 	rules 	to
enable Kageyama 	and 	Payton 	to 	deal with each 	other when 	in 	the
office.13 Kageyama 	and 	Payton 	saw a 	therapist 	together
during 	1984, 	but their 	relationship, 	at 	least 	at work, 	did not
improve during 	1984 	and most 	of 	1985.
In May 	1985 Meigs 	met with Kageyama 	and discussed 	her
allegations 	against Payton. 	As 	he did 	in the Cooper 	case,
Meigs 	encouraged her 	to 	file 	a 	formal 	complaint. 	Meigs
13The 	list 	included eight 	rules. 	For 	example, 	face to
face communication was 	to be 	limited, 	personal 	business was 	to
be handled during 	nonwork time, 	no 	shouting was 	allowed, 	etc.
23

immediately called 	Joe 	Brown 	and 	Kageyama 	talked 	to 	Brown.
During 	their 	conversation 	Brown 	scheduled 	an 	appointment 	with
Kageyama.
On July 17, 	1985, 	Kageyama wrote 	a 	lengthy memo 	to Brown
detailing 	a 	"summary of 	harassment 	that 	has 	occurred 	on 	the
job" 	between January 12, 	1984 	and May 22,1985. 	The memo was
not 	a 	formal 	complaint which 	asked 	Brown 	to 	investigate. 	The
language 	in the memo 	indicates 	that 	Kageyama 	sought 	only to
have 	the document 	placed 	in her 	personnel 	file.
Kageyama 	raised 	thirty 	five 	separate 	incidents 	in 	the
memo.14 Many of 	the early 	allegations 	appear 	to 	be 	the
result of 	arguments 	or confrontations 	between 	two 	people 	in 	the
process 	of ending 	a 	long 	relationship. 	Later, 	however, 	the
allegations became more 	serious. 	For 	purposes 	of 	evaluating
Charging Party's disparate 	treatment 	argument, 	a 	summary of 	the
relevant 	allegations 	is 	set 	forth here.
Kageyama wrote to Brown that, 	in February 1984, 	Payton
tried 	to hug 	her 	after 	attempting 	to 	give her 	a 	copy of 	a
premarital 	agreement; 	he hugged her 	again in August 	1984. 	The
memo 	also 	stated that, 	in July 1984, 	Payton threatened to 	kill
Kageyama 	because 	he 	suspected 	her 	of 	having 	an 	affair with 	a
co-worker. 	At 	a March 	6, 	1985 meeting 	Payton directed
"insulting 	sexual 	innuendos" 	to Kageyama. 	Payton was 	accused
14The 	memo was 	received 	into 	evidence 	to 	show only 	the
existence 	of 	Kageyama's 	allegations 	against 	Payton 	and 	the
length of 	time 	they were outstanding. 	The memo was 	not
received to 	show the 	truth 	of 	the 	allegations.
24

of 	calling 	her 	on 	the 	office 	intercom 	and 	breathing 	heavily
into 	the 	phone. 	Kageyama 	said 	Payton physically blocked 	her
from passing 	by him in 	a 	hallway, 	and 	he made attempts 	to 	gain
access 	to 	her 	home 	telephone 	number 	and 	address.
Kageyama 	also 	charged 	Payton with 	acts 	she 	suspected 	he
committed but 	could not 	prove. 	For 	example, her 	car was
damaged 	but 	she 	had no 	evidence 	that 	Payton did 	it. 	On 	several
occasions 	she 	arrived 	at 	work 	to 	find 	that 	someone 	had urinated
in her 	office, 	but 	could produce no 	proof 	that 	Payton did 	it.
Payton 	denied 	committing 	these 	acts.
According 	to Kageyama's memo 	to Brown, 	Miller was 	aware of
most 	of 	these 	incidents. 	Meigs, 	on the other hand, 	testified
that 	he was 	under 	the 	impression 	from 	about May 	1984 	to
June 	1985 	that 	the 	Santa Cruz 	office was 	running 	smoothly. 	It
was 	not 	until May of 	1985, 	when he 	finally met with Kageyama,
that Meigs 	learned 	otherwise.
Kageyama, 	on August 29, 	1985, 	filed a 	sexual harassment
complaint with 	the 	State 	Personnel 	Board. 	Although Kageyama
had 	submitted 	a memo 	to 	Brown 	and met with him, 	the 	record 	does
not 	establish why she chose 	to 	file 	a 	complaint with 	SPB 	rather
than 	pursue 	the matter 	through 	internal 	agency procedures.
Whatever her 	reason, 	it 	is 	fair to 	infer that, 	at 	least 	at 	this
time, 	Kageyama intended that the SPB, 	not Brown, 	investigate
her 	complaint.
The SPB, 	on October 	8, 	1985, 	referred the case back to
Kageyama, 	directing 	her 	to 	first 	attempt 	a 	resolution 	through
25

internal 	agency complaint 	procedures. 	Brown testified 	that 	no
formal 	complaint was 	ever 	filed with him. 	He did 	not 	consider
her 	lengthy memo of July 17, 	1985 	to him as 	a 	formal
complaint. 	Nevertheless, 	as 	a 	result of 	his earlier contact
with Kageyama 	in May, 	he wrote to 	her 	on November 	4, 	1985 	"to
address 	the 	situation which you 	stated was 	occurring 	at 	your
work site." 	Among 	other 	things, 	Brown's 	letter 	informed
Kageyama 	that 	counselor 	offices 	in 	Santa 	Cruz 	had 	locks
installed, 	and 	also 	that 	locks 	on the outer doors 	had been
changed.
Kageyama's 	complaints 	apparently were 	never 	resolved 	to 	her
satisfaction, 	for on March 24, 	1986 	she filed 	in the Superior
Court" a COMPLAINT FOR SEXUAL HARASSMENT, 	MALICIOUS DESTRUCTION
OF PERSONAL 	PROPERTY, 	AND 	INTENTIONAL 	INFLICTION OF EMOTIONAL
DISTRESS. 	She named, 	as defendants, 	the Department of
Rehabilitation, 	Larry Payton, 	Ken Miller 	and Charles Meigs.
The 	lawsuit was 	still pending 	as 	of 	the close of 	the hearing 	in
this matter.
Several 	witnesses 	testified 	about 	the differences 	they 	saw
between 	the 	Kageyama-Payton 	case 	and 	the 	Cooper-Moore
case.15	15 Meigs 	felt 	that 	the 	charges 	against Moore were more
15	15Miller	Miller 	is 	represented 	by the Attorney General's 	office
in the Kageyama 	lawsuit. 	On 	advice of counsel, 	Miller 	refused
the undersigned's 	order 	on 	the 	first day of 	hearing 	to 	testify
in this 	proceeding 	about 	his 	role 	in the Kageyama-Payton case.
Although his 	testimony would 	have 	been 	relevant 	on 	the 	issue 	of
disparate treatment, 	Miller's 	refusal 	has 	not 	prejudiced
Charging 	Party's 	case. 	Other 	testimonial 	and 	documentary
evidence, 	especially Kageyama's July 17, 	1985 memo to Brown,
26

serious. 	Since Moore 	had 	already been disciplined 	in the
Cardenas 	case, 	another 	similar 	offense might 	open the State to
liability. 	He 	therefore 	acted more 	quickly 	in pursuing 	the
investigation of 	the charges 	against Moore 	than he did of 	the
charges 	against 	Payton.
has 	enabled 	the 	Charging 	Party 	to 	present 	his 	argument
concerning the disparate treatment 	issue. 	Moreover, 	it 	is
noted 	that 	Charging 	Party, 	despite Miller's 	refusal 	to 	testify,
did not 	call Kageyama 	as 	a witness 	later 	in the hearing 	to
testify 	about 	disparate 	treatment, 	nor 	has 	he 	raised 	the 	issue
in 	its 	post-hearing 	brief, 	thus 	suggesting 	any claim of
prejudice 	has 	been 	abandoned.
In 	concluding 	that 	the 	two 	cases 	were 	different, 	Brown,
Meigs 	and 	Solstad 	also 	found 	it 	significant 	that 	Kageyama 	and
Payton had 	lived 	together 	for years, 	and during 	1984 	they saw 	a
therapist 	together. 	This 	suggested 	a 	reconciliation was
possible 	and 	it 	also 	placed 	the 	allegedly offensive hugs 	in 	an
. '. .
entirely different 	light. 	Moore 	and Cooper, 	on the other hand,
were 	merely 	co-workers 	with 	a 	completely different 	relationship
Brown 	testified 	about 	specific 	incidents 	which 	distinguish
the 	two 	cases. 	He 	said 	his 	investigation 	revealed 	that 	the
threat 	by Payton to 	kill 	Kageyama was 	nothing more 	than 	a mere
misunderstanding. 	Also, 	while there was no concrete proof 	of
many of 	the 	allegations made 	against 	Payton, 	the 	offensive
touching of 	Cooper 	by Moore was 	clearly established. 	Also,
Brown 	suggested 	during 	his 	testimony 	that 	Kageyama 	may have
16	16
16For 	example, 	there was 	never 	any proof 	that 	Payton
urinated 	in Kageyama's 	office, 	nor was 	there proof 	that 	he
damaged 	her 	car.
27

contributed 	to 	the 	problem by 	screaming 	at 	Payton 	in 	the 	office.
Another 	totally 	separate 	incident 	of 	disparate 	treatment
involved Karen Cooper 	and Counselor 	Chris 	Smart.; 	Cooper
complained 	to Miller 	that 	Smart 	put 	his 	foot 	between her 	legs
as 	she 	sat 	in 	a 	swivel 	chair. 	Although there was 	no 	touching,
Cooper 	told Miller 	that 	it was 	"symbolic 	that 	he's 	trying 	to
insert 	his 	penis 	in me." 	Cooper 	asked Miller 	not 	to 	contact
Smart 	about 	the complaint, 	but Miller 	spoke to 	him anyway.
According to Miller, 	Smart was 	"shocked" 	at the complaint. 	He
apologized 	to Cooper 	and 	that 	ended 	the matter. 	There was 	no
formal 	complaint 	filed.
On 	another 	occasion Miller 	received 	a 	complaint 	from 	a
client 	that 	Cooper was 	trying 	to 	have 	sex with him. 	The
complaint 	involved no 	physical 	touching, 	and was 	based 	instead
on verbal 	suggestions 	and 	body 	language. 	Cooper 	emphatically
denied 	it 	and 	the matter was 	dropped.
ISSUE
Whether 	James 	Alin Moore would 	not 	have 	received 	a 	letter
of 	reprimand 	and 	eventually 	been 	discharged 	but 	for 	his
protected 	activity?
DISCUSSION
Section 3519(a) 	prohibits discrimination 	against 	an
employee 	for 	engaging 	in 	conduct 	protected 	by the Act,
including:
. 	. 	. 	the right to form, 	join, 	and
participate 	in 	the 	activities 	of 	employee
. . .
28

organizations 	of 	their 	own 	choosing 	for 	the
purpose 	of 	representation on 	all 	matters 	of
employer-employee 	relations. 	(Sec. 	3515.)
Novato Unified School District, 	supra. 	PERB Decision No. 	210,
sets 	forth 	the 	standards 	by which charges 	alleging
discriminatory conduct 	are 	to 	be decided. 	The 	Board 	has
summarized 	the test 	as 	follows: . .
. . . 	a party alleging a violation 	. 	. 	. 	has
the burden of making 	a 	showing 	sufficient 	to
support 	the 	inference 	that 	protected 	conduct
was 	a 	"motivating 	factor" 	in the employer's
decision 	to engage 	in 	the 	conduct 	of which
the employee complains. 	Once this 	is
established, 	the burden 	shifts 	to 	the
employer 	to demonstrate 	that 	it would 	have
taken the 	same 	action 	even 	in 	the 	absence 	of
the protected conduct. 	As 	noted 	in Novato,
this 	shift 	in the burden of 	producing
evidence must 	operate 	consistently with 	the
Charging 	Party's 	obligation 	to 	establish 	an
unfair 	practice 	by 	a 	preponderance of 	the
evidence. 	(California 	State University.
Sacramento 	(1982) 	PERB Decision No. 	211-H at
pp. 	13-14.)
This 	test 	is 	also used 	to decide discrimination cases 	under 	the
Dills Act. 	See e.g. 	State of 	California 	(Department 	of
Developmental Services) 	(1982) 	PERB Decision No. 	228-S.
The 	test 	adopted 	by 	the 	Board 	is 	consistent 	with 	precedent
in California 	and 	under 	the 	National 	Labor 	Relations 	Act 	(NLRA)
requiring 	the 	trier 	of 	fact 	to weigh both direct 	and
circumstantial 	evidence 	in 	order 	to determine whether 	an 	action
would 	not 	have 	been 	taken 	against 	an 	employee 	but 	for 	the
exercise of 	protected 	rights. 	See 	e.g., 	Martori 	Brothers
Distributors 	v. 	Agricultura	- 	l 	Labor Relations 	Bd. 	(1981)
29 Cal.3d 721, 	727-730; Wright Line. 	Inc. 	(1980) 	251 NLRB 1083
29

[105 LRRM 1169] 	enf., 	in part, 	(1st Cir. 	1981) 	662 F.2d 899
[108 	LRRM 2 5 1 3 ] . 1 7
Hence, assuming 	a 	prima 	facie case 	is 	presented, 	an
•employer carrie-1
s 	the 	burden 	of 	producing 	evidence 	that 	the
action 	"would 	have 	occurred 	in 	any event." 	Martori 	Brothers
Distributors v. 	Agricultural 	Labor Relations 	Bd., 	supra, 	29
Cal.3d at 	730. 	Once employee misconduct 	is demonstrated, 	the
employer's 	action,
. 	. 	. 	should not be deemed an unfair 	labor
practice 	unless 	the 	Board 	determined 	that
the 	employee would 	have 	been 	retained 	"but
for" 	his 	union membership or his 	performance
of 	other 	protected 	activities. 	(Ibid.)
PROTECTED 	CONDUCT AND 	EMPLOYER 	KNOWLEDGE
Moore engaged 	in 	several 	types 	of 	protected 	activity during
his employment 	in the Department. 	For example, 	he was
chairperson of ROC, 	a 	statewide office. 	As ROC chairperson,
Moore played 	an 	active 	role 	in 	scheduling 	and 	participating 	in
meetings 	to develop 	strategies 	to 	deal with 	a variety of 	. .
employment-related 	issues, 	e.g., 	computerization,
subcontracting, 	production standards. 	He wrote 	letters 	to
legislators 	regarding 	budgetary 	and 	other 	employment-related
issues, 	and he 	signed petitions 	to 	legislators urging 	support
1 7 The 	construction 	of 	similar 	or 	identical 	provisions 	of
the NLRA, 	as amended, 	19 U.S.C. 	151 et seq., 	may be used to
guide 	interpretation of 	the SEERA. 	See, 	e.g., 	San Diego
Teachers Assn, 	v. 	Superior Court 	(1979) 	12 Cal.3d 1, 	12-13;
Fire Fighters Union v. 	City 	of Vallejo 	(1974) 	12 Cal.3d 	608,
616. 	Compare 	section 3519(a) 	of 	the Act with section 8(a) 	(3)
of 	the NLRA, 	also 	prohibiting 	discrimination 	for 	the exercise
of 	protected 	rights.
30

of AFSCME's 	campaign to 	improve 	rehabilitation 	services. 	On
behalf 	of AFSCME, 	he was 	also active 	in monitoring 	the
Department's 	computerization pilot 	project. 	He 	also monitored
the Department's 	application of 	production 	standards, 	and he
signed 	a 	petition 	seeking 	the 	reinstatement 	of 	a 	co-worker.
Therefore, 	it 	is 	found that Moore engaged 	in. protected
activity, 	a 	point 	not 	contested 	by the Respondent.
Respondent 	argues, 	however, 	that 	those 	individuals who made
the decision to 	terminate Moore had 	no 	knowledge 	of 	his
protected 	activity. 	Therefore, 	they could 	not 	have 	been
motivated 	by unlawful 	intent.
It is true, as Respondent 	argues, 	that 	the Charging 	Party
must 	show 	that 	those 	individuals 	responsible 	for 	the 	decision
to terminate him 	(i.e., 	those 	individuals who participated 	in
the meeting on July 11, 	1986) 	had 	actual 	or 	imputed knowledge
of Moore's 	protected 	conduct. 	Konocti 	Unified 	School 	District
(1982) 	PERB Decision No. 	217; 	San Diego Community College
District 	(1983) 	PERB Decision No. 	368. 	An employer cannot
retaliate 	against 	an 	employee 	for 	engaging 	in protected 	conduct
if 	those 	ultimately 	responsible 	for 	the 	improper 	conduct 	do 	not
even 	know of 	the 	existence 	of 	the 	protected 	conduct.
Charging 	Party has 	not 	shown 	here 	that 	the 	individuals 	who
investigated 	the Cooper 	allegations 	(Brown 	and Enyart) 	or 	the
individuals who, 	on July 11, 	1986, 	reached the 	recommendation
to terminate 	(Solstad, 	Kerosec 	and Englebach) 	were even 	aware
of 	his 	protected 	activity. 	To 	the contrary, 	each of 	these
31

employees 	convincingly 	testified 	that 	they were 	not 	aware 	of
the protected conduct. 	The Board has 	refused to 	automatically .
impute 	either 	knowledge 	of 	protected 	conduct 	or 	unlawful 	animus
on the 	part 	of 	subordinate 	employees 	to 	the ultimate 	decision
makers. 	See e.g., 	Konocti Unified School District, 	supra;
Regents 	of 	the University of 	California 	(1983) 	PERB Decision
No. 319-H.
However, 	a decision-making process, 	such as 	that which
occurred on July 11, 	1986, 	may be 	tainted where decision
makers, 	even innocently, 	rely upon the 	input 	of 	other
management 	officials who 	may have 	harbored 	an unlawful 	motive
as 	a 	result 	of 	their 	knowledge of the 	protected 	activity 	in
question. 	State of California 	(Department 	of 	Parks 	and
Recreation) 	(1983) 	PERB Decision No. 	328-S.
In 	this 	case Meigs 	had 	knowledge 	of Moore's 	protected
activity. 	On July 7 he talked 	to 	Englebach, 	a 	key participant
in the July 11 meeting, 	about 	the possibility of 	terminating
Moore 	if 	the allegations were substantiated. 	Also, 	Meigs was
responsible 	in 	large part 	for 	the 	decision 	to 	reprimand Moore
in the Cardenas case; 	and the 	letter of 	reprimand, 	in turn,
played 	a 	part 	in 	the decision to 	terminate Moore 	at 	the 	July 	11
meeting. 	In other words, 	because of 	the 	initial 	letter of
reprimand, 	the Cooper complaint was viewed 	as 	a 	"second
offense" 	by those at the July 11 meeting. 	Hawkins, 	another
person who 	played 	a 	role 	in the Cardenas 	case, 	was 	also 	aware
of Moore's 	protected conduct, 	having 	responded 	to Moore 	on
32

behalf 	of 	Fontanoza 	concerning 	the 	limited-term employee
issue. 	Upon this 	admittedly tenuous basis, 	Meigs's 	and
Hawkins 'knowledge 	of Moore's protected 	conduct 	is 	imputed 	to
those 	individuals 	who made 	the 	recommendation 	to 	terminate
Moore 	after 	the 	July 	11 meeting.18
UNLAWFUL 	MOTIVATION
In his 	attempt 	to establish that 	he would 	not 	have 	been
terminated but 	for 	his 	protected 	activity, 	the Charging 	Party
relies 	essentially on 	three 	arguments 	to 	prove unlawful
motivation. 	First, 	he 	asserts 	he was 	treated 	in a disparate
manner. 	Second, 	he contends 	the 	investigations 	of 	his 	cases
were conducted 	in 	a cursory manner which, also violated
Departmental 	regulations. 	Third, 	he views 	the timing of 	the
adverse 	actions 	taken 	against 	him as 	suspicious. 	Each of 	these
arguments will 	be 	considered 	below.
Moore contends 	that 	Kageyama's 	allegations were greater 	in
number 	and 	extremely serious, 	yet 	no 	formal 	investigation was
conducted 	and no discipline 	imposed 	on Payton. 	In comparison,
Charging 	Party 	asserts 	that 	Cooper's 	allegations were 	fewer 	in
number 	and milder 	in degree, 	yet 	his 	case was 	investigated
immediately and 	in 	a matter 	of weeks 	he was 	terminated. 	The
Charging 	Party contends 	that 	the 	disparate manner 	in which 	his
18	18In	rn 	addition, 	Shaw had knowledge of Moore's exchange of
correspondence with Martin, 	and he 	signed 	the 	letter 	of
termination. 	While 	Shaw played no major 	role 	in 	formulating
the 	recommendation to terminate, 	he nevertheless was 	in a
position to 	review its 	contents 	and, 	at 	least 	theoretically,
could 	have 	disagreed with 	the 	outcome.
33

case was 	treated points 	to 	an unlawful 	motive on 	the part of
those 	involved.
It 	is well-established 	that 	an unlawful motive may be
inferred 	from a 	situation where 	an employee who 	has 	engaged 	in
protected 	conduct 	is 	treated 	differently 	from other 	employees
for 	identical 	or 	similar 	conduct. 	Novato Unified 	School
District. 	supra. 	p. 	7; 	San Joaquin Delta Community College
District 	(1982) 	PERB Decision No. 	261, 	p. 	8; 	San Leandro
Unified School District 	(1983) 	PERB Decision No. 	288, 	p. 	11.
However, 	the many differences 	between the Moore-Cooper 	case 	and
the 	Payton-Kageyama 	case 	preclude 	a 	finding 	of 	disparate
treatment.
Payton 	and Kageyama 	had 	lived 	together 	for many years. 	In
January 	1984, 	they began to 	end their 	relationship. 	They saw a
therapist 	together during 	1984. 	Consequently, 	at 	least during
1984, 	the Department 	saw this 	as 	a private matter with the
possibility of 	a 	reconciliation, 	rather 	than as 	a workplace
dispute. 	Cooper 	and Moore, 	on the other hand, 	had no prior
relationship. 	They were 	simply co-workers. 	Therefore, 	there
was 	no 	overriding 	possibility of 	a 	reconciliation.
It 	is 	true 	that 	the 	investigation of Cooper's 	complaint was
undertaken 	almost 	immediately 	after 	Cooper 	reported 	her
complaint 	to Meigs 	and 	he 	encouraged her 	to 	file 	a 	formal
complaint. 	After 	Kageyama 	eventually 	reported 	her 	complaints
to Meigs, 	he 	immediately put 	her 	in touch with Brown. 	Meigs
thus 	responded 	to 	both women 	in 	a 	similar 	fashion. 	Kageyama
34

met with Brown, 	but 	for 	some unexplained 	reason 	she 	chose 	to
contact 	the 	SPB 	rather 	than proceed 	through 	internal 	agency-
procedures. 	Since no 	formal 	complaint was 	ever 	filed with
Brown, 	he never 	investigated 	in a 	formal way.
In addition, 	a comparison of 	the offensive touching
allegations shows 	no disparate treatment. 	As 	the 	result 	of 	a
thorough 	investigation, 	it was determined that 	Cooper was 	a
more 	credible witness 	than Moore with 	respect 	to 	these
allegations. 	Thus, 	the Department 	felt confident of 	its
proof. 	In comparison, 	as noted 	above, 	there was 	no 	formal
investigation 	in Kageyama's 	case. 	By the 	time Kageyama
eventually talked, to Meigs 	and contacted 	Brown 	the 	allegations
of 	offensive 	touching 	directed 	at 	Payton 	involved 	incidents
which were remote 	in time, 	and, 	more importantly, 	had occurred
in 	1984 when the two were 	still 	in therapy together. 	Kageyama
made no 	allegations 	of 	offensive 	touching 	in 	1985.19 This
placed 	the 	allegations 	against 	Payton 	in 	an entirely different
setting.
Other 	1985 	allegations 	by Kageyama 	concerned 	incidents
unsupported by proof 	that 	Payton was 	responsible, 	e.g., 	urine
in Kageyama's 	office 	and damage 	to 	her car. 	Yet 	other
allegations 	that Payton, 	during 	1985, 	uttered 	"insulting 	sexual
19 According 	to Kageyama's July 17, 	1985 memo 	to Brown,
the only incident 	in 	1985 which came 	close 	to 	an offensive
touching was 	Payton's 	attempt 	at 	physically preventing 	her 	from
passing by him in a hallway at work. 	There was, 	however, 	no
touching 	during 	this 	brief 	incident.
35

innuendos" 	to Kageyama, 	called her on the office 	intercom and
breathed heavily 	into 	the 	phone, 	tried 	to 	get 	her 	private 	phone
number 	and address, 	etc., 	while certainly offensive if true,
did 	not 	involve 	unwelcome 	touching.
Another 	major 	difference 	between 	the 	Payton 	and Moore 	cases
was 	that Moore had 	already been disciplined once, 	in the
Cardenas 	incident, 	for 	behaving 	in 	an 	inappropriate manner with
sexual 	overtones. 	It was 	feared by Meigs, 	who 	initiated the
investigation of 	Cooper's 	complaints, 	that 	another 	similar
offense 	could 	open 	the 	State 	to 	liability.
Based on 	the 	foregoing, 	it 	is 	concluded that 	there was 	no
disparate 	treatment. 	While 	there 	are obviously some
similarities 	between the 	two 	cases, 	the 	substantial 	differences
described 	above 	preclude 	a 	finding 	of 	disparate 	treatment.
These differences, 	not unlawful motive, 	led to the Department's
different 	approaches 	to 	the disputes.
Arguments 	of 	disparate 	treatment 	concerning 	other 	employees
are similarly unpersuasive. 	The Cooper-Smart 	incident, 	even if
true, 	was 	a one-time occurrence which 	involved no 	actual
touching. 	After 	Smart 	apologized 	the matter was 	dropped. 	The
assertion that Cooper 	tried 	to 	have 	sex with 	a client, 	(Cooper
denied it), 	also 	involved no touching. 	Even if true, 	it too
was 	a one-time occurrence. 	Unlike the Cooper-Moore 	incidents,
no 	formal 	complaints were 	filed 	in either 	case.
In his 	second 	argument, 	Moore contends 	that 	the
investigations 	of 	the 	complaints were 	cursory 	and 	conducted 	in
36

a 	manner 	which 	violated 	the 	Rehabilitation Administrative
Manual 	(RAM), 	the departmental 	rules 	and procedures governing
investigation 	of 	adverse 	actions 	and 	sexual 	harassment
complaints. 	Departure 	from established 	procedures 	or 	standards
may permit 	the 	inference 	of 	an unlawful 	motive. 	Novato Unified
School District, 	supra, 	p. 	7. 	Similarly, 	a faulty
investigation may 	raise 	the 	inference 	of 	unlawful 	motivation.
Baldwin 	Park Unified School 	District 	(1982) 	PERB Decision
No. 	221, 	p. 	16. 	In this case, 	however, 	any deviation from the
RAM was 	harmless 	and 	the 	investigation was 	more 	than 	adequate.
The 	RAM contains 	several 	statements 	of 	supervisory
responsibility 	in 	investigating 	adverse 	actions 	which 	are
relevant 	here. 	RAM section 	23741 	states 	that
When 	adverse 	action 	is 	necessary the
supervisor 	should 	obtain 	an 	accurate
statement 	of 	the 	disciplinary problem 	and
collect 	full 	information on the case.
That 	section also 	sets 	out 	a 	series 	of 	five basic questions 	to
be 	answered 	in 	"stating 	the 	case."20
RAM section 	23471 	also 	states 	that
It 	is 	the 	supervisor's 	responsibility to
gather the facts, 	investigate, 	and report
the 	incident(s) 	with 	a 	recommended course of
action.
20 Examples 	of 	questions 	to be 	asked 	are: 	Does 	the case
call 	for 	adverse 	action? 	What 	is 	the 	exact 	nature 	of 	the
violation? 	Under what 	conditions 	did 	it 	occur? 	When 	and 	how
often 	have 	the 	violations 	occurred?
37

Section 	23653.1, 	describes 	supervisory 	responsibility 	during
the 	"fact-gathering 	interviews" 	as 	follows: 	"The 	supervisor
should 	interview 	the 	employee to 	determine whether 	the 	employee
offers 	any explanation which might 	refute 	or 	mitigate 	any or
. .
all of 	the charges."
RAM 	section 	23742 	further 	describes 	the 	"fact 	gathering"
process. 	It 	sets 	out 	a 	long 	list 	of 	general 	tasks 	a 	supervisor
"should" 	do when 	in the 	process 	of 	"gathering 	the 	facts 	about
an 	incident 	of 	improper 	employee 	conduct."21
In 	a 	highly technical 	reading 	of 	the RAM sections 	cited
above, 	Moore 	argues 	that 	the entire 	investigative
responsibility 	for 	investigating 	adverse 	actions 	lies 	at 	the
supervisory 	level. 	When Meigs 	took the Cardenas 	matter 	out 	of
Miller's 	hands, 	contends 	the Charging Party, 	the RAM was
violated, 	thus providing evidence of unlawful motive. 	This
argument 	is 	not 	persuasive.
At 	the 	hearing 	the 	Charging 	Party 	and 	the 	Respondent
stipulated 	that 	the 	precise 	letter 	of 	the 	RAM was 	not 	followed
during 	the 	investigations 	of 	the charges 	against Moore. 	The
respondent 	takes 	the position 	that 	the 	failure 	to 	rigidly
adhere 	to 	the 	RAM procedures 	is 	not 	fatal 	to 	the 	investigations
or 	to 	its case. 	The RAM procedures, 	according 	to 	the
21According 	to 	RAM section 23742, 	the 	supervisor 	"should"
do 	such things 	as: 	check the written 	record; 	make efforts 	to
reconcile conflicting 	statements; 	make 	sure 	the employee 	knew
the 	applicable standards 	of behavior; 	etc.
38

respondent, 	are only guidelines; 	they are not 	investigatory
steps which 	are 	set 	in concrete.
The plain 	language 	of 	the RAM sections 	at 	issue 	here
supports 	the 	respondent. 	While 	the RAM places 	general
responsibility 	for 	investigating 	possible 	adverse 	actions 	at
the 	supervisory level, 	it- . does 	not mandate 	any particular 	type
of 	investigation be 	conducted. 	The 	supervisor 	is 	given great
discretion in terms 	of what 	he or 	she 	"should" 	do 	in the 	fact
gathering 	process. 	It 	is 	under 	this 	reading 	of 	the 	applicable
RAM sections 	that 	the Department's 	conduct 	is 	evaluated.22
As 	I 	have 	already found, 	Meigs 	told Miller 	on
December 18, 	1985 	to forward the materials 	to him. 	This might
be viewed 	as 	cutting 	the 	immediate 	supervisor 	out 	of 	the
process, 	but Meigs 	had valid 	reasons 	for doing 	so. 	He 	felt
Cardenas' 	allegations were 	serious 	and Miller 	should 	have 	1- : .
reported 	it 	earlier. 	Given the serious 	nature of 	the
allegations, 	Meigs 	also 	felt 	someone with more experience
should 	review the matter. 	In any event, 	Miller 	testified that
his 	actual 	investigation had ended 	as 	of 	December 	18, 	1985 	and
22 Respondent's 	interpretation 	of 	the 	permissive 	nature 	of
the RAM sections was 	supported 	at 	the hearing 	by Meigs, 	Shaw
and Englebach. 	Meigs 	said 	the RAM is 	to 	be used 	as 	a 	"guide
depending 	on 	the 	circumstances." 	Englebach 	also 	characterized
the RAM as 	a 	"guideline" 	for 	investigators. 	Shaw too 	testified
that 	the 	RAM affords 	flexibility during 	investigations. 	He
said the goal 	is 	to 	capture 	the 	"essence" 	of 	the case.
39

the 	necessary documentation had 	been 	assembled. 23 It 	is
unclear what else, 	if anything, 	Miller could have done. 	Thus,
even under Moore's 	interpretation 	of 	the 	relevant 	RAM sections,
the 	procedure was 	not defective.
The 	remainder 	of 	the 	investigation 	at Meigs' 	level
consisted 	of 	evaluating 	the 	documentation 	gathered 	by Miller,
and consulting with Brown, 	Hawkins, 	and Englebach, 	all more
experienced 	in 	such matters. 	Meigs 	clearly had 	a 	right 	to 	seek
such 	advice. 	See RAM section 23747.
After 	reviewing 	the 	documents 	and 	completing 	the
consultations, 	Meigs 	recommended Moore be given a 	formal 	letter
of 	reprimand 	and 	required 	to write 	a 	sincere 	letter 	of 	apology,
not 	particularly harsh 	penalties 	under 	the 	circumstances.
Meigs 	found 	"most 	damaging" 	Moore's 	inability to 	recall 	several
of 	the 	so-called 	touching 	aspects 	of 	the Cardenas 	case.
There 	is 	nothing 	in this 	process which 	suggests 	either 	a
cursory 	approach or 	a 	significant 	deviation 	from RAM
guidelines. 	Miller gathered the 	relevant 	facts, 	including
Moore's 	version of 	the 	incidents, 	and passed 	them on to Meigs.
With these 	facts 	in his 	possession, 	Meigs 	consulted more
experienced 	people 	(Englebach was 	his 	immediate 	supervisor;
Brown was 	the civil 	rights 	officer; 	and Hawkins was 	the
. . .
23This 	included Cardenas' 	complaint to Knox, 	Knox's
letter 	to Miller, 	and Miller's 	summary of 	his meeting with
Moore, 	including Moore's version of 	the 	incident with
Cardenas. 	Miller 	had not 	talked 	to Cardenas, 	but 	her version
had 	been 	recorded 	earlier 	in 	her 	complaint 	to 	Knox.
40

employee 	relations 	officer), 	and 	recommended 	a 	formal 	reprimand
because of 	the 	seriousness 	of 	the charge. 	And there 	is 	no
evidence 	that 	any of 	these 	individuals 	harbored 	an 	unlawful
motive. 	While honest disagreements 	may exist 	about 	different
ways 	to 	investigate such a case, 	these do not 	transform Meigs'
method 	to one which suggests 	an unlawful 	motive.
A 	similar 	analysis 	applies 	to 	the 	investigation 	of 	the
Cooper 	complaint. 	Upon 	being 	approached 	by Cooper with
allegations 	of 	sexual harassment, 	Stoll 	did not 	jump
prematurely 	at 	the 	chance 	to 	initiate 	an 	investigation 	into 	the
matter. 	He moved 	cautiously, 	advising Cooper 	to 	think
seriously about filing 	a 	formal 	complaint. 	It was 	only after
Cooper 	later decided 	to 	proceed, 	and 	told Meigs 	of 	her
complaints, 	that 	Brown was 	contacted 	and 	the 	investigative
process 	initiated.
Charging 	Party 	argues 	that 	the 	processing 	of 	Cooper's
complaint violated RAM section 23631.6, 	which 	states:
Any employee who 	feels 	he 	or 	she 	is 	being
sexually harassed 	is 	encouraged 	to:
1. 	Make the person aware 	that 	their
behavior 	is 	unwanted 	and 	inappropriate.
If 	it continues,
2. 	Discuss 	the 	situation with the
appropriate 	supervisor, 	Women's 	Program
officer, 	Affirmative Action Officer 	or Civil
Rights Officer. 	In cases where their
immediate 	supervisor 	is 	the harasser,
his/her 	supervisor 	is 	appropriate.
If 	the 	sexual 	harassment 	continues,
41

3. 	File 	a 	sexual harassment complaint.
Complaints 	will 	be 	processed 	through 	the
Department's 	existing 	discrimination
complaint process 	(RAM 23610-23623).
The 	investigation did not 	run 	afoul 	of 	these 	provisions.
First, 	Cooper 	told Stoll 	that 	she had 	already tried, 	without
success, 	to make Moore 	aware 	that 	his 	behavior was 	unwanted 	and
inappropriate. 	Second, 	Cooper discussed her 	complaints with
Stoll 	and Meigs. 	Meigs 	felt 	that 	the 	allegations were 	so
serious 	that 	he 	"encouraged" 	her 	to 	file 	a 	formal 	complaint
with the civil 	rights 	officer. 	There 	is 	nothing 	in the RAM
which compels 	a 	different 	approach. 	The RAM merely
"encouraged" 	Cooper 	to 	discuss 	her 	complaints with her
immediate supervisors, 	which she did. 	She was 	not 	required to
refrain 	from filing 	the complaint, 	a 	step 	she 	(not Meigs)
decided 	to 	take 	after meeting with Meigs. 	Once 	this 	decision
was made, 	an 	investigation was 	required.
The 	investigation 	itself was 	quite 	extensive. 	Two
investigators were 	brought 	in 	from outside 	the 	Santa 	Cruz
office. 	Enyart 	interviewed Meigs, 	Stoll 	and Cooper, 	as well 	as
several 	other employees. 	He 	reported his 	findings 	to Kerosec.
Brown 	too 	interviewed or 	attempted 	to 	interview twelve 	people.
Among 	those 	he 	interviewed were Moore 	and 	Cooper.24
24	24Moore	Moore 	claims 	his 	interview with 	Brown was 	conducted 	in
violation of 	his 	"Weingarten" 	right 	to 	representation. 	See
NLRB v. Weingarten. 	Inc. 	(1975) 420 U.S. 	251, 	[88 LRRM 2689],
which grants 	to 	an employee 	the 	right 	to 	have 	a union
representative 	present 	at 	an 	investigatory 	interview with 	the
employer which 	the 	employee 	believes 	may 	result 	in discipline,
42

However, 	the employer's 	obligation 	to 	honor 	this 	right must 	be
triggered by 	an 	employee 	request 	for 	union 	representation.
State of California 	(Department 	of 	Forestry) 	(1988) 	PERB
Decision No. 	690-S. 	In this case there 	is 	no evidence that
Moore made 	such 	a 	request. 	Therefore, 	even 	assuming 	the
interview with Brown was 	a Weingarten-type meeting, 	Moore's
argument 	is 	rejected.
At 	the July 	11, 	1986 	meeting 	both Enyart 	and 	Brown were
given 	a 	full 	opportunity to 	report 	their 	findings. 	Cooper's
allegations 	were 	thoroughly discussed. 	Neither 	Brown 	nor
Enyart, 	based on their 	investigations, 	described Moore 	in 	a
favorable 	light. 	Essentially, 	Brown 	reported 	that Moore was
equivocal 	in 	responding 	to 	the 	allegations, 	and both Brown- an	. .. 	d
Enyart 	confirmed 	that Cooper was 	credible. 	The 	importance 	of
the Cardenas 	case was 	also discussed. 	As 	a 	result 	of 	the
discussion at 	the July 11 meeting, 	Solstad, 	Kerosec 	and
Englebach 	recommended 	that Moore 	be 	terminated. 	Attorney
Solstad was 	convinced 	that 	the 	allegations 	could withstand
appellate challenge. 	Soon thereafter, 	Shaw and Burns 	approved
the 	recommendation 	and 	Shaw 	signed 	the 	termination 	letter.
Later, 	in August 	1986, 	Director Fontanoza, 	based on Brown's
investigative 	report, 	upheld Cooper's 	sexual 	harassment
complaint.
It 	is 	recognized 	that 	the primary 	investigators 	of 	the
Cooper 	complaint 	proceeded 	on 	separate 	procedural 	tracks 	under
the RAM, 	Brown 	looking 	into 	the 	sexual 	harassment 	complaint 	and
Enyart 	concerned with 	the 	adverse 	action. 	As 	Charging 	Party
points out, 	this 	resulted 	in some jurisdictional 	overlap. 	This
43

somewhat 	unusual 	approach had 	never 	been used, 	and 	it 	resulted
in shortcomings which, 	ordinarily, 	might be viewed with
suspicion. 	For 	example, 	the person charged with 	investigating
the 	adverse 	action 	(Enyart) 	never 	even 	interviewed Moore.
However, 	in 	this 	instance Enyart's 	failure 	to 	interview Moore
did not 	result 	in 	a 	gap 	in the 	investigation concerning Moore's.
response to 	the 	allegations. 	Because of 	the dual 	nature of 	the
investigation, 	Brown 	reported on Moore's 	response. 	And 	there
is 	no 	independent 	evidence 	that 	the dual 	nature 	of 	the
investigation otherwise 	undermined 	a 	full 	development 	of 	the
facts. 	In fact, 	it 	appears 	that 	it may have 	resulted 	in a more
thorough development of 	the 	relevant 	facts.
Like the 	investigation of 	the Cardenas 	complaint, 	this
investigation was 	not cursory, 	nor 	did 	it 	deviate 	from the RAM
in any significant manner. 	There may have been equally
effective 	approaches 	to 	investigating 	the Cooper 	case. 	That
the Department did not 	choose 	another 	approach, 	which may have
been more 	acceptable 	to Moore, 	does 	not 	transform the
investigation described 	above 	into 	one which 	suggest 	an
unlawful motive.
In his 	third 	argument, 	Charging 	Party asserts 	that 	the
"timing 	is more than suspicious; 	it 	is outrageous." 	He points
to 	the 	fact 	that Meigs 	took only one day to 	recommend 	a 	formal
reprimand 	for 	the 	Cardenas 	incident. 	The 	reprimand 	followed 	by
only two days Charging Party's visit 	to Los Angeles, 	as ROC
chairperson, 	to 	review the computerization pilot 	project. 	In
44

addition, 	despite Meigs 1 hasty decision to discipline Moore, 	it
took several 	months 	for 	the 	Department 	to 	issue 	the 	actual
letter 	of 	reprimand.
Charging 	Party 	also 	argues 	that 	the 	termination 	came 	"on
the heels" 	of 	the Clute petition. 	He 	asserts 	that Cooper's
complaint 	"was 	solicited" 	shortly 	after 	the 	petition was
presented 	to Meigs, 	and 	the exchange of 	correspondence between
Moore 	and Martin 	also 	occurred 	about 	this 	time. 	Finally,
Charging 	Party cites 	as 	evidence 	of 	unlawful 	motive 	the
discussion, 	on July 3, 	1986, 	(before the 	investigation was
complete) 	between Meigs 	and Englebach concerning 	the possible
discharge of Moore.
The 	close 	timing of 	an employer's 	action 	in 	relationship 	to
an employees 	protected 	activity 	is 	evidence 	from which 	an
unlawful 	motive may be 	inferred. 	North 	Sacramento 	School
District 	(1982) 	PERB Decision No. 	264. 	But here Charging
Party's 	arguments 	are not 	persuasive.
There 	is 	nothing 	unusual 	about Meig's 	quick 	action 	in
recommending 	a 	formal 	reprimand 	in the Cardenas 	case. 	He
viewed 	the matter 	as 	serious 	and 	had 	the 	benefit 	of Miller's
investigation upon which 	to 	base 	his 	recommendation. 	Meigs
simply cannot 	be 	faulted 	for 	taking 	decisive 	action 	in 	this
area.
Further, 	it was 	pure coincidence that Meigs 1 recommendation
came 	only two 	days 	after Moore went 	to Los Angeles 	to 	review
the computerization pilot 	project. 	It 	is 	unclear 	if 	anything
45

remarkable happened 	in Los Angeles, 	or 	if Meigs 	even knew that
Moore made 	the 	trip. 	Even 	accepting Moore's 	assertions 	that
Meigs 	knew of 	the visi	24 	t 	to 	Los Angeles 	and 	that 	the visit
coincided with Meigs' 	recommendation, 	the 	relationship of 	these
events 	was 	dictated more 	by Knox' letter 	to Miller 	initiating
the complaint 	than anything else. 	Therefore, 	it 	seems 	highly
unlikely that Meigs would 	not 	have made 	the 	same 	recommendation
had Moore 	not 	gone 	to Los Angeles. 	After 	viewing Meigs 	on 	the
witness 	stand, 	it 	is my opinion that Moore's 	role 	as ROC
Chairperson made 	little, 	if any, 	impact on Meigs.
The 	Department 	probably 	should 	have 	acted 	more 	quickly 	in
issuing 	the 	actual 	letter 	of 	reprimand 	to Moore. 	But 	failure
to do 	so 	seems 	harmless 	in the context 	of 	assessing 	the
Department's motive. 	It 	certainly carries 	limited probative
weight 	that 	some unknown person(s) 	in 	the 	personnel 	office were
less 	than diligent 	in preparing 	the 	necessary paperwork 	to
discipline Moore.
. '.
As 	Charging 	Party points 	out, 	Cooper's 	complaint 	came
shortly 	after 	the Clute 	petition was 	submitted 	to Meigs.
However, 	neither Meigs nor Stoll 	"solicited" 	the complaint, 	as
Charging Party contends. 	It was 	Cooper who 	first 	approached
Stoll 	and 	then met with Meigs. 	The 	proximity 	in 	time 	between
the 	complaint 	and 	the Clute 	petition was 	created 	by Cooper's
decision to 	file 	the 	formal 	complaint. 	The 	temporal
relationship 	between 	the 	complaint 	and 	the 	petition was 	not
created 	by either Meigs 	or 	Stoll.
46

The 	same 	analysis 	applies 	to 	the Moore-Martin
correspondence. 	The exchange 	of 	letters 	occurred 	about 	the
same time 	as 	the 	filing of 	the complaint 	by Cooper. 	Moore's
letter 	to Martin was 	sent 	on June 	20, 	and Cooper 	first
approached 	Sto11 	on June 	26 	about 	her 	complaint 	against Moore.
But 	it was Cooper's 	idea 	to 	raise the matter 	initially and,
after considering 	it more 	fully at 	Stoll's 	suggestion, 	she
decided 	to 	proceed. 	No 	management 	representative 	controlled
the 	sequence of 	events.
Finally, 	in early July 1986, 	before the 	investigation of
Cooper's 	complaint 	had been completed, 	the 	possibility of
discharge was 	discussed 	by Englebach 	and Meigs. 	However, 	the
discussion was 	purely a 	hypothetical 	one; 	dismissal would be
appropriate if 	the 	allegations 	against Moore were
substantiated. 	This 	represents 	nothing more 	than 	a 	discussion
two management 	officials 	might 	ordinarily have 	about 	the
possible outcome of 	a serious matter. 	Realistically, 	no
predetermined decision 	to 	terminate Moore 	can 	be 	read 	into 	this
discussion.
Based on the foregoing, 	it 	is 	concluded that 	the timing of
events 	in this 	case do 	not 	support 	an 	inference of 	unlawful
motive. 	Even 	if 	these events 	permitted 	the 	inference of 	an
unlawful motive, 	however, 	the ultimate outcome would not be
affected because 	"coincidence in time", 	by itself, 	is
insufficient 	to 	prove unlawful motivation. 	Charter Oak Unified
School District 	(1984) 	PERB Decision No. 	404.
47

Based on the 	foregoing, 	it 	is determined that 	an unlawful
motive 	played 	no 	role 	in the Department's 	decisions 	to
reprimand and terminate Moore. 	Therefore, 	it 	is 	concluded that
the Charging 	Party has 	not 	established 	a 	prima 	facie 	case 	and
the 	unfair 	practice 	charge 	is 	dismissed.
EMPLOYER 	JUSTIFICATION
Even assuming, 	as Charging Party contends, 	that 	the
evidence 	showed 	an unlawful motive, 	this would 	not 	change 	the
outcome here. 	Under 	the 	test 	for discrimination 	set 	forth 	in
Novato Unified 	School District, 	supra, 	once the Charging Party
raises 	the 	inference 	that 	the 	adverse 	actions were 	improperly
motivated- 1.	, 	the 	burden shifts 	to 	the Respondent 	to 	show that 	it
would have 	terminated Moore 	regardless 	of 	his 	protected
activity. 	In these 	circumstances 	the Respondent 	has 	the burden
of 	producing 	evidence 	regarding 	the 	basis 	for 	its 	decision 	to
discipline. 	Based on the 	findings 	and conclusions 	of 	the 	State
Personnel 	Board, 	as described more 	fully above, 	it 	is concluded
that, 	assuming the existence of 	a prima facie case, 	the
Respondent 	has 	satisfied 	its 	burden. 	Moore would 	have 	been
disciplined 	for 	the 	Cardenas 	complaint 	and 	terminated 	for 	the
Cooper 	complaint 	even 	if 	he 	had 	not 	engaged 	in protected
conduct. 	Protected 	activity does 	not 	immunize 	an employee 	from
discipline which 	is 	otherwise plainly 	appropriate. 	See 	State
of California 	(Department 	of 	Developmental 	Services) 	(1982)
PERB Decision No. 	228-S 	(discharge of union activist 	for, 	among
48

other 	things, 	sexually abusing 	a 	patient 	in a 	State 	hospital
upheld.)
CONCLUSION 	AND 	ORDER
It 	is 	concluded 	that 	the charging 	party has 	not 	established
a 	prima 	facie case under 	the Novato 	standards. 	Charging 	Party
has 	shown only that 	he 	engaged 	in 	protected 	activity under 	the
Act, 	and 	that 	some Department 	officials were 	aware of 	that
activity. 	However, 	he has 	failed to 	show that 	any Department
officials 	possessed 	an unlawful 	motive 	in 	imposing 	the 	adverse
actions 	contested here. 	Lastly, 	even 	if 	Charging Party had
established 	a 	prima 	facie case under 	the Novato 	standards, 	the
Department 	has 	shown, 	based on the 	findings 	and conclusions 	of
the 	SPB, 	that 	it 	had valid 	reasons 	for 	imposing 	the 	adverse
actions 	and Moore would 	have 	been 	terminated 	even 	if 	he 	had 	not
engaged 	in 	protected 	conduct.
Based 	on 	the 	foregoing 	and 	the entire 	record, 	Unfair
Practice Charge No. 	SF-CE-85-S 	is hereby DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this 	Proposed Decision and Order 	shall
become 	final 	unless 	a party files 	a 	timely statement 	of
exceptions with 	the 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento within 20 days 	of 	service of 	this 	Decision. 	In
accordance with PERB Regulations, 	the 	statement 	of 	exceptions
should 	identify by page 	citation 	or 	exhibit 	number 	the 	portions
of 	the 	record, 	if 	any, 	relied upon for such exceptions. 	See
California Administrative Code title 	8, 	part 	III,
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section 	32300. 	A document 	is 	considered 	"filed" 	when actually-
received before 	the close of 	business 	(5:00 	p.m.) 	on the 	last
day set 	for filing, 	". 	. 	. 	or when sent by telegraph or
certified 	or 	Express 	United 	States 	mail, 	postmarked 	not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Code of
Civil 	Procedure 	section 	1013 	shall 	apply. 	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 or 	filed
with 	the 	Board 	itself. 	See California Administrative Code,
title 8, 	part III, 	sections 32300, 	32305, 	and 32140.
Dated: 	July 28, 	1988 Fred 	D'Orazio
Administrative 	Law Judge
50