San Diego Unified School District (PERB 0885E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELIZABETH I. 	BADDOUR,
Charging 	Party,
v.
SAN DIEGO UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-1986
PERB 	Decision No. 	885
June 	14, 	1991
Appearances: 	George L. 	De La Flor, 	Attorney, 	for Elizabeth I.
Baddour; 	Jose A. 	Gonzales, 	Assistant General Counsel, 	for
San Diego 	Unified 	School 	District.
Before Hesse, 	Chairperson, 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before 	the Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by 	the
San Diego 	Unified 	School 	District 	(District) 	to 	a 	decision 	issued
by 	a 	PERB 	administrative 	law 	judge 	(ALJ) 	after 	the 	case 	had been
remanded 	to 	him pursuant 	to 	the 	Board 	order 	issued 	in 	the 	case 	of
San Diego Unified 	School 	District 	(1987) 	PERB Decision No. 	631.
Although 	the 	District 	had 	filed 	numerous 	exceptions 	to 	the ALJ's
proposed decision, 	issued October 31, 	1986 	(Baddour I) , 	in which
the ALJ 	reinstated Elizabeth Baddour 	(Baddour) 	with back pay, 	the
Board 	focused 	solely on 	the 	issue 	of 	the ALJ's 	failure 	to
address 	the 	issue 	of 	collateral 	estoppel 	and remanded. 	the 	case 	to
the ALJ 	for a determination on that 	issue. 	On remand, 	the ALJ
found 	that 	collateral 	estoppel 	does 	not 	apply 	to 	bar 	continued
. .' .'.
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litigation before 	PERB 	of 	the 	matter.1 In the 	exceptions 	it
filed to 	the ALJ's proposed decision in Baddour 	II, 	the 	District
contends 	that 	the ALJ 	erred 	in 	finding 	collateral 	estoppel 	does
not 	apply, 	and requests 	that 	the 	Board reverse 	the ALJ's
determination on 	the 	collateral 	estoppel 	issue 	and 	rule 	on 	the
remaining 	issues 	raised 	in 	the 	exceptions 	it 	filed 	to 	the ALJ's
.. .
proposed decision 	in Baddour 	I.
We 	have 	carefully 	reviewed 	the 	entire 	record 	in 	this 	case,
including the proposed decisions 	in Baddour 	I 	and Baddour 	II, 	all
available transcripts, 	exhibits, 	exceptions and responses; 	have
heard oral 	argument; 	and, 	in accordance with the discussion
below: 	(1) 	affirm the ALJ's 	finding 	in Baddour 	II 	that 	the
doctrine 	of 	collateral 	estoppel 	does 	not 	preclude 	PERB 	from
consideration of 	the 	other 	issues 	raised 	in 	the 	exceptions 	to 	the
proposed decision in Baddour 	I; 	and 	(2) 	reverse 	the ALJ's
conclusion 	in Baddour 	I 	that 	the 	District 	violated 	the
Educational 	Employment 	Relations Act 	(EERA or A c t ) 2 section
3543.5(a) 	by discriminating against 	Baddour because 	of 	the
exercise 	of 	her 	EERA rights.
The proposed decision 	issued October 	5, 	1990 	by 	the ALJ 	in
San 	Diego Unified School District , 	Case No. 	LA-CE-1986 	shall 	be
referred to herein as 	"Baddour 	II."
2EERA is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated 	all 	statutory 	references 	herein 	are
to the 	Government 	Code.
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STATEMENT 	OF 	THE 	FACTS
The 	following 	facts 	are 	summarized 	from 	the 	ALJ's 	proposed
decision, 	with 	some 	additional 	information 	drawn 	from 	the 	record
and added - for clarification.
Introduction
Baddour began working 	for 	the 	District 	in 	1975 	or 	1976 	as 	a
teacher's 	aide, 	and 	later became 	a 	school 	bus 	driver. 	The 	. . .
District 	transports 	only 	special 	education 	students 	and 	students
involved 	in 	its 	racial 	integration programs. 	In 	1979, 	Baddour
became 	a 	temporary, 	hourly 	school 	bus 	driver. 	In September 	1980,
she 	became 	a 	classified monthly bus 	driver with 	a 	one 	year
probationary period. 	At 	this 	time, 	Charles 	Dion 	(Dion) 	became 	'
her 	immediate 	supervisor. 	Baddour's 	duties 	consisted 	of
transporting 	severely 	emotionally-disturbed 	children 	between
their homes 	and 	schools. 	Throughout 	the 	relevant 	time 	period,
the 	exclusive 	representative 	for 	the 	monthly 	bus 	driver 	employees
of 	the 	District 	was 	the 	Service 	Employees 	International 	Union,
Local102 	(SEIU or Union) .
From November 	1980 	until 	the 	time 	that 	she was 	terminated
from her 	employment with 	the 	District, 	in June 	of 	1983,
Baddour was 	involved 	in 	a 	series 	of 	incidents 	with members 	of 	the
public 	and various 	employees, 	both 	supervisorial 	and 	rank-and-
file. 	A 	summary of 	those 	incidents 	follows.
Riley 	School 	Students/Parents 	Conflict
One morning 	in mid-November 	1980, 	two 	student passengers 	had
conflict 	on Baddour's 	school 	bus. 	In 	the 	afternoon 	the 	same
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students 	again caused a disturbance, 	and 	threatened 	to beat
Baddour. :" Baddour arranged to meet 	the parents 	of 	these 	students
at 	the bus 	stop. 	The parents were 	angry and hostile 	and 	reported
Baddour's 	behavior 	to 	the 	District. 	Baddour also 	reported 	the
incident 	to Dion, 	her 	supervisor, 	and requested a 	transfer to
another bus. 	She was 	subsequently 	transferred 	to 	the 	integration
section 	of 	the 	transportation department 	under 	the 	supervision of
Stan Ross 	(Ross).
Performance 	Evaluation — 	1980
In December of 	1980, 	Baddour was due 	to receive her three-
month probationary performance 	evaluation 	report. 	As 	Dion had
been her 	supervisor 	for the majority of 	those 	three months, 	he .
was 	asked to prepare 	the 	report. 	Dion met with Baddour 	to
discuss 	the 	report, 	and 	informed her 	that 	she 	needed 	improvement
in her contacts with school 	staff, 	the public, 	and the 	students.
He 	also 	negatively 	commented upon 	the 	fact 	that 	she 	would 	not 	use
the 	school-sponsored behavior modification system. ... Baddour
admitted 	she 	had 	not 	used 	the 	system because 	she 	believed 	that
the 	system was 	ineffective. 	In the 	course of 	the 	discussion,
Dion 	referred 	to 	the 	report 	he 	had 	received 	from 	the 	parents 	of
the 	high 	school 	students 	who 	had 	the 	mid-November 	conflict 	on
Baddour's bus. 	Baddour became very upset. 	In reviewing the
report, 	she 	noticed 	strips 	of 	tape over portions 	of 	the 	first
page 	of 	the 	report, 	masking derogatory material 	that 	remained
intact 	on the 	two bottom copies. 	She 	refused 	to 	sign the 	report
and asked to 	see Dan Stephens 	(Stephens), 	the Director of 	the
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Transportation Department. 	When Dion 	told her 	that 	she 	would 	not
be able 	to 	see Stephens, 	she 	jumped up, 	grabbed all 	three 	copies
of 	the 	evaluation 	report 	and 	hurriedly walked 	towards 	the 	next
building where 	Stephens' 	office was 	housed. 	Once Dion caught up
to her outside Stephens' 	office, 	he asked her to return the
report and, 	when she 	refused, 	requested that 	the 	school's
security personnel 	be 	called. 	Baddour 	testified 	she 	felt
physically 	threatened by Dion, 	so much 	so 	that 	she 	relied on this
incident 	to 	support 	her 	refusal 	to meet with Dion 	several 	years
later. 	Dion admitted 	to being 	angry at 	the 	time 	and 	to 	gesturing
or 	talking with his 	hands, 	but 	denied threatening or making 	any
threatening.- moves 	toward Baddour. 	.
On February 	11, 	1981, 	Baddour filed a grievance alleging
violations of 	the collective bargaining agreement 	(CBA) , 	in that
Dion 	failed 	to 	counsel 	her prior 	to 	the 	evaluation 	and 	failed 	to
give 	her an opportunity 	to 	review and discuss 	the 	report. 	The
grievance was 	dismissed as 	untimely. 	After 	she 	filed 	the
February 	11 	grievance, 	her hours were 	reduced and 	she was 	sent 	to
work with bus 	dispatcher, 	Donald Duggan 	(Duggan) 	at 	another bus
yard. 	She 	asked Ross 	if 	he 	knew that 	Duggan had manhandled her
in the past. 	Ross 	responded he was 	aware of 	that 	allegation, 	but
reiterated 	that 	this 	was 	her 	new assignment.
Duggan's 	general 	character was 	testified 	to 	by 	a 	number 	of
Baddour's witnesses, 	none 	of whom had anything good 	to 	say about
him. 	The 	testimony 	revealed 	the 	following 	conflicts 	between
Baddour and, Duggan: . s
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1. 	Baddour testified Duggan 	"manhandled" 	her 	in 	1980.
Although no 	specifics were 	given, 	the ALJ drew the 	inference 	that
the handling was of a sexual nature; .
2. 	Evelyn Bowen, 	a District bus driver, 	observed Duggan
making 	an obscene 	finger 	gesture 	at 	Baddour;
3. 	Lynn Bonney 	(Bonney) , 	a District trainer and bus driver,
in October 	1982 , observed Duggan purposely wait 	for Baddour 	to
walk all 	the way to her bus, 	200 	to 	300 	feet 	away, 	before 	calling
her 	and 	giving her 	a piece 	of 	paper 	that 	he 	had 	in his 	hand 	the
entire 	time. 	Once 	Duggan became 	aware 	that 	Bonney had observed
his 	actions, 	he 	started up 	an obscene 	tirade 	against Baddour.
Bonney ; subsequently reported the 	incident 	to management ;
4. 	Bonney 	testified 	she 	had 	several 	conversations 	with Duke
Williams 	(Williams), 	then the 	transportation services director,
about 	Baddour, 	during which Williams 	made 	several 	negative
comments 	about Baddour such as 	that 	she was 	crazy, 	unstable, 	and
unsuitable 	for 	the position of 	bus 	driver. 	On one particular
occasion, 	he 	mentioned 	that 	Baddour would not 	attend a
performance 	evaluation without 	bringing 	in 	the 	union. 	Bonney
testified that Williams 	stated: 	"She's 	got 	to go 	and get 	the
union or 	get 	somebody outside 	the 	district 	every 	time 	we 	have 	a
talk with her, 	you know. 	You 	can't 	even 	just 	counsel 	with her
Doesn't 	she 	know that 	we'll 	handle 	everything? 	We're 	like
family here. 	We'll 	handle 	everything, 	right here within the
department." 	Bonney 	further 	testified 	that 	Williams 	was 	very
angry 	and upset when he 	made 	these 	statements;
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5. 	Baddour 	and Duggan had various 	disagreements 	regarding
Duggan's 	method of 	keeping 	time 	records 	by hand. 	A time 	clock
was 	eventually 	installed. 	Whether 	the 	time 	clock was 	installed
as 	a 	result 	of 	Baddour 	contacting 	the 	union 	is 	unclear--the
District 	denies 	any knowledge 	of 	Baddour's 	involvement 	in 	the
matter; 	Baddour's witnesses 	suggest 	she 	may have 	been 	involved,
and 	the ALJ 	did not 	resolve 	the 	credibility 	conflict;
6. 	On March 6, 	1981, 	Baddour went, 	with her SEIU
representatives, 	to 	see management 	regarding the harassment 	she
perceived she was 	receiving 	from Duggan. 	James 	Rhetta 	(Rhetta),
the 	District's 	Director of 	Classified 	Personnel, 	informed her he
would check out her 	complaints 	about 	Duggan, 	but 	reminded her 	she,
was 	just 	a probationary 	employee;
7. 	The day after her meeting with Rhetta, 	a 	tachograph
check was 	placed on her 	assigned bus. 	For 	the 	next 	three 	or 	four
months, 	she 	repeatedly had those 	checks 	on her bus. 	The
testimony 	indicated 	that 	although 	tachograph 	checks 	are 	routine,
the 	use 	of 	the method 	for 	three 	to 	four months 	for 	any one 	driver
is unusual;
8. 	On May 	11, 	1981, 	Duggan filed an employee 	complaint
against 	Baddour 	alleging 	"harassment 	or discrimination" 	due 	to
her 	complaints 	about 	the 	manner 	in which he 	maintained 	the 	time
records. 	In the 	complaint, 	Duggan noted that 	Baddour threatened
him by going 	to 	the 	union. 	The 	record does 	not 	disclose 	the
outcome of 	the 	complaint;
. I..
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9. 	There 	was 	testimony 	from Ken McLaughlin 	(McLaughlin)
that he 	observed Duggan notify Baddour, 	over the 	radio, 	that her
car had been hit. 	McLaughlin 	testified 	that 	Duggan was 	"in 	good
spirits 	about 	the whole 	thing."
Baddour's 	First 	Termination 	and 	Resultant 	Reinstatement
August 	to 	November 	1981
In 	late May or early June 	1981, 	Baddour was 	given a
performance 	evaluation which 	recommended 	her 	termination 	on 	the
grounds 	that 	she 	had been 	late 	to work 	and had burned 	a 	parking
brake 	on the bus. 	Although 	she 	had a work order 	showing 	that 	the
parking brake was 	defective 	prior 	to 	the 	date 	she 	was 	supposed 	to
have 	burned 	it, 	Baddour 	received a 	notice 	of 	termination on
August 6, 	1981.
Baddour 	filed 	a 	charge 	with 	the 	federal 	Equal 	Employment
Opportunity 	Commission 	(EEOC) 	complaining 	of 	the 	evaluation
report 	and 	its 	accompanying 	termination recommendation, 	as 	well
as 	the 	employee 	complaint 	that 	Duggan had 	filed against 	her. 	The
EEOC 	complaint was 	settled, 	and Baddour was 	reinstated on
November 	5, 	1981 	with back-pay 	for the 	regular 	school 	year
employment 	she 	missed. 	There was 	some 	testimony 	that 	the 	parties
to 	the 	EEOC 	complaint 	agreed, 	during 	settlement 	negotiations,
that Baddour was 	not 	to work with Duggan, 	Dion or Ross. 	Said
agreement, 	however, 	if 	it existed, 	was not 	incorporated into the
written 	settlement 	document. 	Baddour was 	returned 	to 	the 	special
education section under the 	supervision of Al 	Lamar 	(Lamar). 	She
remained 	under 	Lamar's 	direct 	supervision between November 	1981
and September 	1982.
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After 	the 	EEOC directed Baddour 	to 	return to 	employment, 	she
,had	had 	a 	conversation with 	Stephens 	in which 	she 	informed 	him 	that
she 	should 	have 	received back-pay 	for 	summer 	employment 	she
missed due 	to 	her 	"termination" 	and 	that 	she 	intended 	to 	talk 	to
the union about 	it.
Unfair 	Practice 	Charge 	Filed 	Regarding
District 	Summer 	Bus 	Driver 	Employment 	Practices
Some 	time between March and June 	of 	1981, 	Baddour 	and 	three
other bus 	drivers 	spoke 	to 	their union officials 	about 	the
District's 	summer bus 	driver 	employment practices. 	The 	District
had been offering 	its 	summer bus 	employment 	opportunities 	to 	the
hourly bus 	drivers 	rather 	than 	the 	higher paid 	full-time
employees 	in violation of 	the 	CBA. 	An unfair practice 	charge was
filed against 	the 	District by 	the 	SEIU, 	but 	settled 	in February
1982 	at 	a 	PERB 	informal 	conference. 	The 	only evidence 	at 	the
formal 	hearing 	in 	this 	case 	that 	any member of 	the 	District's
management 	or 	supervisory 	staff 	was 	aware 	of 	Baddour's
involvement 	in the 	filing of 	the unfair practice 	charge, 	was
Baddour's 	unsubstantiated 	statement 	that 	Williams 	had 	told 	other
employees 	that 	Baddour was 	a 	"unionizer."
Conflict with 	Bus 	Aide 	Peguero 	and
Dion Regarding a July 	6, 	1982 	Incident
On July 6, 	1982, 	Baddour observed her bus aide, 	Rafael
Peguero 	(Peguero), 	sitting in the driver's 	seat of her bus.
Baddour 	had previously warned 	Peguero 	a 	number of 	times 	not 	to
sit 	in 	the 	driver's 	seat 	and 	on 	this 	particular 	occasion ordered
him to get 	out 	of 	her 	seat. 	A verbal 	confrontation 	ensued.
9
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Eventually, 	Peguero 	accompanied Baddour on the 	bus 	to 	the 	school
site where 	he 	then 	jumped off 	the 	bus 	and began 	talking 	angrily
to his wife, 	who was 	at 	the 	site, 	half 	in English and half 	in
Spanish. 	After 	the 	students 	had been unloaded, 	another verbal
confrontation 	occurred 	between 	Peguero 	and 	Baddour 	with 	Peguero
threatening 	to 	hit 	Baddour 	in 	the 	face 	and 	Baddour 	referring 	to
Peguero 	as 	a 	"son of 	a bitch." 	When a bus 	driver 	called Baddour
on 	the 	bus 	radio 	and 	asked her 	to 	report 	to Dion 	for 	counseling
regarding the 	incident, 	Baddour responded on the 	radio, 	"Mr. 	Dion
is 	not my 	supervisor, " 	and did not 	in 	fact 	see 	him regarding 	this
incident. 	At the time, 	her supervisor, 	Lamar, 	was on vacation,
so Baddour reported the 	incident 	to Peter Goings 	(Goings), 	the
training 	supervisor. 	Peguero 	subsequently 	submitted 	a 	written
report 	in the 	form of 	a 	letter 	to 	the 	school 	district 	regarding
the 	incident. 	The ALJ 	noted 	a 	credibility problem 	regarding 	the
letter 	since 	he 	concluded 	that 	Peguero's 	verbal 	command 	of 	the
English 	language 	was 	not 	consistent with 	the 	type 	of 	language
contained 	in the 	letter. 	Peguero 	did 	testify 	that 	his 	daughter
had helped him with 	the 	letter, 	and 	there was 	equivocal 	testimony
that 	Peguero 	originally brought 	the 	letter 	into 	the 	office 	in
Spanish.
When Baddour's 	supervisor, 	Lamar, 	returned 	from vacation,
she was 	called 	in 	for 	a 	counseling 	session 	that 	she 	declined 	to
attend without 	her union 	representative. 	The 	meeting was
eventually 	rescheduled 	and 	two 	union 	representatives 	attended 	the
meeting along with Baddour. 	John McConahey 	(McConahey) 	,
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Transportation 	Services 	Supervisor 	for 	Personnel 	Safety 	and
Training, 	also attended the meeting. 	The outcome 	of 	the 	session
was 	that 	the 	District would 	take 	action 	against 	Peguero 	and 	the
incident was 	closed with regards 	to 	Baddour. 	The 	union
representatives 	specifically 	asked 	if 	the 	papers 	regarding 	the
incident would go 	into Baddour's 	records, 	and McConahey 	said 	they
would not.
Baddour's 	Refusal 	to Accept 	Dion as 	Supervisor
As 	a 	result 	of 	an 	independent 	study 	commissioned 	for 	the
purpose 	of 	increasing 	efficiency and decreasing 	expense, 	the
transportation department 	was 	reorganized 	in the 	summer 	of 	1982.
Ralph Decatur 	(Decatur) 	became 	supervisor of 	transportation 	for,
the 	integration program, 	and 	Lamar 	supervised 	transportation 	for
the 	special 	education program. 	Lamar 	and Decatur 	reported 	to
Stephens. 	Ross was 	the bus 	dispatcher who 	reported 	to Decatur,
and Dion was 	the bus 	dispatcher who 	reported to Lamar. 	Thus, 	the
only 	two 	first 	level 	supervisors 	of 	monthly bus 	drivers 	were 	Ross
and Dion, 	and Baddour did not want 	to work 	for 	either of 	them.
Ross 	was 	unacceptable 	because 	he 	had 	given her 	the 	unsatisfactory
performance 	evaluation 	leading 	to 	her 	first 	termination, 	and Dion
was 	unacceptable 	because 	she 	felt 	he 	had 	assaulted 	her during 	the
incident 	over 	the 	December 	1980 	performance 	evaluation 	report.
Nevertheless, 	the District 	assigned Baddour 	to work 	in Lamar's
special 	education program directly 	under 	Dion.
In a 	counseling 	session 	in September 	1982, 	Baddour expressed
to. Lamar her unwillingness 	to work under Dion. 	Not 	only was
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Baddour physically 	fearful 	of 	Dion, 	but 	she 	felt 	that Dion was 	a
liar. 	She 	also believed 	that 	the 	reassignment 	to Dion's
supervision violated 	the 	term of 	the 	EEOC 	settlement 	agreement.
Lamar 	offered 	to be 	present 	whenever 	Baddour 	had 	to 	meet 	with
Dion. 	Lamar made 	efforts 	to 	get 	Baddour 	and Dion to 	sit 	down
together. 	Lamar 	told Dion 	to be 	calm and professional 	when
dealing with Baddour. 	He would 	remind Dion of 	this 	before
counseling 	sessions 	with 	Baddour. 	Lamar 	arranged 	to 	have
meetings 	with Dion 	in plain view. 	Baddour did not want 	two 	men
in a 	room with her, 	so 	Lamar offered to have one 	of 	his 	two
female 	staff members 	sit 	in on the meetings. 	In 	spite 	of 	these
efforts; 	Baddour would not 	accept Dion as 	a 	supervisor.
Scheduled 	Performance 	Evaluation 	- 	October 	1982
On October 	14,,1982, 	a 	little more 	than one month after Dion
became 	her 	supervisor, 	Baddour was 	requested 	to meet with Dion
for 	a 	"scheduled performance 	evaluation." 	Knowing 	that 	she 	was
not 	due 	for a 	scheduled evaluation, 	Baddour became 	suspicious 	and
refused 	to 	attend without 	union 	representation. 	She 	informed
McConahey 	that 	she was 	not 	due 	for 	a 	scheduled 	evaluation.
McConahey, 	after checking 	the 	records, 	realized that Baddour was
correct 	and 	informed personnel 	that 	the 	request 	for 	such 	an
evaluation was 	in error. 	The matter 	continued to be 	the 	subject
of 	communications 	to 	and 	from the personnel 	office. 	In one
letter, 	Rhetta 	referred to 	the personnel 	manual 	section on
"unscheduled" 	performance 	evaluations, 	even though 	it was 	Dion's
contention 	that 	he 	had been 	told 	originally 	by 	the 	same 	personnel
12

department 	that 	the 	evaluation was 	a 	regularly 	scheduled 	one.
(Unscheduled 	evaluations 	could be 	given 	to 	record 	either 	a 	marked
deterioration or 	a 	significant 	improvement 	in 	employee
performance 	between 	regularly 	scheduled 	evaluations.
As of October 28, 	1982, 	Dion was 	still 	requesting that
Baddour 	report 	for 	a 	"counseling 	session." 	As 	she 	anticipated
disciplinary repercussions, 	she 	sought union representation, 	but
Dion 	refused 	to discuss 	the matter with 	the 	union present. 	A
meeting 	regarding 	this 	"scheduled" 	performance 	evaluation was
never 	held.
Dispute 	Regarding Mechanical 	Condition of 	Bus 	No. 	912
Baddour 	had 	insisted 	there 	were 	mechanical 	deficiencies 	in
bus 	number 	912. 	On November 8, 	1982, 	Dion asked Baddour to meet
with him to 	schedule 	a 	joint 	trip 	on 	the 	bus 	with 	the 	bus
inspector 	in an attempt 	to 	locate 	the problem, 	if 	there was 	one.
Baddour 	refused 	to 	meet 	with 	Dion without 	union 	representation,
although 	it 	is 	not 	clear whether 	she 	knew of 	the 	scheduled 	"test"
trip. 	Baddour 	had 	suspicions 	that 	someone 	had 	ordered 	the
mechanics 	not 	to 	repair 	the bus 	even 	though 	the bus 	had been 	in
the 	repair 	shop on a number of 	occasions. 	Dion, 	the 	safety
inspector 	and 	the 	bus 	instructor 	eventually 	took 	the 	test 	ride
themselves 	and 	found 	nothing wrong with 	the 	bus.
The 	District 	eventually dropped 	its 	request 	to 	discuss 	the
matter with 	Baddour 	after 	a 	California 	Highway 	Patrol 	officer
inspected 	the 	bus 	and ordered 	it 	repaired.
13

Unauthorized 	Use 	of 	Copy Machine 	in 	Purchasing 	Department
Dion testified that 	in October 	1982, 	staff 	in the purchasing
department 	complained 	to 	him 	that 	Baddour was 	using 	the 	joint
purchasing/transportation 	department 	photocopier 	without
permission. 	Effective September 27, 	1982, 	transportation
department 	staff 	were 	required 	to 	obtain 	a 	pass 	from their
supervisor 	to use 	the 	copier.
On November 27, 	1982, 	Dion requested that Baddour see him
about 	Baddour's 	unauthorized use 	of 	the 	copier. 	Baddour
responded by writing 	a 	memo 	to 	Lamar 	indicating 	she 	would 	not 	see
Dion on what 	she 	characterized 	as 	a 	manufactured matter. 	There
was 	no 	further demand 	for 	a 	meeting with 	Baddour 	after 	Lamar
received her 	response.
Transportation Questionnaire 	- 	December 	1982
In early December 	1982, 	Dion left 	a note 	for Baddour to 	see
him about 	her 	failure 	to 	complete 	a 	transportation questionnaire.
that was 	required of 	all 	classified bus 	drivers. 	Baddour was 	the
only driver who never 	completed 	the 	questionnaire, 	nor did 	she
ever meet with Dion about 	the 	matter.
Check-In Procedures 	- 	December 	1982
In early December 	1982, 	Dion requested 	that 	Baddour 	see 	him
about difficulties his assistant, 	Matt Tsunoda 	(Tsunoda), 	was
having with 	Baddour 	regarding 	early 	driver 	check-in procedures.
Tsunoda 	had previously 	left 	two 	notes 	for 	Baddour 	asking 	her 	to
come 	see 	him and 	she 	refused 	to 	see 	either Tsunoda 	or Dion.
. .
14

"Unscheduled" 	Performance 	Evaluation 	- 	January 1983
On December 	8, 	1982, 	Dion prepared an unscheduled
performance 	evaluation based 	on 	Baddour's 	refusal 	to 	respond 	to
his 	requests 	to 	see 	him about 	various 	employment matters. 	In his
note, 	he 	informed Baddour 	that 	she 	did not 	have 	the 	right 	to
union 	representation. 	When Baddour 	appeared at 	the 	scheduled
meeting with a 	SEIU representative, 	Dion 	refused to 	give 	the
evaluation.
Upon receipt 	of 	a 	memo 	from Dion 	regarding 	Baddour's
insistence 	on representation, 	McConahey 	sent memos 	to Harlan
Price, 	a transportation department 	supervisor, 	and Rhetta
indicating 	the 	Union was 	"interfering," 	and 	that 	Baddour did 	not
keep 	her 	appointment 	for 	the 	session.
On January 	10, 	1983, 	Rhetta 	sent Baddour a 	letter regarding
her having 	"refused 	to meet with Dion" 	and 	reminding her 	to meet
with him without 	a 	union 	representative. 	Baddour had 	actually
attempted, 	in either December or January, 	to meet with Dion with
representation,. or at 	least with witnesses 	in attendance, 	on at
least 	two occasions.
On January 12, 	1983, 	John Beard, 	executive business
representative 	for 	the Union, 	sent 	a 	letter 	imploring the
District 	to 	allow Baddour 	representation. 	Despite 	the 	fact 	that
Baddour had 	informed him of 	attempts 	to meet with Dion, 	Rhetta
sent 	a 	letter 	to 	Baddour 	indicating 	that 	he was 	recommending
suspension 	for 	"refusing" 	to meet with Dion.
15
9,

On January 	19, 	1983, 	Baddour 	sent a 	letter to Rhetta
indicating 	that 	one week prior 	to hi	. .. 	s writing 	to her, 	she 	had
arranged, 	through her attorney, 	to meet with Dion at his
convenience. 	Rhetta withdrew 	the 	recommendation 	for 	suspension
but 	did 	give 	Baddour 	an 	"official" 	letter of 	reprimand warning
her 	not 	to 	disobey her 	supervisor 	again 	and 	that 	any 	repeat 	of
such 	conduct 	would 	constitute 	insubordination.
On January 20, 	1983, 	Baddour 	finally met with Dion to review
the performance 	evaluation report. 	Pursuant 	to 	the 	arrangements
through her 	attorney, 	she was 	allowed to 	tape 	record 	the 	meeting
which 	occurred 	in a 	room with 	an open door. 	Although 	the 	primary
. . .'
subject 	of 	the 	evaluation was 	Baddour's 	repeated 	refusals 	to meet,
with Dion at 	his 	request, 	the 	evaluation 	included 	the 	Peguero
incident, 	despite 	the 	fact 	that 	Baddour had been assured 	that 	the
incident 	had been 	closed.
The 	performance 	evaluation 	contained 	unsatisfactory 	ratings
in the areas of 	communication skills, 	working relationships, 	and
adaptability/flexibility. 	A 	series 	of 	notes 	accompanied 	the
report, 	including a 	note documenting Baddour's 	refusal 	to 	accept
the 	reporting 	structure 	in 	the 	transportation 	services 	department
and her 	failure 	to 	"respond 	in 	a 	timely 	fashion 	to 	supervisor's
requests."
Baddour 	filed 	an 	employee 	complaint 	regarding 	the
performance 	evaluation and 	letter of 	reprimand, 	as 	well 	as 	other
incidents. 	The 	complaint was 	summarily denied.
16

Tardiness 	Counseling 	Session 	- 	Late 	January 1983
On January 21, 	1983, 	Dion left Baddour a note directing her
to 	see 	him regarding 	tardiness 	on 	two 	occasions. 	Baddour
initially 	refused 	to meet with Dion, 	but 	did meet with him and
Lamar near Lamar's 	desk later 	in the month. 	Helen White 	(White),
a 	fellow bus 	driver, 	accompanied her as 	a witness. 	Baddour
refused 	to 	speak 	to Dion 	and 	spoke 	to 	Lamar only. 	When Dion
attempted 	to 	talk 	to 	Baddour 	in normal 	conversational 	tones,
Baddour kept repeating, 	"I 	can't hear you. 	I 	can't hear you,"
even 	though he 	was 	standing 	no more 	than 	four 	feet 	away 	from her.
What 	he was 	attempting 	to 	tell 	her was 	that 	there would be 	no
counseling 	session 	so 	long as 	White was 	with h e r . Baddour 	then
said, 	"then you refuse 	to meet with me." 	He 	said, 	"I will meet
with you but 	it's 	- 	the way 	the 	contract 	is 	interpreted 	is 	that
you 	are 	not 	allowed 	to 	have 	somebody with you," 	and 	then 	she
walked away 	saying 	"he won't 	see me" 	and 	continued 	to 	shout 	that
phrase 	down 	the 	office 	hallway.
C o n f l i c t 	w i t h 	B a r r y 	W e s t o v e r 	- 	J a n u a r y 	1983
On January 6 	and again on January 25, 	1983, 	Baddour and
Barry Westover 	(Westover), 	a bus dispatcher/scheduler, 	exchanged
a 	number 	of 	angry words. 	Baddour yelled 	at 	Westover 	and 	accused
her of 	maligning her. 	On February 	2, 	Baddour 	and Westover 	each
accused 	the 	other 	of 	making 	an obscene 	finger 	gesture 	towards 	the
other 	in 	the 	transportation yard parking 	area. 	On January 	26,
1983, 	Westover wrote 	a 	letter 	to 	Lamar describing her view of
this 	alleged 	finger 	gesturing 	incident.
17
=

Failure 	to 	Complete 	Route Audit 	Sheets
for New Supervisor Matt 	Tsunoda 	- 	Spring 	1983
In February 	1983, 	Dion became 	a 	transportation planner.
Tsunoda 	became 	a 	senior bus 	dispatcher/scheduler, 	and Baddour's
immediate 	supervisor. 	During the 	spring of 	1983, 	Tsunoda
counseled Baddour at 	least 	once 	a week, 	primarily on 	the 	subject
of 	driving 	her 	personal 	vehicle 	onto 	the 	transportation parking
lot 	in violation of 	department policy.
Tsunoda 	also 	complained 	of 	Baddour's 	refusal 	to 	complete 	bus
route 	audit 	sheet 	reports 	which were 	to 	be 	completed 	on 	five
consecutive days. 	Baddour claimed 	it was 	impossible 	for her 	to
complete 	the 	reports 	since 	she was 	removed, 	at 	least once 	a week,
from her 	route 	in order 	to 	attend various 	counseling 	sessions
with Tsunoda. 	Tsunoda 	testified 	that 	Baddour went 	to 	only 	one
counseling 	session 	in 	lieu of 	her bus 	route, 	and 	indicated that
audit 	reports would only take 	a minute 	or 	so 	to 	complete. 	The
ALJ 	noted 	there 	was 	no 	evidence 	proffered by 	either 	side 	to 	show
why Baddour 	could not 	have 	completed 	four days, 	and obtained
information on 	the 	fifth day 	from 	the 	substitute 	bus 	driver.
Complaints 	from Revere 	Development 	Center 	- 	Spring 	1983
On April 	13, 	1983, 	Ray Campbell 	(Campbell), 	principal at
Revere Development 	Center 	(Revere), 	complained to Lamar about
Baddour's 	behavior with 	the 	Revere 	staff. 	He 	said that 	Baddour
would become 	angry and curse 	at 	the 	Revere 	nurse, 	Beryl 	Mustol
(Mustol) , 	and that Baddour had a very explosive personality that
made-' it very difficult" to work with her. 	The principal 	also
referenced a 	confrontation 	that 	Baddour 	had with 	one 	of 	her 	bus
18

aides, 	David Beard 	(Beard), 	in early spring 	1983. 	Baddour had
raccused the 	aide 	of 	pushing 	a 	wheelchair 	at 	her 	and 	said 	that 	"he
swings 	in those wheelchairs 	like 	a 	monkey." 	When Campbell
attempted to 	get 	Beard's 	side 	of 	the 	story, 	every time 	Beard
would open his 	mouth, 	Baddour would begin 	shouting 	at 	him again.
Campbell 	did not want 	Baddour 	at 	his 	school 	site 	any 	longer.
Baddour had 	trouble 	with 	a 	number of 	aides 	for various
reasons 	ranging 	from 	their 	failure 	to 	take 	care 	of 	their 	students
properly, 	to 	their 	smoking on the bus. 	She 	also 	suspected that
some 	of 	them were 	stealing money 	from her purse. 	At 	one 	time 	or
another, 	she1 asked that most of her bus 	aides be 	replaced, 	and
considered only a handful 	of 	them competent. 	In his 	letter 	to
Lamar, 	Campbell 	also 	stated 	that 	Baddour got 	into 	conflicts 	with
many members 	of 	the 	Revere 	staff 	and 	that 	he 	had 	received many
complaints 	about 	Baddour.
"Broken Door" 	Counseling Session - 	May 9, 	1983
On May 	9, 	1983, 	Baddour attended a 	counseling 	session with...
Tsunoda 	and Lamar. 	According 	to 	Baddour, 	Tsunoda 	flipped 	through
a 	series 	of 	completed complaint 	forms 	in 	front 	of 	her but
declined 	to 	let 	her 	see 	them. 	A 	shouting 	match 	ensued with
Baddour 	engaging 	in 	some 	cursing. 	Baddour 	then picked up 	the
documents 	in question and proceeded 	to 	leave 	the 	meeting. 	When
Lamar asked her 	to give back 	the 	documents, 	Baddour 	replied:
"I'm not 	a dog. 	Save 	it 	for your wife." 	She 	then 	stormed out 	of
the 	room 	slamming 	the 	door 	and damaging 	it 	in 	the process. 	Lamar
_and 	Tsunoda 	concluded 	Baddour was 	too 	emotionally upset 	to 	drive
- .
. ..
and
19

her bus 	and 	sent 	a 	highway patrolman, 	who happened 	to be 	at 	the
transportation department; after her,, to stop her from driving.
Alleged Violations 	of 	Policy 	Regarding
Personal 	Vehicles 	Driving 	Into 	the 	Headquarters 	Lot
Next 	to 	he 	transportation 	services 	department 	headquarters,
there 	is 	a 	two and one-half 	acre 	open area. 	The 	area 	is 	used 	for
parking 	some 	buses 	and 	contains 	various 	assigned parking 	spaces
for 	clerical 	and administrative personnel. 	For a 	number of
years, 	the 	area had become 	increasingly congested, 	especially
during 	the peak bus 	route 	start up 	times, 	with 	the personal
vehicles 	of 	bus 	drivers. 	The bus 	drivers would drive 	into 	the
area to check in, 	check out, 	use the restrooms, 	use the
telephone, 	or attend to 	any number of 	other 	short-term errands.
To 	relieve 	the 	congestion, 	the department 	issued a
memorandum 	in 	February 	of 	1981 	prohibiting 	drivers 	from driving
their personal 	vehicles 	onto 	the 	headquarters 	building 	area.
Later, 	a 	sign was 	permanently displayed at 	the 	entrance 	to 	the
yard 	reminding 	the 	employees 	of 	this 	prohibition.
The 	rules, 	however, 	were 	obeyed and enforced 	in an
inconsistent 	fashion. 	For 	long periods 	of 	time, 	the 	area would
be 	cluttered with personal 	vehicles, 	and 	then 	there would be 	a
crack down and one 	of 	the 	administrative 	officials 	would 	be
directed 	to 	issue 	citations. 	The 	form letters 	include written
directions 	that 	the 	vehicle's 	owner 	had violated 	the 	department's
policy 	and 	that 	"disciplinary 	action 	may 	result 	should 	you
violate department
A
: policy again. " 	The citations,however, 	were
rarely 	issued. 	The 	District's 	witnesses 	insisted 	that 	a 	verbal
20

reminder 	usually 	cured most 	employees 	of 	the 	practice 	and
ictherefore 	the 	issuance 	of 	formal 	citations 	was 	not 	usually
necessary.
The 	"Notice 	of 	Intention to Dismiss" 	issued 	to Baddour 	cited
seven 	separate 	instances 	of 	insubordination between July 	14, 	1982
and May 	3, 	1983 	based on Baddour's 	having 	failed 	to 	obey 	the 	"no
drive-in" 	directive. 	Baddour 	insisted 	that 	the parking 	citation
was 	used 	as 	a 	form of 	harassment 	against 	her, 	and 	insisted 	she
was 	actually 	told 	only 	four 	times 	during 	her 	entire 	employment
history that 	she 	should not drive 	onto the 	lot. 	Lamar, 	however,
testified 	that 	he 	was 	aware 	of 	her being warned by himself 	or
others 	six to 	eight 	times, 	and that he personally observed her
driving onto 	the 	lot 	over 	ten times, 	although he 	did not write
her up 	every 	time 	he 	saw her.
On April 	19, 	1983, 	Baddour came to the conclusion that 	she
was 	the 	only one 	getting parking 	citations. 	She 	verbalized 	this
belief 	in 	one 	of 	her 	counseling 	sessions 	with 	Lamar 	and 	Tsunoda
stating 	that:
"When I 	see a policy about driving 	[onto] 	the
lot 	that's 	fairly 	and 	consistently 	applied
enforced 	for everyone, 	I'll 	stop doing 	it
too. 	You can't 	show me 	a policy."
"I'm sick of 	the harassment 	from you
and the 	office bimbos."
(Transcript, Vol. 	2, p. 	175.)
The 	department 	justified 	its 	action 	in 	citing 	Baddour 	by 	stating
that 	Baddour was 	the 	most persistent 	of 	all 	of 	the 	drive-in
policy 	violators.
,,;
21

Alleged Violations 	of 	Policy 	Regarding
Taking 	Photos 	of 	Other 	Employees 	Parked 	in Headquarters 	Lot
Once 	Baddour became 	convinced 	she 	was 	the 	subject 	of
discriminatory 	enforcement 	of 	the 	department 	drive-in policy, 	and
upon the 	advice of 	her attorney, 	she began to 	take pictures 	of
other 	employees 	driving 	their 	cars 	onto 	the 	lot. 	McConahey,
after 	having 	received 	a 	complaint 	by 	an 	employee 	who 	had 	his
picture 	taken by Baddour, 	told Baddour 	to 	stop 	the photographing
as 	it was 	intimidating or harassing 	the 	individual 	employees.
Baddour 	insisted 	there 	was 	no 	District 	policy prohibiting 	the
photographing. and continued to do 	it. 	One 	of 	the 	two 	employees
identified 	as 	having 	complained 	about 	the 	photo-taking 	recanted.,
in his 	testimony, 	stating that, 	once he 	learned the 	reason 	for
Baddour's photographing him, 	he did not 	object 	to 	it.
Decision 	to 	Dismiss
The District employs a merit 	system, 	and, 	therefore, 	has an
intricate 	and 	well-defined 	disciplinary 	procedure 	for 	classified
employees. 	The procedure 	is 	embodied 	in the Merit 	System Rules
for 	Classified 	Employees 	of 	the 	San Diego 	Unified 	School 	District
(Rules) . 	The procedure has 	no requirement 	regarding progressive
discipline. 	Although 	the 	transportation 	department 	policy 	manual
contains 	a 	document 	entitled 	"administrative 	suspensions" 	which
sets 	forth 	42 	potential 	offenses 	with 	two 	corresponding
disciplines 	next 	to 	each offense, 	and 	suggests 	progressively more
serious 	discipline 	for 	subsequent 	offenses, 	McConahey 	testified
that' 	the 'document was used when he 	first 	came on the.. job but was
no 	longer 	in use 	at 	the 	time 	Baddour was 	disciplined. 	The. . .'
22

primary 	guideline 	in developing disciplinary 	recommendations, 	in
McConahey's mind, 	was 	not progressive 	discipline but 	rather
consistency.
In Baddour's 	case, 	Lamar did 	recommend 	that 	Baddour be
transferred 	somewhere 	else 	before 	being 	dismissed, 	but 	Stephens
concluded 	there was 	nowhere 	to 	transfer 	Baddour 	as 	she 	refused 	to
work 	for 	any of 	the 	supervisors 	then working 	in 	the 	department.
Baddour was 	served with 	her 	dismissal 	recommendation 	on May 	21,
1983.
While 	Baddour 	awaited her 	termination hearing, 	she 	continued
on the payroll, 	pursuant 	to the Rules, 	and was 	assigned to
Lincoln High School 	as 	a 	school 	site bus 	driver. 	Although
initially 	there 	was 	some 	concern 	about 	Baddour 	not 	being 	allowed
time 	to 	take breaks 	or 	lunch periods, 	eventually this 	issue was
resolved 	and Baddour's 	supervisor 	at 	the 	site 	was 	satisfied with
her. 	She was well-liked and got 	along with the 	students, 	as well
as 	the 	rest 	of 	the 	staff. 	Her 	supervisor 	told her 	that 	he would
like 	her 	to 	stay on as 	the 	site 	driver.
Specific 	Incidents 	Used 	to 	Support 	Baddour's 	Dismissal
On August 	2, 	1983, 	Baddour was given a Notice of 	Intention
to 	Dismiss. 	The 	Dismissal Accusation attached 	to 	that 	notice 	is
the 	operative 	document 	setting 	forth 	the 	specific 	allegations
supporting 	the 	dismissal. 	Baddour's 	Dismissal 	Accusation 	listed
48 	incidents. 	In addition, 	there were 	five 	cumulative 	incidents
listed, 	such as 	previous 	unsatisfactory performance 	reports 	and
generalized 	statements 	such 	as 	"Baddour has 	repeatedly 	received
23

c o u n s e l i n g 	and 	assistance 	regarding 	her 	p e r f o r m a n c e , 	but 	has
failed 	to 	d e m o n s t r a t e 	improvement 	despite 	such 	c o u n s e l i n g 	and
a s s i s t a n c e . "
The 	specific 	incidents 	supporting 	the 	dismissal 	w e r e 	g r o u p e d
w i t h i n three 	general 	categories 	o f : 	(1) 	i n s u b o r d i n a t i o n ; 	(2)
failure 	to 	obey 	reasonable 	d i r e c t i o n s 	or 	observe 	r e a s o n a b l e
r u l e s ; 	and 	(3) 	p e r s i s t e n t 	d i s c o u r t e o u s 	treatment 	of 	fellow
e m p l o y e e s . 	Each 	of 	these 	general 	categories 	is 	tied 	into 	a
specific 	article 	and p a r a g r a p h 	of 	the 	R u l e s , 	but 	m a n y 	of 	the
specific 	incidents 	fall 	into 	all 	three 	of 	the 	general 	c a t e g o r i e s .
The 	48 	incidents 	can be 	grouped i n t o 	general 	h e a d i n g s , 	as
f o l l o w s :
Incidents 	N o . 	o f 	O c c u r r e n c e s
(a) 	T a k i n g p h o t o g r a p h s 	of 	employees 	in h e a d q u a r t e r s 	lot 	5
(b) 	D r i v i n g 	into 	the 	h e a d q u a r t e r s 	lot 	7
(c) 	Rudeness 	to 	Barry W e s t o v e r 	6
(d) 	R u d e n e s s 	to 	supervisors 	D i o n , 	Tsunoda 	or 	L a m a r 	2
(e) 	Rudeness 	to 	Peguero 	- 	bus 	aide 	1
(f) 	G r a b b i n g 	from 	and 	refusing 	to 	r e t u r n 	d o c u m e n t s 	to
supervisor 	2
(g) 	Slamming 	door 	w h e n 	leaving 	a 	counseling 	session 	1
(h) 	Refusal 	to 	request 	bus 	from D o n D u g g a n 	1
(i) 	Failure 	to 	turn 	in 	bus 	audit 	1
(j) 	Failure 	to 	notify 	supervisor 	w h e n 	not 	able 	to
report 	on 	time 	1
(k) 	Refusal 	to meet 	w i t h 	supervisor 	21
,
'
24

On May 	17, 	1983, 	in conjunction with her dismissal
igrecommeridation,Baddour 	received 	a 	Performance 	Evaluation Report.
That 	report 	rated her 	in 	seven 	categories. 	She 	received 	"Meets
Standards" 	in Job Skill 	Level 	and Observance 	of 	Safety/Health
Standards; 	"Requires 	Improvement" 	in Observance 	of Work Hours 	and
Productivity/Quality of Work; 	and - "Unsatisfactory" 	in
Communication Skills, 	Working Relationships 	and
Adaptability/Flexibility. 	There were 	a 	number 	of 	accompanying
notes. 	One of 	these notes was 	as 	follows:
Ms. 	Baddour refuses 	to demonstrate 	a willing
and 	cooperative 	attitude 	toward 	fellow
employees. 	Good 	faith 	communication attempts
by 	department 	staff 	are 	met 	with 	discourteous
and abusive 	replies.
Her 	demeanor 	when 	discussing 	her 	assignments
appears 	agitated, 	anxious 	and distressed.
She 	demonstrates 	a 	complete 	lack of 	ability
to converse 	in normal 	tones. 	This 	erratic
behavior 	is 	detrimental 	to department
operations, 	staff morale, 	and is totally
unacceptable 	for drivers 	of pupil 	passengers.
Ms. 	Baddour still 	refuses 	to accept the re-
organization 	of 	the 	Transportation 	Services
Department. 	Ms. 	Baddour doesn't accept the
change willingly. 	She does 	not 	accept 	the
directions 	of 	her 	new 	supervisor 	in 	carrying
out 	instructions 	and assignments. 	Due 	to her
refusal 	to 	accept 	the 	changes 	in the
department, 	the progress 	and performance of
the 	Special 	Education Department 	is 	seriously
impeded. 	Ms. 	Baddour's 	refusal 	to accept
change 	cannot 	continue.
(Respondent's Exhibit B, 	pp. 	2 	and 3.)
1983 	Summer 	School 	Employment 	Denial 	Grievance
The 	special 	education bus 	routes 	to which Baddour was
assigned 	during-the 	regular 	school 	year were 	continued 	during 	the
summer. 	She had a 	regular 	10-month assignment but, 	due 	to 	the
i. ': . . .
25

settlement 	that 	came 	out 	of 	the 	1981 	summer 	school 	unfair
practice 	charge 	filed by SEIU 	on behalf of 	the 	regular permanent
full-time bus 	drivers, 	she had an agreed-upon right 	of 	first
refusal 	to 	summer 	school 	employment. 	During 	the 	1983 	spring
semester, 	prior 	to being 	told 	that 	her 	supervisor was
recommending her dismissal, 	she was 	asked 	if 	she wanted 	such an
assignment. 	She 	stated that 	she did. 	On June 	16, 	1983, 	prior to
the 	start 	of 	the 	summer 	session, 	she was 	told that 	she would not
be 	given 	such 	summer 	employment 	due 	to 	her pending dismissal.
She 	filed a grievance on July 26, 	1983, 	regarding this denial 	of
summer employment. .
Once the District's decision to terminate was 	confirmed by \,-
the 	termination hearing officer, 	the 	District 	sent 	a 	letter 	to
Beard 	stating, 	"Elizabeth Baddour was 	terminated 	effective
November 	16, 	1983. 	It 	is 	the District's opinion that the
grievance 	filed by Ms. 	Baddour 	is 	now moot." 	SEIU decided not 	to
proceed with 	the 	case 	and 	no 	arbitration hearing 	was 	held.
Baddour's 	Claim 	for Extra Time 	and
Overtime 	Pay During Autumn 	198 3
Baddour 	submitted 	extensive 	and 	multi-faceted 	justification
for overtime 	salary payment 	for 	the 	time 	she 	spent 	at 	Lincoln
High 	School 	and was 	concurrently preparing 	for, 	and 	attending,
her termination hearing. 	On February 	15, 	1984, 	the District
offered Baddour 	a warrant 	in 	the 	amount 	of 	$302.11 	which
"represents 	compensation 	for your wage 	claims 	set 	forth 	in your
letter of * November 	30, 	1983, and is made pursuant to the
settlement 	terms 	set 	forth in our 	letter of December 	22, 	1983."
•
• 	"'
26

The 	settlement 	offer 	of 	$302.11 	was 	satisfactory 	to
Baddour 	but 	the 	letter went 	o n t o 	state: 	"The 	above-identified
warrant 	and 	the 	previous 	warrant 	for 	$212.40 	constitute 	full 	and
final 	compensation 	for your 	services 	as 	a District 	employee."
Baddour 	objected to 	this 	final 	language, 	and declined 	the 	check
as 	she was 	concerned that 	she would,. . by accepting 	the 	tendered
check, 	be giving up 	a part 	of 	her rights 	to 	a 	full 	settlement
pursuant 	to 	this 	unfair practice 	charge. 	Baddour's 	attorney, 	in
his brief, 	stated that 	the tendered amount of 	$3 02.11, 	plus
interest, 	is 	a 	satisfactory sum 	for payment 	of 	this 	claim.
PROCEDURAL 	HISTORY
Under 	the 	Rules, 	any 	classified 	employee 	served with 	a
notice 	of 	dismissal 	may 	request 	a 	hearing before 	a 	hearing
officer, 	but must base such request:
. 	only on the following grounds:
(a) 	That 	the procedures 	set 	forth by the
Merit 	System Rules 	have 	not 	been
followed by 	the 	Board 	of 	Education 	or
its officers.
(b) 	That 	sufficient 	cause does 	not 	exist 	to 	justify
the 	action of 	the 	Board of 	Education.
(c) 	That 	there has been an abuse of discretion.
(Article 	IX, 	section 5 	of 	the Rules)
The 	same 	Rules 	restrict 	the parameters 	of 	the 	hearing 	as
follows:
The 	hearing 	shall 	be 	confined 	to 	the 	reasons
for 	action 	set 	forth by 	the 	Superintendent 	of
Schools 	in the written charges 	and to
relevant 	defenses 	set 	forth 	in the 	appeal.
(See Article 	IX, 	section 6 	of 	the Rules.)
i
•
.
27

Pursuant 	to 	the Rules, 	Baddour requested a hearing. 	An
"...e-Y·id~ntiary hearing 	to 	determine 	whether 	cause 	existed 	to 	dismiss
Baddour 	commenced on September 	27, 	1983 	and 	ended November 	5,
1983 	following 	14 	days 	of 	testimony.
On November 	7, 	1983, 	the hearing officer 	issued a decision
finding 	cause 	existed 	to 	terminate 	Baddour. 	Baddour did 	not
petition 	the 	superior 	court 	to 	set 	aside 	the 	hearing 	officer's
decision. 	On November 	16, 	1983, 	Baddour was notified she was
terminated 	effective 	that 	date.
On or about May 	16, 	1984, 	Baddour 	filed an unfair practice
charge 	alleging 	she 	was 	denied 	summer 	employment 	in 	1983 	and was
discharged 	in*retaliation 	for 	her participation 	in protected
activities.3
On November 	16, 	1984, 	a PERB Board agent 	issued an amended
complaint 	alleging, 	in part, 	that 	the District denied Baddour
summer 	employment 	in June, 	1983 	and discharged her 	in November,
1983 	because: 	(1) 	she participated in a 	PERB unfair practice
charge : in 1981;, and 	(2) 	she filed a grievance in July, 	1983.
A 	PERB 	hearing 	on 	the 	amended 	complaint 	commenced 	on
November 27, 	1984. 	On that day, 	the District moved to dismiss
the 	charges based, 	inter alia, 	on the grounds 	that 	the doctrine
of 	collateral 	estoppel 	barred 	relitigation of 	the 	issue 	of 	cause
for Baddour's 	dismissal. 	The ALJ denied 	this 	motion.
Specifically, 	in her charge, 	Baddour alleged she was 	denied
summer employment 	in 	1983 	'and was 	discharged 	in 	retaliation 	for
filing a,grievance 	in July, 	1983, 	"participating 	in a 	class
action unfair practice, " 	and 	for 	filing 	charges with 	the 	EEOC.
evidentiary
. . .
28
i

The hearing concluded on January 2, 	1985. 	On October 	31,
l986; the ALJ 	issued 	a 	proposed decision 	(Baddour 	I) 	finding 	that
the 	District 	violated EERA 	section 	3543.5(a) 	when 	it 	terminated
Baddour.
On November 20, 	1986, 	the District 	filed a 	statement of
exceptions 	to 	the proposed decision, 	raising approximately
twenty-two 	separate 	grounds 	for 	reversal. 	Among other
exceptions, 	the 	District 	asserted that 	the 	issue 	of 	sufficiency
of 	cause 	for 	Baddour's 	termination had 	been 	conclusively decided
against 	her 	in 	the 	prior dismissal 	proceeding.
On August 18, 	1987, 	PERB issued its preliminary decision in
Baddour ; I: 	Rather than adjudicating the merits 	of 	the District's
exceptions, 	PERB 	remanded the 	case 	to 	the ALJ 	"for 	further
hearing 	on 	the 	issue 	of 	the 	application of 	collateral 	estoppel 	to
the proceeding."
Following remand, 	a 	transcript 	of 	the 	original 	dismissal
proceedings 	was 	ordered prepared 	for 	use 	upon 	consideration 	of
the case 	on 	remand. 	The 	original 	dismissal 	hearing was 	conducted
over a period of 	fourteen days. 	The 	court 	reporting 	firm,
however, 	was 	able 	to provide 	transcripts 	for only eleven of 	those
days, 	having been unable 	to 	locate 	the 	court 	reporter who
attended the hearing on October 	17, 	October 	19, 	and November 	3,
1983. 	The partial 	original 	transcript 	of 	the dismissal
proceedings was 	filed with PERB 	(dismissal 	transcript) . 	Based on
the dismissal 	transcript 	, the parties briefed the 	issue of 	the
applicability of 	collateral 	estoppel.
29

On October 	10, 	1990, 	the ALJ 	issued his proposed decision
;«(Baddour II) . on the 	issue of the applicability of 	collateral
estoppel. 	The ALJ 	concluded 	collateral 	estoppel 	did 	not 	apply
for two reasons:
1. 	There was 	no 	identity of 	issues 	in the dismissal 	and
unfair practice 	hearings 	because 	the 	issue 	of 	the 	right 	to union
representation 	at 	counseling 	sessions 	(purportedly present 	in 	the
unfair practice 	hearing) 	was 	not 	addressed 	in the 	dismissal
hearing; 	and
2. 	The 	dismissal 	proceeding Hearing Officer did not 	act 	in
a 	quasi-judicial 	capacity.
On October 23, 1990, .. the District filed a statement of
exceptions 	to 	the proposed decision 	in Baddour 	II 	arguing,
preliminarily, 	that, the ALJ erred 	in concluding collateral
estoppel 	did not 	apply. 	The 	District 	incorporated 	into 	its
exceptions, 	by reference, 	the exceptions originally filed, 	and
not disposed of, 	in the 	appeal 	of 	the 	original 	proposed decision,
in Baddour 	I. 	The 	District 	also 	requested oral 	argument before
the 	Board. 	The 	charging party 	filed a 	response 	to 	the 	District's
exceptions.
Oral 	argument was 	granted and heard on April 	3, 	1991.
DISCUSSION
BADDOUR 	II
ALJ's 	Proposed 	Decision
As 	noted above, 	the ALJ's 	decision 	in Baddour 	II 	responds 	to
the 	Board decision 	issued 	in Baddour 	I 	in which 	the 	Board
•
. . .
30
BAOOOITR

remanded 	the 	case 	to 	the 	ALJ 	"for 	further 	hearing 	on 	the 	issue 	of
the 	applicability 	of 	collateral 	estoppel 	..." 	On remand, 	the
ALJ 	ordered 	the 	District 	to 	have 	a 	transcript 	prepared of 	the
merit 	system dismissal 	hearing 	and 	requested 	that 	the 	parties
file 	briefs 	and 	supplemental 	briefs 	of 	their 	respective
positions. 	Having 	reviewed 	the 	transcripts 	and the 	briefs
submitted by the parties, 	the ALJ 	concluded that 	the 	decision of
Hearing 	Officer Nick Atma 	(Atma) 	in 	the 	merit 	system hearing 	does
not 	collaterally 	estop 	the 	continued 	litigation of 	Baddour 	I.
In reaching his 	conclusion, 	the ALJ 	relied upon the 	tests
traditionally 	employed 	for 	determining 	the 	applicability 	of
collateral 5 estoppel, 	as. set forth in State of California 	.
(Department of Developmental 	Services) 	(1987) 	PERB Decision No.
619-S. 	In that case, 	the Board stated:
Collateral 	estoppel 	traditionally 	has 	barred
relitigation of an issue 	if 	(1) 	the 	issue 	is
identical 	to 	one 	necessarily decided 	at 	a
previous proceeding; 	" (2) 	the previous
[proceeding] 	resulted 	in a 	final 	judgment 	on
the merits; 	and 	(3) 	the party against whom
collateral 	estoppel 	is 	asserted was 	a party
or 	in privity with a party 	at 	the prior
[proceeding]." 	People v. 	Sims, 	supra,
32 Cal.3d at p. 	484 	(citations omitted).
For 	cases 	involving 	the 	collateral 	estoppel
effect of 	administrative decisions, 	the
California 	Supreme 	Court 	in People v. 	Sims,
supra. 	adopted the 	standards 	formulated by
the 	United 	States 	Supreme 	Court 	in United
States 	v. 	Utah Construction & Mining Company
(1966) 	384 U.S. 	394 	[16 L.Ed.2d 642, 	86 S.Ct.
1545]. 	There, 	the United States Supreme
court 	stated: 	"When an administrative 	agency
is 	acting 	in a 	judicial 	capacity and resolved
disputed 	issues 	of 	fact 	properly before 	it
which the*; parties 	have 	had 	an 	adequate
opportunity to 	litigate, 	the 	courts 	have 	not
31

hesitated to 	enforce 	repose." 	(Id.. 	at p.
422.) 	Thus, 	collateral 	estoppel 	effect will
be 	granted 	to 	an 	administrative 	decision 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.
In 	applying 	the 	test 	for 	the 	applicability of 	collateral
estoppel 	to 	the 	facts before him in Baddour 	II, 	the ALJ 	first
addressed 	the 	question of whether 	the 	"issue 	is 	identical 	to 	one
necessarily 	decided 	at 	the 	previous 	proceeding."
The ALJ 	found 	that 	the 	dismissal 	transcript 	indicated 	that:
Baddour 	insisted 	that 	she 	be permitted 	to
have 	a 	union 	representative 	present 	before
she 	would 	agree 	to meet 	with her 	supervisor.
(Proposed Decision, 	p. 	3.)
The ALJ 	quoted 	Hearing 	Officer Atma's 	finding 	that:
The 	Employee 	asserted 	that 	attempts 	(to meet
with her 	supervisor) 	were 	made 	to 	comply with
such directives. 	But, 	the qualifications and
conditions 	placed by 	the 	Employee 	amounted 	to
rejections 	by the 	Employee 	of 	directives 	to
schedule 	meetings 	or 	attend 	those 	schedules.
The 	Employee was 	as 	a 	result 	insubordinate.
(Proposed Decision, 	p. 	4, 	fn. 	3.)
The ALJ 	also pointed 	out 	that 	a 	copy of 	the 	District's
classified 	employee's 	CBA was 	introduced 	to 	show 	that 	this
document 	gave 	Baddour 	no 	justification 	for 	insisting 	upon 	the
presence of a representative. 	The ALJ concluded, 	however, 	that:
Nowhere 	in Hearing 	Officer Atma's 	decision
was 	there a discussion of 	the 	PERB, 	NLRB or
any other 	applicable 	labor 	relations 	law
regarding 	the 	circumstances 	under which 	an
employee 	has 	a 	right 	to have 	a 	representative
present- 'during' specified meetings with a
supervisor.
(Proposed Decision, 	p. 	4.)
32

The ALJ 	then noted 	that:
The 	issue, 	inter alia, 	addressed by the 	PERB
ALJ 	in his 	[Baddour 	I] 	was whether Baddour,
under 	the 	controlling 	EERA 	statutory 	and
decisional 	law, 	was 	denied rights 	guaranteed
by 	the 	law when 	she 	was 	denied 	representation
at 	scheduled meetings 	with her 	supervisor.
There 	is 	little doubt 	that 	this 	is 	an
entirely different 	issue 	than 	the 	one 	decided
by Atma.
(Proposed Decision, 	pp. 	10-11.)
Thus, 	the ALJ 	concluded that 	the 	two decisions 	did not
address 	the 	same 	issue, 	and that 	the 	decision 	in the dismissal
hearing 	therefore 	did 	not 	collaterally 	estop 	the 	continued
litigation of 	the 	decision 	issued by 	the 	PERB ALJ 	in Baddour 	I.
The ALJ 	next 	addressed 	the 	issue 	of whether 	the 	dismissal
proceeding was 	judicial 	in 	character. 	He 	concluded 	that 	the
dismissal 	proceeding was 	not 	judicial 	in 	character 	for 	the
following 	reasons:
1. 	Arbitrator's 	awards 	are 	not 	given collateral 	estoppel
effect 	and 	the 	merit 	system proceeding was 	akin 	to 	an
arbitration;
2. 	The merit 	system rules 	are 	controlling as 	to whether the
proceeding was 	judicial 	in nature, 	and they provide: 	(a) 	that
the 	hearing officer 	is 	to be 	appointed by the District; 	(b) 	that
the 	hearing officer's 	pay 	is 	to be 	determined by 	the 	District;
(c) 	that 	one-half 	the hearing officer's 	fee 	is 	to be paid by the
employee 	if 	the employee 	loses; 	(d) 	no reference 	to subpoena
power, 	contempt power, 	or the 	right 	and obligation to call
...
33

witnesses; 	and 	(e) 	no 	standard regarding burden of proof 	or
quantum of 	proof;4
3. 	There 	is 	no ultimate 	authority or agency acting 	in a
"judicial 	capacity" 	behind 	the 	hearing officer's 	decision;
4. 	The 	merit 	system proceeding procedure 	has 	no bilateral
validity because 	it 	is 	not 	created 	in concert with 	the 	employee 	.
representative;
5. 	There 	is 	no 	requirement 	that 	any portion of 	the 	hearing
officer's 	decision be 	supported by 	reference 	to 	statutes 	or
precedent; 	and
6. 	There 	is 	no 	evidence 	that 	the District gives
instructions 	to 	its 	hearing officers 	regarding whether 	they are
required 	to 	follow 	the 	rules 	of 	evidence 	and whether 	they must
rule on objections, 	whether employees 	are 	entitled to cross-
examination, 	or whether 	summation briefs 	may be 	filed.
Based on the 	above 	factors, 	the ALJ 	concluded 	that 	the
authority 	exercised by 	Hearing 	Officer Atma 	in 	the 	merit 	system
proceeding was 	administrative 	rather 	than 	judicial. 	The ALJ
rejected 	the 	fact 	that 	Hearing 	Officer Atma 	may have 	conducted
the 	hearing 	in accordance with 	some 	of 	the 	trappings 	of 	judicial
authority 	as 	not 	determinative 	of 	whether 	the proceeding was
judicial 	in nature. 	The ALJ 	also 	noted 	that 	the 	hearing was 	held
by 	the 	same 	entity 	that 	decided 	to 	terminate 	Baddour 	and was
dominated by 	the 	District 	itself. 	The ALJ 	took 	the 	position 	that
4Education Code 	section 	45113 	states 	the 	"Burden of 	Proof
shall 	remain 	with. the 	governing board," 	but 	there 	is 	no 	reference
to 	that 	code 	section 	in the Rules.
« |
34

if 	the 	hearing officer 	is 	not 	required 	to grant 	certain rights
there is a failure 	of 	due 	process, 	whether 	or 	not 	those 	rights
were 	in 	fact 	granted.
The ALJ 	also 	noted 	that 	there 	are 	two 	separate 	and 	distinct
issues 	that were 	not 	the 	subject 	of 	the 	hearing 	officer's
decision but 	which were 	raised 	in 	the 	unfair practice 	proceeding
before 	PERB. 	Those 	issues 	are:
1. 	Whether 	that portion of 	the unfair practice 	charge
challenging 	the 	District's 	denial 	of 	1983 	summer 	school
employment 	to 	Baddour was 	barred by 	the 	six month 	statute 	of
limitations; and
2. 	Whether the District unlawfully refused to pay overtimes/
that was 	owing to Ms. 	Baddour 	in violation of 	section 3543.5 (a).5
Respondent's 	Exceptions 	Filed 	in Baddour 	II
The 	District 	excepts 	to 	the ALJ's 	proposed decision 	in
Baddour 	II 	on the grounds 	that:
1. 	The ALJ 	erred 	in concluding 	that 	lack of 	identity of
issues: precludes 	application of 	the 	doctrine 	of 	collateral
estoppel 	in this 	case;
2. 	The ALJ 	erred 	in concluding 	that 	the merit 	system
dismissal 	proceedings, 	wherein the 	issue 	of 	cause 	for 	termination
was 	tried, 	were not quasi-judicial;
3. 	The ALJ 	erred 	in not 	applying 	collateral 	estoppel 	to 	the
findings 	of 	the 	merit 	system hearing 	officer 	that 	the 	cause 	for
5No* except ions *were filed by either party to the ALJ's
determination in Baddour I 	as 	to this 	issue. 	We will 	not,
therefore, 	address the 	issue here.
,
5
35

the 	d i s m i s s a l 	w a s 	m i s c o n d u c t 	and 	that 	Baddour 	w o u l d 	have 	b e e n
d i s m i s s e d 	for 	misconduct 	regardless 	of 	her 	p a r t i c i p a t i o n 	in
p r o t e c t e d 	activity; 	and
4. 	The 	ALJ 	erred 	in 	not 	requiring 	a p p l i c a t i o n 	of 	the
d o c t r i n e 	of 	collateral 	estoppel 	to 	any 	issue 	of 	u n l a w f u l
m o t i v a t i o n 	for 	Baddour's 	t e r m i n a t i o n 	w h i c h 	was 	raised, 	or 	could
h a v e 	b e e n 	raised, 	in 	the 	dismissal 	p r o c e e d i n g .
The 	D i s t r i c t 	i n c o r p o r a t e s , 	by r e f e r e n c e , 	the 	e x c e p t i o n s 	it
o r i g i n a l l y 	filed 	in 	Baddour 	I 	that 	w e r e 	not 	addressed 	by 	the
Board 	in 	its 	d i s p o s i t i o n 	of 	that 	c a s e .
Baddour ' a 	Response 	to 	Respondent's
Exceptions 	to 	Proposed 	Decision
In her 	r e s p o n s e 	to 	the 	D i s t r i c t ' s 	exceptions 	in 	B a d d o u r 	I I ,
B a d d o u r 	c o n t e n d s :
1. 	As 	the 	transcript 	is 	incomplete 	in 	that 	it 	lacks 	three
days 	of 	t e s t i m o n y , 	the 	transcript 	cannot 	be 	relied 	u p o n 	to
e s t a b l i s h 	what 	occurred 	at 	the 	merit 	system 	h e a r i n g ;
2. 	There 	is 	no 	identity 	of 	issues 	b e t w e e n 	the 	PERB 	h e a r i n g
and 	merit 	system 	h e a r i n g 	b e c a u s e :
(a) 	evidence 	of 	all 	p r o t e c t e d 	activities 	engaged 	in 	by
the 	charging 	p a r t y 	w a s 	p r o p e r l y 	considered 	by 	the 	PERB 	A L J ; 	and
(b) 	the 	merit 	system 	hearing 	officer 	did 	not
a d j u d i c a t e 	the 	issue 	of 	r e t a l i a t i o n 	for 	the 	exercise 	of 	p r o t e c t e d
a c t i v i t i e s ;
3. 	The 	merit 	system 	hearing 	officer 	did 	not 	render 	a
j u d i c i a l 	or 	quasi-judicial 	d e c i s i o n ; 	and
.
36
•
Baddour• a

4. 	Policy dictates 	that 	the 	decision of 	the 	merit 	system
hearing 	officer 	not 	be 	given 	collateral 	estoppel 	effect.
Analysis 	of 	District's 	Exceptions 	Filed 	in Baddour 	II
The 	District 	asserts 	three 	exceptions 	to 	the ALJ's
conclusion that 	a 	lack of 	identity 	of 	issues 	between the 	merit
system proceeding 	and 	the 	unfair 	practice 	charge 	proceeding
precludes 	application of 	the 	doctrine 	of 	collateral 	estoppel.
The District's 	first 	argument 	is 	a 	technical 	one. 	The
District 	contends 	that 	the 	issue 	of 	whether 	Baddour was 	dismissed
based 	on 	her 	alleged 	protected 	activity 	of 	requesting 	union
representation 	at 	counseling 	and 	performance 	evaluation 	meetings
was 	never 	before" PERB. 	Since 	the 	issue was never properly before
PERB, 	the District argues, 	the ALJ's 	refusal 	to give collateral 	.
estoppel 	effect 	to 	the 	merit 	system hearing 	officer's 	decision
based on the 	fact 	that 	the 	representation 	issue 	was 	not
adjudicated 	in 	the 	dismissal 	proceeding 	is 	erroneous.
The 	District's 	contention 	that 	the 	issue 	of 	Baddour's
representational 	requests 	was 	never properly before 	the 	Board 	is
based, 	in part, 	upon the 	fact 	that 	the 	amended complaint did not
specifically 	reference 	Baddour's 	requests 	for 	representation 	as
one 	of 	the 	protected 	activities 	motivating 	the 	denial 	of 	summer
employment 	in 	1983, 	or Baddour's discharge 	in November 	1983. 	The
amended 	complaint 	alleged 	that 	the 	District 	denied 	Baddour 	summer
employment 	and then dismissed her because: 	(1) 	she participated
in a PERB unfair practice charge 	in 	1981; 	and 	(2) 	she 	filed a
grievance 	in July 	1983. 	The 	District 	notes 	that 	Baddour moved,
37

during 	the 	hearing, 	to 	amend her 	complaint 	to 	add 	the 	request 	for
representation allegations, 	but 	then withdrew the motion.
Baddour's withdrawal 	of 	the motion, 	the District argues, 	supports
its 	contention 	that 	the 	allegations 	regarding 	Baddour's 	requests
for representation were 	not before 	the ALJ. 	Furthermore, 	the
District 	contends, 	any claims 	based on allegations 	that 	Baddour
requested, 	and was 	denied, 	union representation would be 	barred
by the 	statute 	of 	limitations.
The 	District 	is 	correct 	in 	its 	assertion 	that 	any 	claim that
the 	District 	violated 	EERA by 	denying 	Baddour 	union
representation 	at 	various 	counseling 	and performance 	evaluation
meetings*is*barred by«the 	six month 	"statute of limitations, "
the 	last 	of 	those 	requests 	occurred 	in January 	1983 	and 	the
unfair practice 	charge was 	filed May 	16, 	1984. 	Baddour's
contention, 	when 	she 	attempted 	to 	amend her 	complaint 	at 	hearing,
however, 	was 	not 	that 	the 	denial 	of 	representation 	itself was 	a
violation of 	EERA, 	but 	rather that 	the 	requests 	for
representation 	constituted part 	of 	a 	pattern of 	protected
activity 	that 	motivated 	the 	denial 	of 	summer 	school 	employment
and dismissal. 	The 	statute 	of 	limitations 	does 	not 	preclude
consideration of 	evidence 	of 	events 	occurring prior 	to 	the 	six
month 	time period where 	such 	evidence 	sheds 	light 	on 	the 	alleged
violation. 	(Lemoore Union High School 	District 	(1982) 	PERB
Decision No. 	271.) 	As 	the 	requests 	for 	representation are
intertwined with 	the 	termination decision, 	the 	Board may 	consider
the 	totality 	of 	evidence, 	including 	the 	requests 	for
>as | 5
38

representation, 	as background to Baddour's 	termination.
(California 	State 	University. 	Hayward 	(1991) 	PERB Decision No.
869-H.)
The 	fact 	that 	Baddour's 	requests 	for 	representation did 	not
formally become part 	of 	the 	complaint 	is 	not 	determinative 	of 	the
question of 	whether 	the 	issue 	of 	retaliation based upon 	those
requests 	for union 	representation was 	properly before 	the 	ALJ.
Applying, 	by analogy, 	the 	test 	for when the 	Board may entertain
unalleged violations, 	we 	note 	that 	the unalleged 	facts 	are
intimately 	related 	to 	the 	complaint, 	the 	conduct 	in question was
part 	of 	the 	same 	course 	of 	conduct 	as 	alleged 	in the 	complaint,
it was 	fully 	litigated 	and 	the 	parties 	had 	an opportunity 	to
examine 	and 	cross-examine witnesses 	to 	the 	request 	for
representation 	incidents. 	(Tahoe-Truckee 	Unified 	School 	District
(1988) 	PERB Decision No. 	668, 	pp. 	6-10.) 	Thus, 	the issue of
whether 	the 	District 	retaliated 	against 	Baddour 	based 	on 	her
requests 	for 	representation was 	properly before 	the ALJ.
Next, 	the 	District 	argues 	that 	the ALJ 	erred 	in not 	applying
collateral 	estoppel 	to 	the 	finding 	of 	the 	merit 	system hearing
officer 	that 	cause 	existed 	to 	dismiss 	Baddour 	for misconduct.
The District 	claims 	that 	even assuming, 	arguendo, 	the 	existence
of 	an anti-union motive, 	the 	findings 	and conclusions 	of 	the
merit 	system 	hearing 	officer 	conclusively 	established 	Baddour
would have 	been discharged 	even 	if 	she 	had 	not 	engaged 	in
protected 	activity.
39

The 	District's 	argument 	must 	be 	rejected 	for 	the 	reason 	that
the 	merit 	system proceeding 	in 	this 	case 	dealt 	only with 	the
issue 	of 	cause 	for 	termination 	and did 	not 	deal 	specifically with
the 	underlying 	issue 	of 	whether 	Baddour's 	involvement 	in
protected 	activities 	was 	the 	underlying motivation 	for 	that
termination, 	a quite different question. 	Thus, 	although the
decision 	in 	the 	dismissal 	proceeding 	answered 	the 	question of
whether the District had cause, 	and therefore 	the option, 	to
dismiss 	Baddour, 	the 	question of whether 	the 	District would have
exercised 	that 	option 	to 	dismiss 	Baddour 	had 	she 	not 	been
involved 	in protected 	activity was 	never 	addressed 	in 	that
proceeding.
In 	fact, 	neither the 	transcript 	of 	the merit 	system
proceeding 	nor 	the 	decision 	of 	the 	merit 	system hearing 	officer
reflect 	that 	the 	issue 	of 	retaliation 	for protected 	activities
was 	fully 	litigated. 	A review of 	the 	partial 	transcript 	of 	the
merit 	system hearing does 	not 	reveal 	a 	full 	exploration of 	the
tissue 	of 	Baddour's 	involvement 	in protected 	activities 	under
EERA. 	Neither 	the 	opening 	nor 	closing 	statements 	reference
Baddour's 	participation 	in union activities. 	Neither Baddour's
participation 	in 	the 	unfair 	labor practice 	in 	1981 	nor her 	filing
of 	a 	grievance 	in July of 	1983 	are 	even mentioned 	in the partial
transcripts 	of 	the 	merit 	system hearing. 	Baddour's 	requests 	for
representation 	(which 	sometimes 	specified 	union 	representation
and 	sometimes 	only 	specified 	the 	presence 	of 	an 	employee 	witness)
at 	counseling 	and performance 	evaluation hearings 	are 	mentioned
40

in witness 	testimony, 	almost 	in passing, 	and then usually 	in
connection with whether Baddour's putting conditions upon meeting
with her 	supervisor was 	reasonable. 	The parties' 	CBA was
introduced 	by 	the 	District 	solely 	to 	demonstrate 	that 	the
District's 	denial 	of 	Baddour's 	request 	for 	a union 	representative
at 	a particular 	counseling 	session was 	not 	in violation of 	the
CBA.
Likewise, 	a 	review of 	the merit 	system hearing officer's
decision 	does 	not 	clearly 	establish whether 	he 	considered 	the
issue 	of 	the 	impact 	of 	Baddour's 	involvement 	in union activities
ton her dismissal. 	In fact, 	the only portions 	of 	the merit 	system
hearing officer's 	decision that 	can possibly be 	construed 	as
referencing 	Baddour's 	requests 	for 	union 	representation 	or
involvement 	in other union activities 	appear 	in 	finding nos. 	5,
12 	and 	16. 	Thus, 	the merit 	system hearing officer 	found:
5. 	The 	Employee 	failed 	to 	comply with
directions 	to 	schedule 	and 	attend meetings
with 	the 	Employee's 	supervisor 	and 	other
Department 	of 	Transportation personnel 	as
well 	as 	recognize 	a 	revised department
structure.
The 	Employee's 	allegation of 	fear 	of 	harm was
not 	reasonable 	and 	justification not 	to
attend meetings 	was 	lacking.
The 	Employee's 	concerns 	as 	to potential 	harm
were 	not 	supported 	based 	on 	evidence
presented at 	this 	Hearing.
The 	Employee 	asserted 	that 	attempts 	were 	made
to comply with such directives. 	But, 	the
qualifications 	and 	conditions 	placed 	by 	the
Employee 	amounted 	to 	rejection by 	the
Employee 	of 	directives 	to 	schedule meetings
or attend those 	scheduled. . 	(Sic.)
:?;
41

The 	Employee was 	as 	a 	result 	insubordinate.
1 2 . , The allegation of 	retaliation by the
District 	against 	the 	Employee was 	not proven.
Evidence 	of 	prior 	complaints 	by 	the 	Employee
was 	not 	linked to 	the 	substances 	of 	the
dismissal 	of 	the 	Employee.
16. 	The 	Employee's 	claim that 	the District
was 	exercising 	this 	dismissal 	action due 	to
the 	Employee's 	exercise 	of 	personal 	rights
was without merit. 	The 	Employee 	sought 	to
exercise 	personal 	rights 	and 	such 	exercise
became 	wrongful 	when 	such 	exercise 	interfered
with 	the 	rights 	of 	fellow Employees 	and 	the
District's 	authority.
These 	findings 	of 	the 	merit 	system hearing 	officer 	are 	too
ambiguous 	to be 	held determinative 	of 	the 	issue 	of 	whether
Baddour 	was 	dismissed 	in 	retaliation 	for 	her 	involvement 	in 	union
activities. 	As 	the 	PERB ALJ pointed out:
Nowhere 	in 	Hearing 	Officer Atma's 	decision
was 	there a discussion of 	the 	PERB, 	NLRB or
any 	other 	applicable 	labor 	relations 	law
regarding 	the 	circumstances 	under which 	an
employee 	has 	a 	right 	to have 	a 	representative
present 	during 	specified 	meetings 	with 	a
supervisor.
Perhaps 	more 	to 	the point, 	nothing 	in the decision clearly
indicates 	whether 	the 	merit 	system 	hearing 	officer 	specifically
considered whether 	Baddour's 	union 	activities 	impacted 	the
District's 	decision 	to 	terminate 	Baddour.
Next, 	the District 	argues 	that 	even assuming the 	issue 	of
retaliation 	for protected 	activity was 	not 	raised 	in 	the 	merit
system proceeding, 	collateral 	estoppel 	should 	nevertheless 	apply
because 	the 	issue 	could have 	been raised. 	In making 	this
argument 	the 	District 	relies 	primarily on 	the 	case 	of 	Takahashi
v. 	Board of 	Education 	(1988) 	202 	Cal.App.3d 	1464 	[249 	Cal.Rptr.
42

578] ( 	Takahashi) . 	In that case, 	the court applied collateral
cestoppel?to bar 	the 	plaintiff 	from pursuing 	a 	civil 	rights
lawsuit 	on the 	grounds 	that 	the 	civil 	rights 	claims 	should have
been 	raised 	as 	a 	defense 	in her hearing before 	the 	Commission 	on
Professional 	Competence 	(Commission).
First, 	it 	is 	interesting to note 	that 	case precedent 	is 	not
at 	all 	consistent 	in addressing 	the 	question of whether
collateral 	estoppel 	can be 	applied 	to bar 	issues 	which were 	not,
but could have been, 	litigated in a prior proceeding. 	Thus, 	in
Knickerbocker v. 	City of 	Stockton 	(1988) 	199 	Cal.App.3d 	235 	at p.
2 4 5 , 	[244 Cal.Rptr. 	764] 	the Third District Court of Appeal
described 	collateral 	estoppel 	as 	follows:
On the 	other hand, 	issue preclusion 	is 	just
that; 	it prevents 	a party 	from relitigating
an 	issue 	he 	fully 	and 	fairly 	litigated 	on 	a
previous occasion. 	[Citation omitted] . 	But
it 	is 	not 	a 	complete bar to 	the maintenance
of 	another action between 	the parties. 	As 	we
have noted, 	it 	operates 	only as 	an estoppel
or 	conclusive 	adjudication as 	to 	those 	issues
in 	the 	second proceeding which were 	actually
litigated 	and 	determined 	in 	the 	first
proceeding. 	[Citation omitted.]
(Emphasis 	added.)
In the 	case 	of 	State 	Personnel 	Board v. 	Fair 	Employment 	&
Housing Commission 	(1985) 	39 Cal.3d 422 	[217 Cal.Rptr. 	16] 	(SPB
v. 	FEHC) 	the 	California 	Supreme 	Court 	specifically held that:
. 	the FEHC should be 	sensitive to the
constitutional 	functions 	of 	the 	[SPB] 	and
should 	take 	into 	account 	any prior
determinations 	of 	the 	Board when a 	matter
previously 	decided 	by 	that 	body 	comes 	before
the 	FEHC. 	The degree of 	deference 	that
should be given to 	the 	Board's 	findings 	and
conclusions 	will 	depend 	on 	the 	individual
case. 	If 	the FEHC 	is 	satisfied that 	a
43
------------

particular 	issue 	presented to 	it 	was
sufficiently 	explored 	and 	decided 	by 	the
Board, 	then it may, 	in comity, 	bar
relitigation of 	the 	issue.
(Id. 	at p. 	443; 	emphasis added.)
In the 	course 	of 	its 	analysis, 	the 	court observed how authorities
in 	other 	jurisdictions 	have 	resolved 	apparent 	conflicts 	between
jurisdictions.
For example, 	the 	court 	noted 	that 	in Town of 	Dedham v.
Commission 	(1974) 	312 N.E.2d 548 	[86 LRRM 2918] , 	the
Massachusetts 	Supreme 	Judicial 	Court 	observed 	in 	a 	related
context:
Considering 	the 	indissoluble 	linkage 	of 	the
character of the tribunal, 	its procedure, 	and
the 	substantive law that 	it enforces, 	[Fn.
omitted.] 	it 	seems 	clear that 	the parties
before 	the 	Civil 	Service 	Commission would
not--and 	in the 	nature 	of 	things 	could not--
secure 	from 	that 	body 	alone 	substantive
rights 	equivalent 	to 	those 	assigned by 	the
statute 	for 	enforcement 	to 	the 	other
commission. 	So the 	idea of using the Civil
Service 	Commission to 	act 	as 	a 	substitute 	for
the 	Labor 	Relations 	Commission 	in 	cases
involving 	employees 	in 	the 	civil 	service
would 	turn out 	to 	be 	quite 	unsatisfactory.
It must, 	after all, 	have been a prime
legislative 	purpose 	in 	creating 	the 	Labor
Relations 	Commission 	to promote 	uniformity
rather 	than 	disuniformity 	of 	interpretation
and 	application of 	the 	labor 	law.
(Id. 	at p. 	2923.)
With 	regard 	to 	the 	question of 	whether 	collateral 	estoppel
applies 	if 	an 	issue 	could have 	been 	raised before 	the 	first
agency but was 	not 	actually raised, 	the 	court 	stated:
Although 	the 	charge 	before 	the 	Civil 	Service
Commission was 	"insubordination," 	it was 	not
improbable 	that 	the question of 	anti-union.
bias 	might 	come 	up 	in the 	unfolding of 	the
facts 	as 	possibly qualifying 	or 	negating 	the
44

charge. 	The record, 	however, 	does not
disclose 	that 	the question did come up; 	if 	it
did, 	there 	is 	no 	indication of what 	attention
it actually received. 	In this 	situation, 	it
would be 	strange' 	indeed to 	say that 	the 	Labor
Relations 	Commission 	lacked 	"jurisdiction" 	to
proceed with 	an 	inquiry 	into 	anti-union 	bias
upon a 	complaint 	before 	it 	charging 	a
prohibited practice. 	This 	consideration 	is
enough 	to dispose 	of 	the present
appeal.
We 	think we 	should go 	on to 	say that, 	had 	the
Civil 	Service 	Commission 	examined 	into 	the
motivation of 	the 	suspension as 	a phase 	of
the 	question whether 	the 	employee was 	in 	fact
insubordinate, 	and had 	it 	ruled against 	the
employee, 	then the Labor Relations
Commission, 	in comity, 	could properly take
the 	ruling 	of 	the 	other 	agency 	into 	account
as 	support 	for 	a determination to dismiss 	the
employee's 	concurrent 	complaint 	charging 	a
prohibited practice. 	But 	the 	Labor Relations
Commission would 	not 	be 	deprived 	of
"jurisdiction, " 	and 	if not 	satisfied that 	the
question of 	anti-union bias 	had been
sufficiently explored, 	could decline 	to
dismiss, 	issue 	its own complaint, 	and proceed
to prosecute 	and 	later 	grant 	relief 	which
might 	comprehend 	"reinstatement" 	and more.
[Fn. omitted.]
(Id. 	at p. 	2924.)
Thus, 	there 	is 	authority and rationale 	to 	support 	an argument
that 	collateral 	estoppel 	should 	operate 	only 	to 	bar 	relitigation
of 	issues 	actually 	raised 	and decided 	in 	a prior proceeding.
Furthermore, 	Takahashi. 	relied upon by the District 	for the
proposition 	that 	collateral 	estoppel 	bars 	litigation of 	the
retaliation 	issue 	because 	it 	could have 	been raised 	in 	the
dismissal proceeding, 	is 	distinguishable 	from the 	case before us.
In Takahashi, 	the 	court 	specifically noted 	that 	Government 	Code
sections 11505 	and ll506 	gave 	plaintiff 	"the 	right 	and 	power 	to
assert 	any defense 	to 	the 	Incompetency 	charge, 	including defenses
45

based 	on 	allegations 	that 	her 	constitutional 	and 	civil 	rights
were being violated . " In contrast, 	the 	Rules 	governing Baddour's
dismissal 	proceeding were 	ambiguous 	as 	to 	the 	nature 	of 	the
defenses 	that 	could be 	raised 	and 	litigated.
The Rules provide, 	in pertinent part, 	that any classified
employee 	served with 	a 	notice 	of 	dismissal 	may 	request 	a 	hearing
before 	a hearing officer, 	but must base 	such request:
. 	only on the 	following grounds:
a. 	That 	the procedures 	set 	forth by 	the 	Merit 	System
Rules 	have 	not 	been 	followed by 	the 	Board 	of
Education or 	its 	officers.
b. 	That 	sufficient 	cause 	does 	not 	exist 	to 	justify
the 	action of 	the 	Board of 	Education.
c. 	That 	there 	has 	been an abuse 	of 	discretion.
(See Article 	IX, 	section 5 	of 	the Rules.)
These 	same 	Rules 	restrict 	the parameters 	of 	the 	hearing 	as
follows:
The 	hearing 	shall 	be 	confined 	to 	the 	reasons
for 	action 	set 	forth by 	the 	Superintendent 	of
Schools 	in the written charges 	and to
relevant 	defenses 	set 	forth 	in the 	appeal.
(See Article 	IX, 	section 6 	of 	the Rules.)
Thus, 	the Rules 	give no 	fair notice 	that discrimination or
retaliation may be 	raised as 	a 	defense. 	The 	ambiguity of 	the
Rules 	as 	to whether 	the 	defense 	of 	retaliation 	for 	EERA protected
activities 	could be 	raised 	in 	a 	dismissal 	proceeding 	further
supports 	a 	conclusion that 	collateral 	estoppel 	should 	not 	apply
to bar 	litigation of 	that 	issue 	before 	PERB 	on the 	ground 	it
could 	have 	been 	raised.
Next 	the District 	argues 	that 	the ALJ 	erred 	in 	concluding
that 	the dismissal 	proceeding was 	not 	quasi-judicial. 	As 	we
46

would 	find no 	identity of 	issues, 	we 	need not 	decide whether 	the
dismissal 	proceeding was quasi-judicial.6
As 	we 	conclude 	that 	collateral 	estoppel 	does 	not 	apply 	to
bar 	continued 	litigation of 	the 	issue 	of 	whether 	Baddour was
dismissed 	in 	retaliation 	for 	the 	exercise 	of 	protected
activities, 	we 	now turn to 	the 	remaining 	exceptions 	filed by the
District 	in Baddour 	I.
BADDOUR 	I
ALJ 	Decision
The ALJ 	first 	addressed 	the 	issue 	of 	whether 	the 	District
took 	its 	action against 	Baddour because 	of 	her protected
activities. 	Preliminarily, 	the ALJ 	set 	forth the 	test 	for
retaliation as 	established! 	in Novato Unified School 	District
. (1982) 	PERB Decision No. 	210 	(Novato) 	as follows:
In order 	to 	establish a prima 	facie 	case,
charging party must 	first 	prove 	the 	subject
employee 	engaged 	in protected 	activity.
Next, 	it must 	establish that 	the 	employer had
knowledge 	of 	such protected 	activity.
Lastly, 	it must prove 	that 	the 	employer took
the 	subject adverse personnel 	action, 	in
whole 	or 	in part 	due 	to 	the 	employee's
protected 	activities.
(Baddour I, p. 7 9. )
The 	ALJ 	found 	that 	Baddour 	engaged 	in protected 	activities
as follows:
6We note, 	however, 	that, 	in this particular case, 	the
potential 	due 	process 	problem 	raised by 	the 	fact 	that 	we 	have 	no
verbatim transcript of 	the hearing. 	(See 	People v. 	Sims 	(1982)
32 	Cal.3d 468 	[186 	Cal.Rptr. 	77] 	in which the California Supreme
Court found a verbatim record of 	the 	proceedings" v 	to 	be 	a 	factor
in, the determination of which a proceeding possessed a 	"judicial
character.")
- -
L .
47

(1) 	B a d d o u r 	d e m a n d e d 	that 	she 	be 	g i v e n u n i o n
r e p r e s e n t a t i o n 	at 	the 	"scheduled" 	e v a l u a t i o n
in 	O c t o b e r 	1982,i 	the 	u n s c h e d u l e d 	e v a l u a t i o n
in 	January 	1983 	and 	the 	u n s c h e d u l e d
e v a l u a t i o n 	in 	May 	1 9 8 3 . 7
(2) 	Baddour 	filed 	a 	g r i e v a n c e 	in 	the 	summer 	of
1983 	over 	the 	D i s t r i c t ' s 	failure 	to 	offer 	her
summer 	e m p l o y m e n t ;
(3) 	Baddour 	p a r t i c i p a t e d 	in 	the 	1982 	"summer 	school
e m p l o y m e n t " 	u n f a i r 	p r a c t i c e 	c h a r g e ;
(4) 	B a d d o u r 	had 	some 	involvement 	in 	the
installing 	of 	a 	time 	clock 	at 	Base 	t w o .
N e x t , 	the 	A L J 	examined 	the 	q u e s t i o n 	of 	w h e t h e r 	the 	D i s t r i c t
had 	k n o w l e d g e 	of 	Baddour's 	p r o t e c t e d 	activity. 	The 	ALJ 	c o n c l u d e d
t h a t :
T h e r e 	is 	no 	doubt 	that 	the 	District 	w a s 	aware
of 	[Baddour's] 	insistence 	on 	r e p r e s e n t a t i o n
at the three e v a l u a t i o n m e e t i n g s . 	. 	. 	. 	The
D i s t r i c t 	w a s 	also 	aware 	that 	she 	filed 	a
g r i e v a n c e 	in 	the 	summer 	of 	1983 	over 	the
failure 	to 	offer 	her 	summer 	e m p l o y m e n t , 	as
she 	filed 	it w i t h 	the D i s t r i c t 	itself.
(Baddour 	I, 	p p . 	84-85.)
The 	A L J 	recognized 	a 	proof 	problem 	as 	to 	the 	D i s t r i c t ' s
k n o w l e d g e 	of 	Baddour's 	p a r t i c i p a t i o n 	in 	the 	1982 	"summer 	school
e m p l o y m e n t " 	u n f a i r 	p r a c t i c e 	charge 	and 	the 	time 	clock 	p l a c e m e n t .
N e v e r t h e l e s s , 	the 	ALJ 	found 	that 	the 	evidence 	supported 	an
inference 	that 	the 	District 	w a s 	aware 	Baddour 	w a s 	an 	o u t s p o k e n
a d v o c a t e 	of 	u n i o n 	r e p r e s e n t a t i o n 	and 	w o u l d 	consult 	w i t h 	the 	u n i o n
7 In 	finding 	these 	requests 	for 	r e p r e s e n t a t i o n 	to 	be
p r o t e c t e d 	a c t i v i t i e s , 	the 	ALJ 	relied 	on 	the 	case 	of 	R e d w o o d s
C o m m u n i t y C o l l e g e 	District 	(1983) 	PERB 	D e c i s i o n N o . 	2 9 3 . 	He
n o t e d 	that 	the 	collective 	b a r g a i n i n g 	agreement 	b e t w e e n 	the
p a r t i e s 	did 	not 	constitute 	a 	clear 	and 	u n m i s t a k a b l e 	w a i v e r 	of 	an
employee's right to have 	a 	r e p r e s e n t a t i v e 	p r e s e n t 	at 	a 	m e e t i n g 	or
c o n f e r e n c e 	w h i c h 	the 	employee 	r e a s o n a b l y 	b e l i e v e d 	w o u l d 	result 	in
d i s c i p l i n a r y 	a c t i o n .
7
48

in any dispute 	she 	had with the 	department. 	The ALJ 	then 	listed
what he 	referred to as 	13 . "separate manifestations 	of negative
departmental 	interest 	in Baddour's 	activities,"8 noted 	testimony
that 	Baddour's 	involvement 	in 	the 	time 	clock 	and 	summer 	school
employment 	unfair practice 	charge 	was 	common knowledge 	among 	the
drivers, 	and drew an inference 	that:
The 	totality 	of 	the 	evidence 	presented 	showed
a 	pattern of 	activity on 	the 	part 	of 	the
department 	which 	manifested 	its 	extreme
sensitivity 	towards 	anyone 	that 	attempted 	to
bring 	an 	outsider 	into 	the 	Department's
affairs. 	Much of 	the 	sensitivity was
directed towards Baddour.(Baddour I, p. 8 8 . )
The ALJ 	concluded 	that 	the 	department's 	denial 	of 	any knowledge
of 	Baddour's 	activities 	with 	regard 	to 	her protected 	activities
was 	not 	credible.
The ALJ next 	turned his 	attention to 	the 	question of whether
the 	District 	took 	action 	against 	Baddour because 	of 	her protected
activities. 	The ALJ prefaced his 	discussion of 	this 	issue with a
disclaimer 	that:
. 	. 	PERB is not empowered to determine
whether 	the 	Respondent 	was 	justified 	in
terminating 	its 	employment 	relationship with
Baddour 	insofar 	as 	the 	reasons 	for 	such
termination are 	not 	violative 	of 	the 	EERA.
(Baddour I, p. 	89. )
Nevertheless, 	the ALJ 	found 	it 	necessary to 	examine 	the 	reasons
given 	for 	the 	termination 	to 	determine 	whether 	the 	reasons
reasonably 	supported 	the 	termination or, 	conversely, 	whether 	they
8 These 	13 	examples 	generally 	involved 	testimony by witnesses
who 	heard 	certain 	remarks 	from management 	regarding 	Baddour.
•
•8
49

w e r e 	p r e t e x t u a l . 	A 	d e t e r m i n a t i o n 	that 	reasons 	g i v e n 	by 	the
e m p l o y e r 	are 	not 	s u f f i c i e n t l y 	p l a u s i b l e 	to 	support 	the
t e r m i n a t i o n , 	the 	A L J 	n o t e d , 	w o u l d 	give 	rise 	to 	an 	inference 	that
t h e r e w a s 	some 	o t h e r 	r e a s o n 	for 	the 	t e r m i n a t i o n , 	i.e. 	that 	the
e m p l o y e e 	w a s 	terminated 	due 	t o 	p r o t e c t e d 	a c t i v i t i e s . 	The 	A L J
t h e n 	p r o c e e d e d 	to 	examine 	each 	of 	the 	incidents 	set 	forth 	in 	the
D i s m i s s a l 	A c c u s a t i o n 	served 	o n 	B a d d o u r . 	His 	c o n c l u s i o n s 	w i t h
r e s p e c t 	to 	each 	of 	these 	incidents 	follow.
(1) 	T a k i n g p h o t o g r a p h s 	of 	e m p l o y e e s 	in h e a d q u a r t e r s 	l o t .
T h e 	A L J 	d e t e r m i n e d 	that 	the 	taking 	of 	p h o t o g r a p h s 	of 	o t h e r
e m p l o y e e s 	in 	the 	h e a d q u a r t e r s 	lot 	w a s 	not 	the 	type 	of 	a c t i v i t y
t h a t 	w o u l d 	c a u s e 	a n 	e m p l o y e e 	o f 	the 	D i s t r i c t 	t o 	b e 	d i s c i p l i n e d
and 	t h e r e f o r e 	w a s 	not 	r e a s o n a b l y 	relied 	u p o n 	by 	the 	D i s t r i c t 	to
support 	some 	level 	of 	d i s c i p l i n e 	of 	B a d d o u r .
(2) 	D r i v i n g 	into 	the 	h e a d q u a r t e r s 	lot 	on 	at 	least 	s e v e n
o c c a s i o n s .
The 	A L J 	found 	that 	B a d d o u r 	w a s 	the 	m o s t 	p e r s i s t e n t 	of 	the
v i o l a t o r s 	of 	the 	p o l i c y 	p r o h i b i t i n g 	e m p l o y e e s 	from 	d r i v i n g 	t h e i r
p e r s o n a l 	cars 	o n t o 	the 	p a r k i n g 	lot. 	The 	A L J 	c o n c l u d e d 	that
B a d d o u r 	engaged 	i n 	her 	c o n f r o n t a t i o n a l 	b e h a v i o r 	r e g a r d i n g 	the
d r i v e - i n 	p o l i c y 	at 	a 	risk 	to 	h e r 	e m p l o y m e n t 	status 	and 	that 	the
D i s t r i c t 	w a s 	justified 	in 	taking 	some 	sort 	of 	a c t i o n 	to 	p u n i s h
h e r 	for 	this 	c o n f r o n t a t i o n a l 	b e h a v i o r .
(3) 	Rude 	to 	Barry W e s t o v e r 	on 	six 	o c c a s i o n s .
T h e 	A L J 	found 	neither B a d d o u r nor W e s t o v e r . c r e d i b l e , 	r e l y i n g
on 	W e s t o v e r ' s 	d e m e a n o r 	on 	the 	stand. 	The 	A L J 	d e t e r m i n e d 	that
50

Westover had 	the 	capacity 	to openly 	antagonize 	and provoke, 	and
therefore 	concluded 	that 	the 	District 	did 	not 	have 	reasonable
cause 	to 	rely on Westover's 	complaints 	to 	support 	Baddour's
discipline.
(4) 	Rude 	to 	supervisors Dion. 	Tsunoda or Lamar on two
occasions.
Although 	the ALJ 	concluded 	that 	Baddour 	did 	make 	derogatory
comments 	about her supervisor, 	Dion, 	in the presence of District
employees, 	and although he 	recognized 	that 	unsubstantiated
statements 	regarding 	one 	supervisor's 	lack 	of 	veracity 	are
actionable, ! 	he nevertheless 	concluded that 	the District did not
reasonably 	rely 	on 	Baddour's rudeness to Dion in support of its
discipline 	of 	Baddour. 	He 	based his 	conclusion on the 	fact 	that
record 	evidence 	indicated 	that 	Dion had 	lied 	in 	the 	past 	and 	that
the 	District 	did not 	or 	could not 	provide 	evidence 	that 	Dion was
truthful.
Regarding 	Baddour's 	treatment 	of 	Lamar 	and 	Tsunoda 	in 	an
April 	18, 	1983 	meeting wherein she 	shouted and cursed, 	picked up
some 	documents 	that 	were 	being used by 	the 	supervisor 	in 	the
counseling 	session 	and 	left 	the 	room 	slamming 	the 	door 	and
thereby damaging 	it, 	the ALJ 	concluded 	that 	although 	an 	employee
should not 	normally 	curse 	or 	shout 	at 	any 	other 	employee,
especially his/her 	supervisors, 	nor 	should 	she 	grab papers 	or
damage 	the 	door on her way out, 	in this 	case 	the 	supervisors were
rude 	as well. 	The ALJ 	found that 	it was 	rude 	for 	the 	supervisors
to reference complaint forms 	and 	then 	refuse 	the 	employee 	copies
of 	them. 	Thus, 	the ALJ determined that 	Baddour's behavior was
51

not 	rude 	u n d e r 	all 	the 	circumstances 	and 	was 	not 	therefore
treasonably1 relied 	u p o n 	to 	support 	her 	discipline .
(5) 	Rude 	to 	Peguero, 	bus 	a i d e , 	on one o c c a s i o n .
Noting 	that 	if 	Baddour was 	rude 	to 	her bus 	a i d e , 	h e r bus
aide 	w a s 	just 	as 	r u d e , 	the ALJ 	then 	found 	that 	the 	District 	had
told 	B a d d o u r 	that 	the 	incident 	w i t h 	the 	bus 	aide 	w a s 	closed 	and
that 	no 	m e n t i o n 	of 	the 	incident 	would 	be 	placed 	in 	Baddour's
file. 	The 	ALJ 	therefore 	determined 	that 	the 	District 	w a s
estopped 	from 	relying 	on 	the 	incident 	to 	support 	the 	d i s c i p l i n e .
(6) 	Baddour's 	Refusal 	to 	request 	bus 	from D o n 	D u g g a n .
The 	ALJ 	found 	this 	incident 	not 	reasonably 	relied 	u p o n 	to
support 	Baddour's 	discipline 	since: 	(1) 	Duggan 	had 	an unrebutted;
reputation as 	a 	lecher; 	(2) 	Baddour's 	previous 	contact 	w i t h
Duggan w a s 	a 	primary 	reason 	for 	her 	previous 	r e i n s t a t e m e n t ; 	(3)
D u g g a n 	had 	filed 	a 	w r i t t e n 	complaint 	that 	Baddour 	w a s 	threatening
him by 	going 	to 	the 	u n i o n ; 	and 	(4) 	Duggan 	had 	used 	abominable
language 	to 	another 	employee 	about 	Baddour.
(7) 	Failure 	to 	turn 	in bus 	audit 	on one o c c a s i o n .
The 	ALJ 	concluded 	that 	this 	incident 	was 	a 	bona 	fide 	example
of 	insubordination 	and 	w a s 	reasonably 	relied 	u p o n 	to 	support 	the
d i s c i p l i n a r y 	action 	against 	Baddour.
(8) 	F a i l u r e 	to 	n o t i f y 	s u p e r v i s o r w h e n not 	able 	to 	r e p o r t 	on
t i m e 	o n 	one 	o c c a s i o n .
T h e A L J 	found 	this 	incident 	a 	b o n a 	fide 	e x a m p l e 	of
i n s u b o r d i n a t i o n w h i c h 	the 	d e p a r t m e n t 	r e a s o n a b l y 	relied 	u p o n 	t o
support 	its 	disciplinary 	action. 	.
. .
52

(9) 	Refusal to meet w i t h supervisor on 21 separata:.1e:n
o c c a s i o n s .
(a) 	The 	ALJ 	found 	that 	Baddour's 	failure 	to 	meet 	w i t h 	her
supervisor 	regarding 	evaluations 	w a s 	not 	reasonably 	relied 	u p o n
by 	the 	d e p a r t m e n t 	in 	her 	dismissal 	since 	B a d d o u r ' s 	request 	for
r e p r e s e n t a t i o n 	at 	those 	evaluations 	was 	w i t h i n 	her 	r i g h t .
(b) 	R e g a r d i n g 	Baddour's 	failure 	to 	meet 	w i t h 	D i o n 	r e g a r d i n g
the 	P e g u e r o 	i n c i d e n t , 	the 	A L J 	noted 	that 	at 	the 	time 	B a d d o u r
refused 	to 	meet 	w i t h 	D i o n , 	Lamar w a s 	her 	actual 	s u p e r v i s o r , 	but
he 	w a s 	on 	v a c a t i o n . 	The 	A L J 	found 	that 	Baddour 	r e a s o n a b l y
r e f u s e d 	to 	meet 	w i t h 	Dion 	based 	u p o n 	a 	verbal 	p r o v i s i o n 	of 	her. .
EEOC 	settlement 	that 	she 	w o u l d 	not 	have 	to 	work 	for 	or 	w i t h 	D i o n ,
D u g g a n 	or 	R o s s . 	The 	ALJ 	p o i n t e d 	out 	that 	Baddour 	did 	speak 	to 	a
n u m b e r 	of 	m a n a g e m e n t 	personnel 	about 	the 	incident 	and 	c o o p e r a t e d
fully 	w i t h 	them 	and 	w i t h 	h e r 	assigned 	supervisor 	w h e n 	he
r e t u r n e d .
(c) 	The ALJ 	noted 	that 	b e t w e e n October 	1 2 , 	1982 	and
F e b r u a r y 	1, 	1 9 8 3 , 	the 	department 	asked Baddour 	12 	separate 	times
to 	see 	her 	supervisor 	about 	6 	separate 	b u s i n e s s 	m a t t e r s 	involving
h e r 	status 	as 	an 	employee 	and 	her 	relationship 	to 	the 	d e p a r t m e n t .
On 	each 	o c c a s i o n , 	Baddour 	w o u l d 	either 	ignore 	the 	"see 	m e " 	n o t e s
e n t i r e l y , 	or 	circumvent 	the 	m a t t e r 	by 	going 	above 	her 	s u p e r v i s o r
and 	d i s c u s s i n g 	the 	m a t t e r 	w i t h 	L a m a r . 	The 	department 	d o c u m e n t e d
each 	of 	Baddour's 	refusals 	to 	see 	her 	supervisor.
The 	ALJ 	p l a c e s 	great 	emphasis 	u p o n 	the 	fact 	that 	w h e n 	he
asked Stephens, the manager 	w h o 	acted 	on 	the 	r e c o m m e n d a t i o n 	to
eirate
•
53

terminate Baddour, 	whether he was 	curious 	as 	to why Baddour
refused to 	see 	her 	supervisor, 	he 	stated:
I was 	curious, 	I'm sure, 	but my concern was
the net 	result, 	the 	lack of performance 	and
not being able 	to get 	those 	services 	out 	on
. the 	field 	the way we wanted 	them to.
Based on this 	testimony, 	the ALJ 	concluded:
The 	department's 	lack of 	interest 	in 	the
reasons 	behind 	the 	refusal 	of 	one 	employee 	to
report 	to 	her 	supervisor 	go beyond 	an
appalling 	example 	of 	poor personnel
practices. 	They 	suggest 	an ulterior motive
on the part of 	the department, 	a motive 	that
seems 	to 	be 	aimed more 	toward getting 	rid of
a 	person who 	is 	insisting upon 	specified
rights 	and/or 	refusing 	to 	tamely do what
he/she 	is 	told 	than 	in 	solving 	the problem.
... (Baddour I, 	p. 	103.)
The ALJ 	opined 	that 	the 	department's 	failure 	to 	take 	some
sort 	of 	action against 	Baddour 	after 	the 	first 	two 	times 	she
failed 	to 	meet 	with her 	supervisor 	supported 	an 	inference 	that
the 	District 	was 	not 	interested 	in 	solving 	the 	problem but 	only
in making 	sure 	it 	had 	sufficient 	ammunition 	to 	support 	Baddour's
termination. 	The ALJ 	therefore 	concluded:
After a 	thorough analysis 	of 	all 	the 	evidence
in the department's Dismissal Accusation, 	it
is 	determined 	that 	although 	the 	department
was 	justified, 	as early as September, 	1982,
in 	taking 	some 	sort 	of 	disciplinary 	action
against Elizabeth Baddour, 	its 	failure 	to
observe 	even 	the 	most 	basic 	of 	good personnel
practices 	manifests 	an 	intent 	to 	justify
termination rather 	than 	an honest 	attempt 	to
solve 	an 	employer-employee 	relations 	problem.
(Baddour I, 	p. 	104)
Having 	concluded 	that 	the 	department's 	stated 	reasons 	for
Baddour's 	termination were 	without sufficient .evidentiary
support, 	the ALJ 	then turned 	to 	examine what 	other 	reasons 	the
•
54

department 	management 	could 	have 	had 	for 	Baddour's 	termination.
The 	ALJ 	cited 	the 	following 	events 	as 	attesting 	to 	the 	District's
antiunion animus:
1. 	The 	department had nothing negative 	to 	say about
Baddour's 	ability 	to drive 	the 	bus 	or 	take 	care 	of 	the 	children;
2. 	Williams was upset because 	"[Baddour's] 	got 	to go and
get 	the 	union or 	get 	somebody outside 	the 	District 	every 	time 	we
have a talk with her. 	. 	. 	;"
3. 	Rhetta 	considered Baddour a 	"trouble maker;"
4. 	When 	informed 	in 	1981 	of 	a perceived case 	of 	harassment
of Baddour, 	the department, 	rather than investigating the
harassment, 	placed a 	tachograph on Baddour's b u s ;
5. 	When 	it was 	reported 	to 	the 	District by another 	employee
that a dispatcher, 	Duggan, 	was 	referring to 	female employees 	in
derogatory 	terms, 	the 	District 	tried to get 	the 	reporting
employee 	to 	change 	her 	report 	rather 	than disciplining 	the
dispatcher; 	and
6. 	The 	documents 	supporting Baddour's 	termination were
retained 	in violation of 	Education Code 	section 44031 	in 	"Mr.
Stephens' 	private files."
The ALJ 	concluded 	that 	the 	District's 	high 	level 	of
sensitivity 	to 	criticism 	from outside 	sources, 	added 	to 	Baddour's
vocal 	and high profile 	insistence 	on her 	rights, 	supports 	an
inference 	the 	termination was motivated, 	in whole or 	in part, 	by
her participation 	in protected 	activities.
55

Next, 	the ALJ 	addressed 	the 	issue 	of whether Baddour was
Sufficiently 	rude 	and 	insubordinate 	in 	that 	any 	District 	employee
who 	had 	acted 	in 	such 	a way would have 	been 	terminated. 	The 	ALJ
found 	that 	although Baddour may have 	been 	rude, 	her behavior was
sufficiently provoked or 	otherwise 	justified. 	As 	to 	the
insubordination charge 	and drive-in violations, 	the ALJ 	concluded
that 	the 	District 	should have 	taken 	action other 	than merely
documenting 	each violation 	and 	holding 	counseling 	sessions. 	As
to 	Baddour's 	refusal 	to 	see 	her 	supervisor, 	the ALJ 	found 	the
District 	should have 	immediately, 	at 	the 	first 	instance,
scheduled 	a 	disciplinary meeting, 	notified Baddour 	of 	the
impending 	discipline, 	allowed 	for 	a 	union 	representative 	at 	the 	v
meeting, 	and 	explained 	at 	the 	meeting 	she would be 	suspended 	for
a 	limited period 	if 	she 	did not 	accept 	Dion 	as 	her 	supervisor.
The ALJ 	found 	that 	the 	District 	could 	not 	avoid 	the 	problem 	and
merely document 	instances 	of 	"refusal 	to meet with 	supervisor"
and 	then 	insist 	that 	the 	additional 	acts 	of 	insubordination
justified 	termination. 	Based 	on 	the 	above 	mentioned 	findings 	of
fact, 	the ALJ 	concluded 	that 	Baddour was 	terminated because 	of
her 	exercise 	of 	protected 	activity.
Next, 	the ALJ 	addressed the 	issue 	of whether 	that portion of
the 	unfair practice 	charge 	regarding 	the 	District's 	denial 	of 	the
1983 	summer 	school 	employment 	to 	Baddour was 	barred by 	the 	six
month 	statute 	of 	limitations.
The ALJ 	applied 	the 	doctrine 	of 	equitable 	tolling 	to 	find
that 	the 	summer 	school 	grievance, 	filed by Baddour on July 	28,
56

1983, 	was 	timely. 	He 	found that 	the 	statute of 	limitations was
tolled during 	the 	time 	Baddour. prepared 	to 	file 	her 	written
grievance 	until 	the 	time 	the 	grievance was 	declared moot 	by 	the
District 	after 	the 	decision 	in 	the 	dismissal 	proceeding 	issued.
The ALJ 	concluded 	that 	the 	determination as 	to 	the 	statute 	of
limitations 	did not 	resolve 	the 	issue 	of 	whether 	the 	summer
school 	employment 	denial 	constituted a violation of 	the Act. 	He
held 	that 	since 	the 	finality 	of 	Baddour's 	termination was 	negated
by his 	decision, 	the 	grievance would be 	reactivated.
i The ALJ next 	ruled on Baddour's 	contention that 	the
department 	kept 	"bottom drawer" 	files 	and 	failed 	to 	give 	her
timely notice 	of many of 	the documents 	that were used to
substantiate 	her dismissal. 	As 	the 	District 	introduced no
evidence 	of 	its 	own to 	counter Baddour's 	assertions 	in 	this
regard, 	the ALJ 	accepted those 	assertions 	as-true. 	The ALJ 	found
that 	there was 	sufficient 	evidence 	to 	support 	an order 	that 	the
tainted documents, 	those 	that were 	not 	shown to Baddour 	in a
timely manner, 	should be deleted.
Finally, 	the ALJ denied Baddour's 	request 	for 	attorneys
fees.9
9The ALJ 	also made 	findings 	of 	fact 	and 	conclusions 	of 	law
on the 	issues 	of: 	(1) 	whether the District denied arbitration of
Baddour's 	summer 	school 	grievance 	in violation of 	EERA 	section
3543.5(a); 	and 	(2) 	whether the District refused to pay overtime
to Baddour in violation of EERA section 	3543.5(a). 	As 	no
exceptions 	were 	filed 	to 	the ALJ's 	conclusions 	regarding 	these
issues, 	we do not address 	them here.
57

District's 	Exceptions 	in Baddour 	I
The 	District's 	exceptions 	can be 	categorized 	into 	two
groups. 	The 	first 	group of 	exceptions 	may be 	deemed
"procedural." 	Thus, 	the District 	argues 	that 	the ALJ committed
prejudicial 	error 	in denying 	the 	District's 	motions 	to 	dismiss
the 	charge, 	complaint and amended complaint 	since: 	(a) 	the
charge 	should have 	been dismissed because 	it 	failed 	to 	allege 	a
prima 	facie 	case of 	reprisal; 	(b) 	Baddour did not 	establish a
prima 	facie 	case 	that 	she was 	dismissed 	for having 	filed 	a
grievance on July 26, 	1983; 	(c) 	the amended complaint 	should have
been dismissed because 	the 	PERB 	staff 	attorney had 	no 	authority
"to* issue it; sua sponte; 	(d) 	the charge was not timely filed with
respect to the 	alleged unfair practice of June 	1983; 	and 	(e) 	the
sufficiency of 	cause 	for 	Baddour's 	dismissal 	was 	conclusively
established 	in 	the 	prior 	dismissal 	proceeding.
The 	District 	further 	contends 	that 	the ALJ 	committed
prejudicial 	error 	in 	finding 	that 	the 	District 	violated 	the 	EERA
based-on uncharged protected activities because: 	(a) 	the 	finding
of 	a 	violation 	of 	EERA based 	on 	the 	uncharged 	alleged protected
activities denied the District 	judicial 	due process; 	(b) 	Baddour,
through her 	attorney, 	expressly 	elected not 	to 	amend 	the 	charge
to 	include 	an allegation 	that 	she was 	dismissed because 	of 	her
demand 	for 	union 	representation 	at 	counseling 	and 	performance
evaluation sessions; 	and 	(c) 	consideration of 	the additional
charges 	was 	barred by the 	statute 	of 	limitations.
58

Finally, 	the District 	argues 	that 	the ALJ 	erred 	in
concluding that the 	documents 	relating 	to 	Baddour's 	termination,
allegedly kept 	in violation of 	Education 	Code 	section 	44031,
should be 	deleted 	from her personnel 	file. 	The 	District 	contends
that: 	(1) 	the Board agent dismissed Baddour's 	allegation that
the District violated Education Code Section 44031; 	(2) 	the ALJ
had no 	jurisdiction 	to 	order 	compliance with 	the 	Education Code;
and 	(3) 	the ALJ's 	conclusion was 	not 	supported by 	the 	evidence.
The 	second group 	of 	exceptions 	filed by 	the 	District
challenges 	the ALJ's Novato analysis. 	Thus, 	the District argues
that 	Baddour's 	demand 	for 	representation 	at 	evaluation 	sessions
and her 	activities 	related 	to 	the 	time 	clock were 	not protected/
activities because: 	(a) 	neither the 	findings nor the 	evidence
support 	the ALJ's 	conclusion that 	the 	time 	clock 	"activities"
were protected; 	and 	(b) 	Baddour was 	not 	entitled to
representation at 	performance 	evaluation 	sessions.
The 	District 	further 	contends 	that 	the ALJ 	erred 	in
concluding the 	District 	had 	knowledge 	of 	Baddour's 	purported
protected 	activities.
Additionally, 	the 	District 	challenges 	the ALJ's 	conclusion
that 	Baddour's 	termination was 	motivated 	by 	retaliation 	for 	her
participation 	in protected 	activities.
Finally, 	the District 	argues 	that 	the ALJ 	erred 	in
concluding 	Baddour would 	have 	been 	retained but 	for 	the
District's 	unlawful 	motivation 	in dismissing 	Baddour.
59

ANALYSIS 	OF 	DISTRICT'S 	EXCEPTIONS 	FILED 	IN BADDOUR 	I
The' "Procedural" 	Exceptions
The District 	argues 	that 	the 	charge 	should, 	have been
dismissed because 	it 	failed 	to 	allege 	a prima 	facie 	case 	of
reprisal. 	The District bases 	this 	argument upon 	its 	contentions
that: 	(1) 	the 	allegation in the 	complaint 	that Baddour
"participated" 	in a 	class 	action unfair practice 	charge 	in 	1981
is conclusionary; 	(2) 	the charge, 	complaint, 	and amended
complaint 	are 	devoid of 	any 	facts 	demonstrating 	the 	District 	had
knowledge 	of 	Baddour's 	alleged participation 	in 	the 	1981 	class
action' charge ; 	and 	(3) 	the charge, 	complaint, 	and amended
complaint "failed: to establish how Baddour's 	1981 	activities were,5
a 	motivating 	factor 	in 	the 	District's 	adverse 	action of 	1983
(i.e.,"Baddour's dismissal) .
The 	District 	made 	the 	same 	arguments 	in a motion orally 	at
the 	hearing. 	The ALJ 	then 	correctly 	concluded 	that 	the
allegation 	that 	Baddour 	"actively participated" 	in 	the 	unfair
practice 	charge 	was 	sufficient, 	together 	with 	the 	allegation 	that
the 	dismissal 	proceeding 	constituted 	retaliation 	for 	that
participation, 	to constitute 	a prima 	facie 	case 	of violation of
EERA.
Next, 	the 	District 	argues 	that 	Baddour did not 	establish a
prima 	facie 	case, 	that 	she was 	dismissed 	for having 	filed a
grievance on July 	26, 	1983. 	The District 	contends 	that 	although
the 	formal 	Notice 	of 	Intention to Dismiss 	was 	not 	received by
Baddour until August 	4,1983, 	the process 	of dismissal 	began
;
60

months earlier. 	In fact, 	as early as May 27, 	1983, 	Stephens
Recommended 	that 	Baddour be 	dismissed 	for 	insubordination. 	On
June 	17, 	1983, 	Baddour and her attorney met with Rhetta, 	the
director of 	classified personnel, 	to 	respond to 	the 	termination
recommendation 	at 	a 	Skelly hearing. 	Baddour 	filed her written
response 	to 	that 	recommendation on June 	24, 	1983 	and 	filed her
grievance on July 26, 	1983.
In Charter Oak Unified 	School 	District 	(1984) 	PERB 	Decision
No. 	404 	(Charter Oak) . 	PERB held that the mere 	fact that a
superintendent's 	notice 	of 	intention 	to 	dismiss 	was 	issued 	after,
rather 	than before, 	the 	employee 	filed her grievance 	is
insufficient 	to 	show 	the 	filing of 	the 	grievance 	motivated 	the
reprisal. 	The 	evidence 	in Charter Oak 	showed 	the 	District 	had
expressed 	dissatisfaction with 	the 	employee's 	performance 	before
the grievance was 	filed. 	Similarly, 	in the 	instant case, 	the
facts 	demonstrate 	that 	the 	dismissal 	recommendation was 	made 	long
before Baddour 	filed her grievance. 	Therefore, 	the 	District's
argument 	that Baddour did not 	establish a prima 	facie 	case, 	that
she was 	dismissed 	for having 	filed a 	grievance 	on July 	26, 	1983,
has merit.
The 	District's 	argument 	that 	the 	PERB 	staff 	attorney had 	no
authority 	to 	issue 	an amended 	complaint 	sua 	sponte 	was 	also 	made
orally before 	and 	rejected by 	the ALJ. 	The 	original 	charge 	had
alleged 	that 	the 	District 	retaliated 	against 	Baddour 	"for
participating in a class action unfair practice charge. 	. 	. 	."
(Emphasis added.)' 	The original complaint, 	alleged that Baddour's
61

protected 	activity 	consisted 	of 	"filing 	a 	class 	action unfair
labor practice 	charge 	against 	the 	District 	with 	PERB 	in
1982. 	. 	. 	." 	(Emphasis added.) 	After the District pointed out,
in its August 	17, 	1984 motion to dismiss 	the complaint, 	that the
case 	record 	established 	that 	Baddour 	did 	not 	actually 	file 	said
unfair practice 	charge, 	the 	PERB 	regional 	attorney, 	on her own
motion, 	issued an amended 	complaint which alleged that 	Baddour
"actively participated 	in 	a 	class 	action unfair practice 	[charge]
against 	the District 	in 	1981."
It is 	clear 	that 	Board 	agents 	have 	the 	authority 	to 	amend 	a
complaint 	to 	correct 	an error. 	The 	Legislature 	granted 	the 	Board
broad powers 	with 	regard 	to 	the 	processing 	of 	unfair 	practice
charges. 	(See EERA section 3541.3.) 	Under this 	authority, 	the ..
Board has 	promulgated 	regulations 	regarding 	the 	issuance 	of 	a
complaint. 	PERB Regulation section 32640(a) 	provides:
(a) 	The Board agent 	shall 	issue 	a complaint
if 	the 	charge 	or the 	evidence 	is 	sufficient
to establish a prima 	facie 	case. 	The
complaint 	shall 	contain a 	statement 	of 	the
specific 	facts 	of 	the 	respondent, 	and 	shall
state 	with particularity 	the 	conduct 	which 	is
alleged 	to 	constitute 	an unfair practice.
The complaint 	shall 	include, 	when known, 	when
and where 	the 	conduct 	alleged 	to 	constitute
an unfair practice 	occurred or 	is 	occurring,
and the name(s) 	of the person(s) 	who
allegedly 	committed 	the 	acts 	in question.
The 	Board 	may 	disregard 	any 	error 	or 	defect
in the 	complaint 	that 	does 	not 	substantially
affect 	the 	rights 	of 	the parties.
Even 	if 	the 	PERB 	regional 	attorney had not 	corrected 	her
error by 	issuing 	an 	amended 	complaint, 	PERB 	regulations 	expressly
allow the 	Board 	to 	"disregard 	any 	error 	or 	defect 	in 	the
.1
•
62

complaint 	that does 	not " substantially affect 	the 	rights 	of 	the
parties." 	Here, 	the 	amended complaint merely reflects 	the
allegations 	in the 	original 	unfair practice 	charge. 	Such 	an
amendment 	does 	not 	substantially 	affect 	the 	rights 	of 	the
parties.
The 	Board 	also promulgated 	regulations 	for 	the 	amendment 	of
a 	complaint 	before 	and during 	a 	hearing. 	(See 	PERB 	Regulations
32647 	and 	32648.) 	In determining whether 	an amendment 	is
appropriate, 	the 	Board agent 	considers 	the possibility of
prejudice 	to 	the 	respondent. 	As 	the 	amended 	complaint 	reflects
the 	allegations 	in the 	original 	unfair practice 	charge, 	the 	Board
finds 	there 	is 	no prejudice 	to 	the District.
The District 	next 	argues 	that 	the 	charge was 	not 	timely
filed with 	respect 	to 	the 	alleged unfair practice 	of 	June 	1983.
The 	amended 	complaint 	alleges 	that 	Baddour was 	denied 	summer 	work
on June 	16, 	1983. 	The unfair practice 	charge was 	filed on or
about May 16, 	1984.
Government 	Code 	section 	3541.5 	provides 	for 	the 	tolling 	of
the 	six month 	statute 	of 	limitations 	" . . . 	during 	the 	time 	it
took 	the 	charging party 	to 	exhaust 	the 	grievance 	machinery" 	in a
contract 	that provides 	for binding 	arbitration. 	Since 	the
agreement 	in the present 	case 	does 	not provide 	for binding
arbitration, 	statutory tolling does 	not 	apply. 	(Sa	___	n Dieguito	D=i~egui to
Onion High School District 	(1982) 	PERB Decision No. 	194, 	pp. 	11-
12; 	Poway Unified School 	District 	(1983) 	PERB Decision No. 	350.)
. .
63

Neither does 	the doctrine 	of 	equitable 	tolling 	apply, 	as
the doctrine 	did not 	survive California State University
(San Diego) 	(1989) 	PERB Decision No. 	718-H 	(CSU 	(San Diego) ) . 	In
that 	case, 	the 	Board held 	that 	the 	six month 	time period 	for
filing a charge, 	in all 	three of 	the 	statutes which PERB
interprets, 	is 	not 	technically a 	statute of 	limitations 	in t h a t ,
it 	is 	not 	an affirmative defense. 	Further, 	the Board held that
the 	six month deadline 	for 	filing 	a 	charge 	could not 	be 	waived by
either party 	or by 	the 	Board.
Following the reasoning in CSU 	(San Diego) . 	the Board held
in University 	Council 	American 	Federation of 	Teachers 	(1990)
PERB; Decision, Nov. 826, that because the doctrine of equitable
tolling allowed the 	Board, 	in 	its 	discretion and 	in accordance 	.
with the* principles 	of 	equity, 	to waive 	the 	six month 	statutory
period, 	equitable 	tolling would no 	longer apply. 	Thus, 	the
District's 	argument 	that 	the 	charge 	was 	not 	timely 	filed with
respect 	to 	the 	alleged unfair practice 	of 	June 	1983 	has 	merit.
The*District's 	contention 	that 	the ALJ 	has 	no 	authority 	to
order 	compliance 	with Education Code 	Section 	44031 	has 	merit.
(Tustin Unified School 	District 	(1987) 	PERB Decision No. 	626.)
The ALJ's 	order 	requiring 	the 	District 	to 	delete 	allegedly
tainted documents 	from Baddour's 	personnel 	file 	is 	therefore
unenforceable.
The 	Substantive 	Exceptions
In analyzing the District's 	challenge to the ALJ's. Novato
analysis, 	the 	first 	issue 	is whether Baddour engaged 	in protected
. .
.•
. .
64

activity. 	The ALJ 	found 	that 	Baddour 	engaged 	in protected
activity when 	she 	(1) 	requested, representation 	at 	evaluation
meetings 	in October 1982, 	January 1983, 	and May 1983; 	(2) 	filed a
grievance 	in 	the 	summer of 	1983 	over 	the 	District's 	failure 	to
offer her 	summer employment; 	(3) 	participated 	in the 	1982 	"summer
school 	employment" 	unfair practice charge; 	and 	(4) 	was 	involved
in 	installing 	a 	time 	clock at 	Base 	Two.
It 	is 	well-established that 	the 	filing of 	grievances 	and
unfair practice 	charges 	are protected activities. 	(North
Sacramento School 	District 	(1982) 	PERB Decision No. 	264.)
The 	District 	argues 	that 	neither 	the 	findings 	nor 	the
evidence 	support; the ALJ's conclusion that Baddour engaged in
protected 	activities 	relative 	to 	the 	installation of 	a 	time 	clock
on Base 	Two. 	A review of 	the 	record 	supports 	the 	District's
contentions 	that: 	(1) 	there 	is no evidence as 	to what Baddour's
activities were with respect 	to 	the 	eventual 	placement 	of 	a 	time
clock at Base Two; 	and 	(2) 	the ALJ made no 	findings 	as 	to the
nature 	of 	the purported 	time 	clock 	activity. 	The 	District's
argument 	that 	neither 	the 	evidence 	nor 	the 	findings 	support 	the
ALJ's 	conclusion 	that 	the 	time 	clock 	activities 	were 	protected
has merit.
The 	District 	next 	argues 	that 	Baddour's 	request 	for
representation 	at 	evaluation meetings 	was 	not 	protected 	activity
since 	Baddour was 	not 	entitled 	to 	representation 	at 	performance
evaluations. 	The ALJ's 	conclusion that 	Baddour's 	demands 	for
representation at 	performance 	evaluation 	sessions 	of 	October
4 . .
-... . "
65

1982, 	January 	1983, 	and May 	1983 were protected activities, 	was
based 	upon his 	interpretation of 	PERB's 	holding 	in Redwoods
Community College District, 	supra. 	PERB Decision No. 	2 93, 	affd.
in part 	in Redwoods 	Community College 	District 	v. 	Public
Employment Relations Board 	(1984) 	159 	Cal.App.3d 617 	(Redwoods).
With 	respect 	to 	the performance 	evaluation meetings, 	the 	Board
finds 	Baddour's 	belief 	that 	the 	meetings 	may have 	resulted 	in
discipline a 	reasonable one. 	Therefore, 	her request 	for
representation 	constituted protected 	activity. 	(See 	California
State University. 	Long Beach 	(1987) 	PERB Decision No. 	641-H and
California State University. 	Sacramento 	(1982) 	PERB Decision No.
211-H.)
In any event, 	the District 	argues 	that under Redwoods,
Baddour was 	clearly not 	entitled 	to 	representation 	at 	either 	her
October 	1982 	evaluation or her January 	1983 	evaluation. 	The
District 	claims 	that 	the 	October 	1982 	evaluation was 	to have 	been
a 	"routine" 	evaluation, 	not 	justifying 	representation under
Redwoods. 	In 	fact. 	Baddour was 	originally told the 	October 	1982
evaluation was 	a 	"scheduled" 	performance 	evaluation. 	Although
the 	evaluation never 	took place, 	because 	it was 	later determined
that 	it was 	not 	time 	for Baddour's 	"scheduled" 	evaluation,
several 	memos 	were 	exchanged 	indicating 	that 	District 	management
employees were unsure 	as 	to 	the 	exact 	nature 	of 	the 	evaluation
(i.e., 	whether it was scheduled or unscheduled) . 	The apparent
confusion, and mixed messages 	from the District, 	in this 	regard
created 	"highly unusual 	circumstances," 	especially when one
66
-·-·-------------

considers 	Baddour's 	prior 	employment 	history. 	As 	the 	evidence
demonstrates 	that 	Baddour was 	entitled 	to 	a 	representative 	at 	the
October 	1982 	meeting, 	her request 	for representation constituted
protected 	activity.
Regarding 	the 	January 	1983 	evaluation meeting, 	Baddour was
notified by 	letter dated January 	10 	1983 	that 	the 	meeting was-
"to 	counsel 	and assist 	you 	in 	correcting 	areas 	of 	performance
which may 	require 	improvement." 	The 	District 	argues 	that 	based
on 	said 	letter, 	Baddour did not 	have 	reason to believe 	that 	the
evaluation would 	result 	in discipline 	and was 	therefore 	not
entitled 	to 	representation at 	that 	meeting. 	The 	District 	also
relies"onVat provision 	in 	the 	CBA which provides 	that 	an employee,
has 	the 	right 	to a 	representative of 	his 	or her own choice 	at 	a
conference 	at which 	employee 	discipline 	is 	intended 	to 	be
administered 	"when 	in 	the 	judgment 	of 	the 	District 	the 	primary
purpose 	of 	the 	initial 	conference 	is 	to 	impose, 	or recommend the
imposition of, 	discipline against the employee 	"
In 	fact, 	the 	January 	1983 	evaluation was 	an 	"unscheduled"
evaluation and the District did, 	in fact, 	admit 	that 	the
evaluation was 	prefatory to 	the 	termination of 	Baddour. 	There
was 	testimony 	that 	the 	District 	intended 	to 	terminate 	Baddour 	at
the 	time 	it 	scheduled the 	evaluation. 	Thus, 	Baddour was 	entitled
to 	representation at 	the 	January 	1983 	evaluation and, 	therefore,
her 	request 	for 	representation 	constituted 	protected 	activity.
The 	District 	also 	argues 	that 	the 	record does 	not 	contain
any 	evidence 	to 	support 	the ALJ's 	finding 	that 	Baddour 	requested
. . . . 's
,
•
67
t

representation at 	the May 	1983 	evaluation. 	Th. . . e 	District's 	point
in this regard 	is well 	taken.
Nevertheless, 	the 	record as 	a whole 	supports 	a 	finding 	that
Baddour 	engaged 	in ongoing protected 	activity. 	In 	February 	1981,
Baddour 	filed a 	grievance 	over 	a 	reduction 	in hours. 	In March
1981, 	a Union representative 	accompanied Baddour to 	a meeting
with Rhetta 	to discuss 	Baddour's 	problems with Duggan. 	In July
1982, 	a 	Union representative 	attended the 	meeting Baddour had
with management 	to discuss 	the 	Peguero 	incident. 	In October 	and
December of 	1982 	and January 	1983, 	Baddour 	requested union
representation 	in 	connection with 	the 	scheduling 	of 	performance
evaluations 	sessions.
Next, 	the District 	argues 	that 	the 	evidence does 	not 	support
the ALJ's 	conclusion that 	the 	"knowledge" 	prong of 	the 	Novato
test was 	satisfied. 	The District 	argues 	that* the 	record does 	not
support 	the ALJ's 	finding 	that 	the 	District 	had knowledge 	of
Baddour's 	1981 	meeting with 	SEIU about 	summer hiring practices,
which meeting 	she 	contends 	constituted protected 	conduct. 	The
record 	supports 	the 	District's 	contention 	in 	this 	regard.
Baddour 	testified 	that 	she 	did 	not 	tell 	the 	transportation
department 	staff 	that 	she 	had 	complained 	to 	the 	Union 	about
summer hiring practices. 	Baddour alleges 	the 	District 	knew of
her visit, 	yet 	stated 	"I'm not 	sure how" 	the District became
aware.
The ALJ's 	conclusion, 	that 	since 	it was 	"common knowledge
amongst 	drivers 	that 	Baddour was 	somehow 	involved 	in 	the 	1981
" .
.,
68

unfair practice 	charge, 	then the 	District would have 	also 	known
that the activity 	was 	based 	upon 	uncorroborated 	hearsay. 	Even
assuming 	other 	drivers 	knew 	Baddour 	had 	had 	a 	meeting with 	her
Union representatives 	in 	1981, 	the ALJ made no 	findings 	as 	to how
that 	information was 	conveyed 	to 	District 	managers.
Lamar, 	who 	recommended Baddour be 	dismissed, 	testified he
had no 	knowledge 	of 	Baddour's 	1981 	meeting with her 	union
representative. 	Additionally, 	the 	record 	is devoid of 	any proof
whatsoever 	that 	any 	of 	the 	six people 	who 	reviewed 	Lamar's
recommendation before 	it 	was 	finally 	approved 	had 	any 	knowledge
of 	Baddour's 	participation 	in the 	1981 	unfair practice 	charge.
Baddour never raised the 	issue of her union activity with .-,*&.
Rhetta when he 	first 	met with her 	to 	give 	her 	a 	chance 	to 	respond
to the dismissal 	recommendation and, 	in fact, 	never complained
she was 	being 	fired because 	of 	her union 	activity until 	May 	16,
1984, 	when she 	filed her unfair practice charge. 	Thus, 	the
evidence 	does 	not 	support 	a 	finding 	that 	the 	District 	had
knowledge 	of 	Baddour's 	1981 	meeting with her Union
representative.
The 	District 	further 	contends 	that 	it 	did not 	have 	knowledge
of 	Baddour's 	purported 	time 	clock 	"activities." 	As 	noted 	above,
the 	District's 	contention 	in this 	regard has 	merit 	in 	light 	of
the 	fact 	that 	nothing 	in the 	evidence 	establishes 	the 	nature 	of
these 	"activities." 	The ALJ did not 	make 	any 	findings 	as 	to what
role Baddour played, if any, 	in the 	installation of 	the 	time
clock.- 	Neither was 	there 	any 	evidence 	that 	District 	management
69

- -
was 	ever made 	aware 	of 	Baddour's 	possible 	involvement 	in 	the 	time
clock issue. 	The District's; argumen	. . " 	t 	that 	the District did not
know of 	Baddour's 	purported 	time 	clock 	"activities" 	therefore 	has
merit.
Notwithstanding 	the 	validity of 	the 	District's 	arguments 	as
to 	the 	lack of 	evidence 	of 	the 	District's 	knowledge 	of 	Baddour's
participation 	in the 	1982 	unfair practice 	charge, 	and her
involvement 	in the 	time 	clock 	installation, 	the District's
knowledge 	of 	Baddour's 	reliance 	on 	the 	Union 	for 	representation
purposes 	cannot 	be 	disputed.
The 	District 	next 	argues 	that 	the ALJ 	erred 	in 	concluding
that 	Baddour's 	termination was motivated by her participation in,j,~
protected activities. 	In Novato. 	the Board enumerated factors 	....
which may 	support 	an 	inference 	of 	unlawful 	motive. 	The 	Board
stated:
The 	timing of 	the 	employer's 	conduct 	in
relation 	to 	the 	employee's 	performance 	of
protected activity, 	the 	employer's 	disparate
treatment 	of 	employees 	engaged 	in 	such
activity, 	its 	departure 	from established
procedures 	and 	standards 	when dealing with
such employees, 	and the 	employer's
inconsistent 	or 	contradictory 	justifications
for 	its 	actions 	are 	facts which may 	support
the 	inference 	of 	unlawful 	motive,
(Id, at p. 	7.)
The 	District 	argues 	that 	application of 	these 	Novato 	factors 	to
the 	present 	case 	requires 	a 	conclusion 	that 	Baddour's 	dismissal
was 	not 	unlawfully 	motivated.
The 	District 	contends 	that 	the 	timing 	of 	the 	termination did
not 	raise 	an 	inference 	that 	th	. . 	e 	motivation 	for 	the 	termination
. ."
70

was 	Baddour's 	participation 	in protected 	activities. 	Baddour
filed her first grievance in February, 	1981. 	Notably, 	the
termination proceedings 	against 	Baddour 	commenced 	in May, 	1983,
two months before 	she 	filed her July 26, 	1983 	grievance. 	Most
meetings 	at which 	Baddour had 	representation occurred 	in 	1981 	and
1982. 	Baddour's latest request took place in January of 	1983.
Baddour 	finally agreed 	to meet with Dion 	that 	same 	month without
representation 	after 	the 	District 	agreed 	Baddour 	could 	tape 	the
meeting 	and have 	the 	door of 	the 	meeting 	room remain open. 	The
recommendation 	for 	termination 	came 	four 	months 	after 	the 	January
request for representation. 	Since 	the 	timing of 	the 	termination
is 	not linked to any of Baddour's protected activities, 	the
District's 	contention 	that 	the 	timing 	of 	the 	protected 	activities
does 	not 	support 	a 	finding 	of 	unlawful 	motivation has 	merit.
The 	District 	further 	argues 	that 	the ALJ made 	no 	significant
findings 	of disparate 	treatment. 	To 	support 	this 	argument, 	the
District 	notes 	that 	Baddour was 	the 	only 	employee who: 	made
obscene gestures ; was 	rude; 	used obscene 	language 	towards 	and
about 	other 	employees; 	yelled out 	and 	called her 	supervisors
"bimbos"; 	slammed the door to her 	supervisor's 	office 	off 	the
hinges; 	contentiously 	refused 	to perform 	assignments 	given 	to 	her
by her 	supervisor; 	drove 	onto 	the parking 	lot 	in violation of
District policy anytime 	she pleased, 	despite 	numerous 	warnings
that 	she was 	not 	to do 	so; 	referred to her 	supervisor's wife 	as 	a
dog; 	on two occasions, 	grabbed documents 	from her 	supervisor
without 	permission 	and 	ran off 	with 	them; 	refused 	to 	respond 	to
..,
•,
,<
71

notes 	imploring 	that 	she 	see her 	supervisor; 	refused to 	accept
any of the 	District's 	supervisors 	as 	her 	supervisor; 	was 	the
subject 	of 	complaints 	by 	a 	school 	principal 	who 	had 	received
complaints 	from many people 	about 	her; 	would 	suddenly 	explode
into terrific 	anger; 	cursed at 	a 	school 	nurse; 	and would 	lose 	her
temper 	and 	lose 	control 	of 	herself 	so 	it 	would become 	impossible
to talk to her.
Contrary to the District's 	contentions, 	the 	evidence
suggests 	that other employees 	(e.g., 	Westover) 	used obscene
language 	or 	finger gestures 	from time 	to 	time. 	The 	record as 	a
whole, however,suggests, that 	Baddour's 	conduct 	in this 	regard
was ~partvof 	a pattern of 	abusive, 	discourteous 	conduct 	directed.
at 	fellow employees 	and 	supervisors.
i 	While 	testimony 	supports 	Baddour's 	contention 	that 	Baddour
received 	far more 	"see me" 	notes 	than other employees, 	the 	record
also 	reflects 	that 	the 	notes 	were 	in response 	to 	Baddour's
repeated 	refusals 	to 	take 	instruction 	from her 	supervisors.
There is no 	evidence 	that 	the 	behavior of 	other 	employees
necessitated that 	they receive 	"see me" 	notes.
Admittedly, 	the 	record 	contains 	evidence 	that 	the 	District
was 	keeping a close watch on Baddour. 	For example, 	the District
failed 	to 	explain why 	a 	tachograph was 	placed 	on 	Baddour's 	bus
for an extended period of 	time. 	This 	incident, 	however, 	is
insufficient 	to 	raise 	an 	inference 	that 	Baddour's 	termination was
motivated 	by her 	participation 	in protected 	activities.
Notwithstanding 	the 	fact 	that 	Baddour 	may have 	received 	some
- 1
y ,
- . ...
72
'v

reflects that the unfavorable 	treatment 	was 	clearly 	precipitated
by 	Baddour's 	unprotected 	misconduct.
Next, 	the District 	argues 	that 	the 	evidence does 	not
demonstrate 	that 	the 	District 	departed 	from 	established
procedures 	in dealing with Baddour. 	There was 	no 	established,
regularly utilized 	system 	of 	progressive 	discipline.
Nevertheless, 	the 	record 	clearly 	indicates 	that 	Baddour was
apprised of 	her duties, 	was 	repeatedly 	counseled 	regarding poor
performance, 	received a 	letter of 	reprimand 	for 	refusing 	to meet
with her 	supervisor, 	and was 	given ample 	opportunity 	to 	correct
her behavior.
Furthermore, 	the District 	argues, 	Baddour did not 	establish
that 	the 	District 	offered 	inconsistent 	or 	contradictory
justifications 	for 	its 	actions. 	Baddour's 	very 	first performance
evaluation 	in December 	1980 	indicated 	that 	she 	needed 	improvement
in her contacts with the 	staff, 	the public, 	and the 	students.
The 	performance 	evaluation 	Baddour 	finally 	received 	in 	January
1983 	rated her 	as 	unsatisfactory 	in her working 	relationships,
communication skills, 	and ability to adapt. 	In goals 	and
objectives, 	Baddour was 	to 	"respond 	in a 	timely 	fashion to
supervisor's 	request" 	and 	"observe 	[the] 	reporting 	structure
created by department 	reorganization." 	Additionally, 	on
January 25, 	1983, 	she was 	given a 	letter of 	reprimand by the
director 	of 	classified personnel 	for 	failure 	to 	follow his
directives.-; 	The Dismissal Accusation 	included the 	same problems
L. . . .
73

referenced by 	the 	District 	in 	earlier performance 	evaluations,
counseling 	sessions> and . the 	letter of 	reprimand.
The 	District 	also 	argues 	the ALJ 	took 	it 	upon himself 	to
retry 	the 	dismissal 	accusation 	against 	Baddour. 	Although 	the
District 	correctly 	analyzes 	the 	factors 	that 	the ALJ 	should 	have
taken 	into 	consideration 	in 	determining 	whether 	the 	District's
motivation 	for the 	termination was 	unlawful, 	the 	District's
assertion 	that 	the ALJ was 	bound 	to 	accept 	the 	hearing 	officer's
findings 	as 	to particular 	incidents 	as 	conclusive 	is 	rejected.
As 	the 	Board 	finds 	that 	the 	doctrine 	of 	collateral 	estoppel 	does
not 	apply to 	the merit 	system hearing, 	the ALJ was 	not bound 	to
accept the 	hearing 	officer's 	findings 	and 	conclusions.
Nevertheless, 	the 	Board 	concludes 	that 	the ALJ did 	err 	in
finding 	sufficient 	proof 	of 	unlawful 	motivation. 	Even assuming
the ALJ 	is 	correct 	in his 	determination that 	the 	department's
failure 	to 	employ 	good personnel 	practices 	suggests 	a 	motive
aimed more 	toward 	getting 	rid 	of 	Baddour 	rather 	than 	solving 	the
problem, 	the 	evidence 	simply does 	not 	support 	a 	finding 	that 	the
District's 	reasons 	for 	getting 	rid 	of 	Baddour were 	connected 	to
her participation 	in activities 	protected under 	EERA. 	While 	the
fact 	that 	Baddour 	filed 	an 	EEOC 	charge 	and was 	reinstated 	once
that 	charge 	was 	settled may 	have 	affected 	the 	District's
treatment 	of 	Baddour 	thereafter, 	the 	filing of 	an EEOC 	charge 	is
not protected activity. 	(See 	Regents 	of 	the 	University of
California 	(Yeary) 	(1987) 	PERB Decision No. 	615-H, 	wherein the
Board held 	that 	filing 	a 	California 	Department 	of 	Fair 	Employment
f	. as ':. .'
74

and Housing 	claim 	is 	not 	protected 	activity.) 	The 	record does
does not support the ALJ's finding of a nexus between Baddour's
participation 	in protected 	activity 	and 	her 	termination.
Although 	Baddour's 	filing 	of 	grievances 	and 	involvement 	of 	SEIU
in her 	ongoing battles 	may 	not 	have 	endeared her 	to 	the 	District
and may, 	in fact, 	have 	added to the District's perception of
Baddour as 	a 	troublemaker, 	and while 	the 	District's 	personnel
practices 	may not 	have been exemplary, 	the 	evidence 	is
insufficient 	to 	raise 	an 	inference 	that 	it was 	Baddour's 	union
activities 	that 	motivated 	the 	District 	to 	take 	the 	actions 	it
took.
Yet 	the 	result 	in this 	case would be 	no different 	even 	if
this•Board were 	to 	conclude 	that 	a 	tenuous 	nexus 	existed between .
Baddour's protected activity and her 	termination, 	i.e., 	that 	the
evidence 	raised 	an 	inference 	of 	unlawful 	motivation. 	We 	are
convinced 	that 	the 	District 	would have 	dismissed 	Baddour 	even 	if
she 	had 	had 	no 	involvement 	in protected 	activity.
'Preliminarily, 	we 	reject 	the 	District's 	assertion that 	the
ALJ 	unlawfully 	retried 	the 	sufficiency 	of 	the 	cause 	for 	dismissal
and 	that 	he 	should have 	been bound by 	the 	findings 	of 	the 	merit
system hearing officer. 	As 	noted above, 	the ALJ was 	not
collaterally 	estopped by 	the 	dismissal 	proceedings 	from
determining 	the 	legal 	issue 	of 	whether 	Baddour was 	terminated
because 	of 	her protected 	activity. 	Neither was 	the ALJ bound 	to
adopt 	the 	factual 	findings 	of 	the 	merit 	system hearing 	officer
regarding 	specific 	incidents. 	The 	hearing 	officer's 	decision 	in
75
.

the 	dismissal 	proceeding 	is 	too 	ambiguous 	to 	give 	a 	clear picture
of exactly what incidents 	were 	litigated. 	The 	ambiguities 	cannot
be*resolved by 	looking 	to 	the 	transcripts, 	as 	the 	transcripts 	are
incomplete.
Although 	the 	merit 	system hearing 	officer 	may 	have
determined whether 	there was 	sufficient 	cause 	to provide 	the
District with 	the 	option of 	terminating Baddour, 	we 	are 	not
convinced 	that 	the 	merit 	hearing 	officer 	addressed 	the 	issue
before 	this 	Board; 	i.e. 	whether 	the 	District would have 	exercised
that 	option but 	for 	Baddour's 	protected 	activity.
The 	record 	clearly demonstrates 	that 	Baddour would 	have 	been
dismissed 	regardless 	of 	whether 	she 	had 	engaged 	in protected
activity. 	Notwithstanding his 	conclusion 	that 	the 	District 	was
not 	justified 	in 	terminating 	Baddour, 	the ALJ 	concluded 	that
Baddour was 	guilty of 	the 	following misconduct:
1. 	Baddour was 	the most persistent of 	the violators 	of 	the
prohibition 	against 	unauthorized 	entry 	and 	parking 	in 	the
transportation, yard.
2. 	Baddour's 	violations 	of 	the prohibition against 	driving
into 	the 	transportation yard 	on 	five 	separate 	occasions 	"support
some level of discipline of Ms. 	Baddour."
3. 	" [B]addour has 	the capacity to provoke, 	as well 	as 	to
become 	a 	screamer and verbally hostile." 	(Baddour 	I, 	p. 	93.)
4. 	Baddour made 	derogatory comments 	about 	her 	supervisor,
Dion, in the presence 	of 	District 	employees.
76

5. 	On April 	18, 	1983, 	Baddour shouted and cursed at her
supervisor Tsunoda, 	took 	papers 	from 	him without 	permission, 	and
slammed 	and damaged the 	office 	door. 	This 	was 	the 	occasion
during which 	she 	called her 	supervisors 	"bimbos."
6. 	On April 	18, 	1983, 	Baddour took a counseling session
report 	from her 	supervisor, 	without permission and refused 	to 	sign
it. 	"This 	is 	sufficiently 	improper behavior 	so as 	to 	constitute
insubordination and 	. 	. 	. 	was 	reasonably relied upon 	. . . 	to
support 	some 	level 	of discipline of Ms. 	Baddour." 	(Baddour 	I,
p. 	98.)
7 .'Baddour 	refused 	to 	complete 	and 	deliver 	the 	bus 	route
audit. ' sheets 	to her 	supervisor. 	The ALJ 	found 	this 	refusal 	to be«
"a bonafide 	[sic] 	example of 	insubordination" 	and was 	reasonably
relied upon 	to 	support 	disciplinary 	action. 	(Baddour 	I,
pp. 	98-99.)
8. 	Baddour's 	failure 	to notify her 	supervisor when not 	able
to 	report 	to work on time 	on one 	occasion was 	a 	"bonafide 	[sic]
example 	of 	insubordination" 	and was 	reasonably 	relied upon 	to
support disciplinary action. 	(Baddour I, 	p. 	99.)
9. 	On September 	10, 	1982, 	Baddour refused to accept Dion as
her 	supervisor 	following 	a 	reorganization 	of 	the 	Transportation
Department. 	On October 	12, 	1982, 	Baddour refused to meet with
her 	supervisor, 	Dion, 	in regards 	to her unauthorized use of 	the
copying machine. 	"On September 	10, 	1982 	and again 	in October
1982, 	. Baddour violated one of 	the most basic duties 	an employee	••
77

h a s 	the 	duty 	to obey all 	lawful 	instructions 	of 	his/her
supervisor* 	(Baddour I , 	pp . 	1 0 3 - 1 0 4 ) .
The ALJ's 	findings 	of 	insubordination 	by 	Baddour 	indicate
that 	the 	District 	would 	have 	dismissed 	Baddour 	even 	if 	she 	had
not 	engaged 	in protected 	activity. 	The 	courts 	and 	the 	National
Labor 	Relations 	Board 	(NLRB) 	have 	long 	recognized 	an 	employer's
right 	to discharge 	employees 	for 	insubordination, 	notwithstanding;
the 	existence 	of 	a prima 	facie 	reprisal 	case. 	The 	California
Supreme 	Court 	has 	found 	cause 	for 	the 	dismissal 	of 	an
insubordinate 	employee, 	notwithstanding 	that 	employee's
participation 	in protected activities. 	(Martori 	Brothers
Distributors 	v. 	Agricultural 	Labor 	Relations 	Board 	(1981)29
Cal.3d 721, 	730-731 	[175 Cal.Rptr. 	626].) 	The Ninth Circuit
Court 	of Appeals 	has 	ruled 	that 	an 	employee 	who 	requested
representation 	at 	a 	meeting between him and 	his 	supervisor 	to
discuss 	the 	employee's 	tardiness, 	was 	not permitted
representation, 	and who called his 	supervisor a 	"sucker" 	and
walked 	out 	of 	the meeting, 	was 	lawfully 	suspended. 	(NLRB v. 	U.S.
Postal Service. 	(1982) 	9th Cir. 	689 F.2d 835, 	839 	[111 LRRM
2621] .) 	Similarly, 	in Spartan Stores. 	Inc. 	v. 	NLRB. 	(6th Cir.
1980) , 	628 F.2d 953, 	957-58 	[105 LRRM 2293] , 	the court held that
an 	employee 	did 	not 	have 	an objectively 	reasonable 	fear 	of
discipline 	when 	advised 	at 	the 	beginning 	of 	a 	meeting with his
supervisor 	that 	discipline 	would 	not 	be 	imposed, 	and was 	properly
discharged 	for 	disregarding 	his 	supervisor's 	orders 	by walking
out 	of 	a meeting with 	them.
f. .. .' ,
. .
.. .
78

In \NJi£B v. 	Coca-Cola Bottling Company. 	(6th Cir. 	1980) 	616
F. 2d 949; 	950-951, 	[104 	LRRM 2819], 	the court found that an
employee 	was 	lawfully discharged 	for 	being 	insubordinate 	to 	her
supervisors, 	despite 	the 	employee's 	support of 	the union. 	The
court 	in 	another 	case upheld 	the 	discharge 	of 	an 	active 	union
supporter 	for 	insubordination to 	supervisors, 	being 	fresh with
female 	employees, 	and 	for 	repeated absences 	from work. 	(District
65 Distributive Workers v. 	NLRB. 	(D.C. 	Cir. 	1978) 	593 F.2d 1155,
1165-1166 	[99 	LRRM 	2640].)
In Court 	Square 	Press, 	Incorporated 	(1978) 	235 NLRB 	106
[98 LRRM 	1076] 	the 	NLRB 	upheld 	the 	discharge 	of 	an 	employee 	who
had been disrespectful 	and 	insubordinate 	to his 	supervisor 	on 	at;;>?
least 	two 	occasions, 	had been 	repeatedly warned 	against 	violating
company rules, 	and had 	low productivity. 	The 	Board 	therein,
adopting 	the 	decision of 	the 	administrative 	law 	judge, 	concluded:
Even 	though 	Respondent 	knew 	of 	Sweeney's
prior 	union 	activity 	and 	had 	been 	charged
with 	having 	committed 	prior 	discriminatory
acts, 	Sweeney's 	statements 	to supervisor
Gardiner to 	"flake off" 	and 	"Yeah, 	yeah,
goody, 	goody" 	in the presence of 	the other
employees, 	among his 	other harassing behavior
and poor production, 	forced Respondent, 	even
though 	Sweeney was 	a 	known past 	union
advocate, 	to take the disciplinary action, 	it
took 	in 	terminating 	Sweeney. 	Respondent 	had
tolerated 	Sweeney 	to 	the 	point 	where 	the
supervisor had 	threatened 	to 	quit 	if 	Sweeney
remained. 	The 	right 	of 	an employer 	to
maintain order 	and 	insist 	on 	a 	respectful
attitude 	by 	its 	employees 	toward 	their
supervisors 	is 	an important 	one.
"Verbal 	abuse 	directed at 	an employee's 	.
supervisor . 	. 	.would, 	if left
undisciplined, 	tend to diminish the 	respect
F..:2d
79
--------- -- -

of 	other 	employees 	for 	their 	employer 	and
encourage 	insubordinate 	conduct 	by 	them."
( I d . 	a t p . 	1 0 9 . )
Likewise, 	the NLRB has 	also 	found 	justified, 	the discharge
of 	an 	employee 	for 	referring 	to 	his 	supervisors 	by 	insulting
names 	and 	for his 	confrontational 	style 	of 	problem 	solving.
(Transportation Manpower Services 	of Ohio. 	Incorporated 	(1984)
270 	NLRB 	415 	[116 	LRRM 	121=6].)
The 	record 	herein 	solidly 	establishes 	that 	Baddour 	would 	not
have 	been retained, 	regardless 	of 	her protected activity.
Baddour 	engaged 	in numerous 	instances 	of 	insubordination,
rudeness to Supervisors, 	and other misconduct, 	warranting her
dismissal.
For example, 	Mustol, 	the nurse 	for the District 	for over
twenty-seven years 	and assigned 	to Revere 	School, 	was 	called as 	a
witness. 	Baddour came 	in contact with 	the 	staff 	at 	Revere
because 	she 	drove 	special 	education pupils 	to 	and 	from 	school.
Mustol 	testified that Baddour was very explosive, 	profane, 	would
burst 	into 	terrific 	anger/would 	scream and yell, 	and 	lose 	self-
control 	of 	herself. 	Mustol 	also 	testified 	that 	Baddour would be
impossible 	to 	talk 	to when 	she went 	out 	of 	control. 	Baddour had
cursed 	and yelled 	at 	Mustol 	several 	times.
Other 	staff 	at 	Revere 	also 	complained 	about 	Baddour.
Mustol's 	characterization of 	Baddour's 	behavior, 	together with
Baddour's outbursts of December, 	1980, 	April 	18, 	1983, 	and May 9,
1983, 	wherein 	she 	grabbed Dion's 	and Tsunoda's 	papers 	during
counseling 	sessions 	and 	then ran off with 	them; 	her 	referral 	to
•...
80

her 	supervisors 	as 	"bimbos ; " 	and her disrespectful 	remarks 	to
Lamar 	all 	demonstrate 	Baddour's 	lack of 	self-control 	and
explosiveness.
Other 	reasons 	for 	Baddour's 	termination 	included 	her 	refusal
to 	accept 	Dion as 	her 	supervisor. 	The 	evidence 	demonstrates
Baddour never made 	an effort 	to 	act 	in a 	professional 	manner
towards 	Dion. 	Baddour's 	conduct 	towards 	Dion related 	to 	a
December 	1980 	incident 	where 	Dion 	followed 	Baddour 	after 	she
grabbed 	counseling documents 	off 	his 	desk 	and 	ran out 	of 	Dion's
office. 	Although Dion got 	upset 	and 	followed Baddour, 	the
testimony indicates he did not curse, 	threaten, 	strike, 	or
attempt to 	strike or assault Baddour. 	Nevertheless, 	over two
years 	after 	the December 	1980 	incident, 	Baddour 	claimed 	to be 	in
fear of 	her 	life 	from Dion because 	of 	that 	incident.
In 	1982, 	the Transportation Department was 	reorganized
pursuant 	to 	a 	Price-Waterhouse 	study. 	Prior 	to 	the
reorganization, 	Baddour had worked 	for 	supervisors 	other 	than
iDion*for one year and ten months. 	Dion replaced Lamar, 	who was
at 	the 	time 	Baddour's 	supervisor. 	Dion and Ross 	were 	the 	only
two bus 	driver 	supervisors, 	and she did not 	like 	either one.
Although 	Lamar 	attempted 	to work with 	Baddour 	to 	assure 	her
that 	Dion would be 	kept 	in 	line, 	counseled Dion to 	assure 	he
would act 	in a professional 	manner, 	and assured Baddour 	she 	could
have 	a woman 	in the 	room when 	she 	met with Dion, 	Baddour
consistently refused to meet, with Dion. 	Even after Tsunoda 	took
Dion's 	place 	as 	Baddour's 	supervisor, 	Baddour 	continued to 	engage
. '. . . ..
. 4. .'
...
. .
81
"
.. ,. ,

in acts 	of 	insubordination. 	She 	refused to 	complete 	audit 	sheets
Briber being asked to do 	so, 	she 	continued to drive 	onto 	the
parking 	lot 	in violation of 	District policy, 	and 	she 	continued 	to
behave 	inappropriately 	in counseling 	sessions. 	Eventually,
Baddour refused to work 	for Tsunoda 	as well. 	In fact, 	Baddour
refused 	to work 	for 	any 	available 	supervisor.
" In the 	end, 	it was not Dion who recommended her dismissal.
Her dismissal 	was 	precipitated by her blatant 	defiance 	of
Tsunoda's 	directives. 	She was 	the 	only driver who 	time 	after
time 	drove 	onto 	the 	lot 	against 	District 	policy 	after being
warned numerous 	times 	against 	doing 	so. 	She was 	the 	only driver
who 	said 	she would drive 	onto 	the 	lot 	anytime 	she pleased. 	Even
McLaughlin, 	her witness, 	testified he 	stopped driving onto 	the
lot 	after Tsunoda warned him once. 	Baddour was 	the 	only driver
who 	refused 	to 	complete 	the 	audit 	sheets; 	called Lamar and
Tsunoda 	"bimbos"; 	ran off with Tsunoda's papers 	on two occasions;
slammed Lamar's 	door off 	its 	hinges; 	referred 	to Lamar's 	wife 	as
a 	dog 	and 	refused to 	accept 	every 	available 	supervisor. 	Based
on Baddour's 	repeated acts 	of 	insubordination, 	the 	Board 	finds
that 	the 	District 	would have 	terminated 	Baddour 	even 	if 	she 	had
not been involved 	in protected activities. 	Accordingly, 	the
Board 	finds 	the 	District 	did 	not 	violate 	EERA 	section 	3543.5(a)
in dismissing 	Baddour.
82

ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-1986 	is 	hereby
DISMISSED.
Member Camilli 	joined 	in 	this 	Decision.
Chairperson Hesse's 	concurrence begins 	on p. 	84.
83

C h a i r p e r s o n H e s s e , 	concurring: 	W i t h 	regard 	to 	the 	m e r i t s 	of
the u n d e r 	lying 	termination 	I 	agree 	with 	the 	majority's 	findings
and 	conclusions 	that: 	(1) 	the 	evidence 	does 	not 	support 	a
finding 	of 	nexus 	b e t w e e n 	Elizabeth 	Baddour's 	(Baddour)
p a r t i c i p a t i o n 	in 	protected 	activity 	and 	her 	termination; 	and 	(2)
e v e n 	if 	nexus 	were 	established,.. the 	San 	Diego 	Unified 	School
District 	(District) 	had 	a 	legitimate 	business 	justification 	for
Baddour's 	termination.
A l t h o u g h 	I 	also 	agree 	w i t h 	the 	majority's 	conclusion 	that
the 	d o c t r i n e 	of 	collateral 	estoppel 	does 	not 	apply 	to 	the
termination 	d e c i s i o n , 	I 	reach 	this 	conclusion based 	on 	a
different 	a n a l y s i s . 	Based on 	the 	different 	issues 	p r e s e n t e d , 	the
different 	b u r d e n s 	of 	p r o d u c t i o n , 	and 	the 	termination 	p r o c e e d i n g ' s
lack 	of 	judicial 	character, 	I 	conclude 	that 	the 	doctrine 	of
collateral 	estoppel 	should 	not 	apply 	to 	the 	termination 	d e c i s i o n .
Collateral 	Estoppel 	A n a l y s i s
In P e o p l e v. 	Sims 	(1982) 	32 	Cal. 3d 468 	[186 	C a l . Rptr. 	77]
(People 	v. 	Sims) 	the 	court 	found that 	collateral 	estoppel
applies 	if:
(1) 	the 	issue 	necessarily 	decided 	at 	the
previous 	[proceeding] 	is 	identical 	to 	the 	one
w h i c h 	is 	sought 	to 	be 	relitigated;
(2) 	the 	previous 	[proceeding] 	resulted 	in a
final 	judgment 	on 	the 	m e r i t s ; 	and
(3) 	the 	p a r t y 	against 	w h o m 	collateral
estoppel 	is 	asserted w a s 	a 	p a r t y 	or 	in
privity 	w i t h 	a 	party 	at 	the 	p r i o r
[proceeding]. 	[Fn. 	omitted.]
( I d . 	a t p . 	4 8 4 . )
. . . . ;.4
,
84

For 	cases 	involving 	the 	collateral 	estoppel 	effect 	of
Administrative decisions, 	the 	California 	Supreme 	Court 	in 	People
v. 	Sims 	adopted 	the 	standards 	formulated by 	the 	United 	States
Supreme 	Court 	in United 	States 	v. 	Utah 	Construction 	and Mining
Company 	(1966) 	384 U.S. 	3 	94. 	There, 	the United States Supreme
Court 	stated:
When an 	administrative 	agency 	is 	acting 	in a
judicial 	capacity 	and 	resolves 	disputed
issues 	of 	fact properly before 	it which the
parties 	have 	had 	an 	adequate 	opportunity 	to
litigate, 	the 	courts have 	not hesitated to
apply 	res 	judicata 	to 	enforce 	repose.
(Id. 	at 	p . 	4 2 2 . 	)
Thus, 	'collateral 	estoppel 	effect will be granted to an
administrative 	decision made 	by 	an 	agency 	acting 	in 	a 	judicial
capacity 	to 	resolve 	properly 	raised 	disputed 	issues 	of 	fact 	where
the parties 	have 	a 	full 	opportunity to 	litigate 	those 	issues.
In deciding whether 	the 	doctrine 	of 	collateral 	estoppel
applies 	to 	the 	termination proceeding, 	I 	am guided by my
concurrence 	in Trustees 	of 	the 	California 	State 	University 	(SUPA)
(ia90) 	PERB Decision No. 	805b-H 	(CSU 	(SUPA)). 	In my concurrence,
I 	found 	the 	doctrine 	of 	collateral 	estoppel 	was 	inapplicable 	due
to 	the 	different 	issues 	decided by 	the 	Public 	Employment
Relations 	Board 	(PERB 	or Board) 	and 	the 	State 	Personnel 	Board
(SPB) 	and 	the different 	burdens 	of 	production placed upon the
parties by PERB 	and the 	SPB. 	Further, 	I 	declined to apply the
doctrine 	of 	collateral 	estoppel 	due 	to 	the 	inherent 	differences
in the 	jurisdiction of 	PERB 	and the 	SPB, 	as well 	as public 	policy
considerations. 	In CSU 	(SUPA), 	I 	found the 	issue of whether
%
85

cause 	exists 	for 	d i s c i p l i n e 	w a s 	d i f f e r e n t 	than 	d e t e r m i n i n g 	the
underlying motivation for d i s c i p l i n e . 	Pursuant 	to 	N o v a t o 	U n i f i e d
School 	D i s t r i c t 	(1982) 	PERB D e c i s i o n N o . 	2 1 0 , 	the 	Board 	found
that 	the 	d i s c i p l i n e 	w a s 	m o t i v a t e d 	by 	the 	employees 	p r o t e c t e d
a c t i v i t y . 	In 	c o n t r a s t , 	the 	SPB 	d e c i d e d 	the 	issue 	of 	w h e t h e r 	or
not 	C a l i f o r n i a 	State 	U n i v e r s i t y . (CSU) 	had 	cause 	for 	its
d i s c i p l i n e 	of 	the 	e m p l o y e e . 	I 	found 	that 	SPB's 	limited 	statutory
j u r i s d i c t i o n 	over 	CSU 	employees 	did 	not 	include 	a 	d e t e r m i n a t i o n
w h e t h e r 	the 	d i s c i p l i n e 	w a s 	m o t i v a t e d 	by 	the 	employee's 	p r o t e c t e d
a c t i v i t y . .
As 	w i t h 	the 	SPB, 	the 	merit 	system 	rules 	for 	c l a s s i f i e d
employees 	of 	the 	District 	limit 	the 	grounds 	for 	a 	d i s m i s s a l 	and
termination 	hearing. 	The 	merit 	system 	rules 	set 	forth 	seven
grounds 	for d i s m i s s a l , 	n a m e l y , 	(1) 	incompetency,
(2) 	i n s u b o r d i n a t i o n , 	(3) 	c o n v i c t i o n of 	specified c r i m e s ,
(4) 	p o l i t i c a l 	activity on 	the 	job, 	(5) 	p e r s i s t e n t 	d i s c o u r t e s y ,
(6) 	incapacity, 	and 	(7) 	absence 	from d u t y w i t h o u t 	leave. 	.. The
merit system 	rules, 	p r o v i d e 	that 	a 	classified 	employee 	served 	w i t h
a 	n o t i c e 	of 	d i s m i s s a l 	m a y 	request 	a 	h e a r i n g 	b e f o r e 	a 	h e a r i n g
o f f i c e r , 	but 	must 	base 	such 	a 	request 	on 	the 	following 	g r o u n d s :
(a) 	That 	the 	p r o c e d u r e s 	set 	forth 	by 	the 	Merit 	System 	R u l e s
have 	not 	b e e n 	followed 	by 	the 	Board 	of 	E d u c a t i o n 	or 	its
o f f i c e r s .
(b) 	That 	sufficient 	cause 	does 	not 	exist 	to 	justify 	the
a c t i o n 	of 	the 	Board 	of 	E d u c a t i o n .
(c) 	That 	there 	has 	b e e n 	an 	abuse 	of 	d i s c r e t i o n .
Article IX, s e c t i o n 	6 	of 	the 	merit 	system 	rules 	also 	r e s t r i c t 	the
p a r a m e t e r s 	of 	the 	hearing 	as 	f o l l o w s :
86

The 	hearing 	shall 	be 	confined 	to 	the 	reasons
for 	action 	set 	forth by 	the 	Superintendent 	of
Schools 	in the written charges 	and to
relevant 	defenses 	set 	forth 	in the 	appeal.
In 	addition 	to 	the 	different 	issues 	decided by 	the 	termination
proceeding 	and 	PERB, 	the 	burden of 	producing 	evidence 	upon 	the
parties 	is 	also different. 	The District 	asserts 	that 	its 	merit
system rules 	are based on Education Code 	section 	45113, 	which
provides 	that 	"[t]he 	burden of 	proof 	shall 	remain with 	the
governing board, 	and 	any 	rule 	or 	regulation 	to 	the 	contrary 	shall
be void." 	As 	in CSU 	(SUPA) . 	the burden of proof 	is 	on the party
taking4the, disciplinary action. 	In contract, 	PERB requires 	that
the 	charging party, 	the 	employee 	in this 	case, 	present 	evidence
showing 	that 	the 	discipline was 	imposed because 	of 	her 	exercise
of protected activities'.' 	Consistent with my concurrence 	in CSU
(SUPA) 	I 	find that 	the 	doctrine 	of 	collateral 	estoppel 	should
not 	apply as 	the 	different 	issues 	and burdens 	of 	producing
evidence 	fail 	to 	satisfy the 	requirements 	of 	People v. 	Sims.
In addition 	to 	the 	different 	issues 	and different 	burdens 	of
producing evidence, 	I 	find that 	the 	termination proceeding was
not made by an agency acting 	in a 	judicial 	capacity. 	In
determining whether 	an agency 	is 	acting 	in a 	judicial 	or quasi-
judicial 	capacity, 	there 	seems 	to be 	a 	lack of 	specific
guidelines. 	Generally, 	the analysis 	involves 	a determination
that 	the procedures 	and decision resemble 	a 	judicial 	decision
with 	respect 	to 	the 	procedure 	each party has 	the 	opportunity 	to
use ; 	(4 	Davis, 	Administrative 	Law Treatise 	(2d 	ed. 	1983)
sec. 21 :3, p. 53.)
,
87

In People v. 	Sims ; 	the 	court discussed the 	standard and
factors 	used 	to 	determine whether an agency 	is 	acting 	in a
judicial 	capacity. 	The 	court 	admitted 	that 	there was 	uncertainty
and 	confusion 	in 	caselaw as 	to whether decisions 	of 	an
administrative 	agency may 	collateral 	estop 	a 	later 	action. 	The
court 	stated, 	"[t]he problem seems 	to 	lie 	in the varying 	types 	of
administrative 	agencies 	and 	their procedures, 	and widespread
disagreement whether their decisions 	are 	judicial, 	quasi-
judicial, 	or administrative only." 	(Id. 	at p. 	477, 	quoting
-
Williams v. 	City of Oakland 	(1973) 	30 Cal.App.3d 64, 	68 	[106
Cal. 	Rptr. 	101].) 	In 	seeking 	to 	determine 	whether 	a 	California
Department 	of Social 	Services 	(DSS) 	hearing decision may have
collateral 	estoppel 	effect, 	the 	court 	found appropriate 	guidance
in United States v. 	Utah Construction Company, 	supra, 	384 	U.S.
394. 	There, 	the United States 	Supreme Court 	stated that
collateral 	estoppel 	may be 	applied 	to 	decisions 	made 	by
administrative 	agencies 	"when an administrative 	agency 	is 	acting
in a judicial 	capacity 	and 	resolves 	disputed 	issues 	of 	fact
properly before 	it 	which 	the 	parties 	have 	had 	an adequate
opportunity 	to 	litigate 	. . . " 	fid, 	at p. 	422.) 	To 	ascertain
whether 	an 	administrative 	agency 	is 	acting 	in 	a 	judicial
capacity, 	the 	federal 	courts 	have 	looked 	for 	factors 	indicating
that 	the 	administrative 	proceedings 	and 	determination possess 	a
"judicial 	character."
In People v. 	Sims, 	the 	court 	concluded the hearing conducted
by - the 	DSS 	was 	a 	judicial-like 	adversary proceeding. 	The 	court
. .
88

"noted 	the 	fact 	that 	statewide 	and 	local 	administrative 	agencies
are prohibited 	from 	exercising...."judicial 	power" 	by 	the 	California
constitution does 	not 	mean 	that 	agency proceedings 	and
determinations 	may never be 	judicial 	in nature. 	With 	regard 	to
the 	DSS 	hearing, 	the 	court 	found 	the 	statute 	required that 	the
hearing be 	conducted 	in an 	impartial 	manner 	and 	that all
testimony be 	submitted under oath or affirmation. 	Further, 	the _.
DSS 	allowed each party to call, 	examine, 	and cross-examine
witnesses, 	as well 	as 	to 	introduce 	documentary evidence 	and make
oral 	or written argument. 	At 	the 	request 	of 	the 	county or
respondent, 	the 	chief 	referee 	was 	required 	to 	subpena witnesses
whose 	expected 	testimony 	would be 	material 	or 	necessary 	to 	the
case. 	It was 	also 	required by 	regulation that 	a 	verbatim record
of 	the 	testimony 	and 	exhibits 	introduced 	at 	the 	hearing be
maintained." 	In addition, 	the parties 	received 	from the DSS 	a
written 	statement 	of 	the 	reasons 	why 	the 	hearing 	officer
exonerated the 	respondent 	of 	the 	fraud allegations. 	Finally, 	the
court 	determined 	the 	hearing 	officer's 	decision, 	itself, 	was
judicatory 	in nature. 	The 	decision 	involved the 	application of 	a
rule 	to a 	specific 	set of 	existing 	facts, 	rather than the
formulation of 	a 	rule 	to be 	applied 	in all 	future 	cases. 	After
the 	decision had been adopted by the 	Director of 	the 	DSS, 	the
county had both 	the 	right 	to 	seek 	a 	rehearing before 	the 	agency
and 	the 	right 	to petition 	for 	review 	in 	superior 	court.
Finally, 	the 	court 	noted 	that 	although 	the 	hearing was 	not
conducted according 	to 	the 	rules 	of 	evidence 	applicable 	to
.1
89
'

- -
- -
judicial proceedings, 	this 	difference did not preclude 	a 	finding
that the DSS was acting in a 	judicial 	capacity. 	The 	court 	noted
that 	collateral 	estoppel 	effect 	is 	given to 	final 	decisions 	of
constitutional 	agencies 	such 	as 	the 	Worker's 	Compensation Appeals
Board 	and 	the 	Public 	Utilities 	Commission 	even 	though proceedings
before 	these 	agencies 	are 	not 	conducted 	according 	to 	judicial
rules 	of 	evidence. 	The 	court 	stated the pertinent 	inquiry 	is
whether 	the 	different 	standard 	for 	admitting 	evidence 	at 	the
hearing 	deprived 	the 	parties 	of 	a 	fair 	adversary proceeding 	in
which they could fully litigate the 	issue(s). 	In this 	case, 	the
court 	determined 	the 	hearing did not 	deprive 	the parties 	of 	a
fair 	adversary 	proceeding.
In People v. 	O'Daniel 	(1987) 	194 Cal App. 3d 715 	[239
Cal.Rptr. 	790], "the 	court 	followed the guidance 	set 	forth 	in
People v. 	Sims 	to determine, 	whether a prison disciplinary hearing
was 	judicial 	in character. 	Unlike 	the 	situation 	in 	People v.
Sims, 	the 	court 	determined 	the 	prison disciplinary hearing was
not 	judicial 	in 	character. 	The 	court 	found the prison
disciplinary 	hearing was 	not 	conducted by 	a 	judicial 	officer
acting 	in 	a 	judicial 	capacity. 	California Administrative 	Code
section 	3315 	provided 	that 	the 	prison disciplinary 	hearings 	may
be 	conducted by 	a 	"senior 	hearing disciplinary 	officer," 	who 	in
this 	case was 	a 	correctional 	officer at 	the 	institution. 	Thus,
the 	prison disciplinary hearing was 	not 	heard by 	a 	judicial
officer 	or other 	official 	with 	legal 	background 	or 	training.
Further 	unlike 	the 	situation in People v. 	Sims. 	the prison
90
.,

- -
disciplinary hearing 	did 	not 	require 	that 	the 	hearing 	be
conducted in an impartial 	manner 	and 	that 	all 	testimony 	be
submitted under oath or affirmation. 	In People v. 	Sims, 	the
hearing 	officer was 	a 	neutral 	and 	detached 	judicial 	officer 	not
affiliated with any of 	the parties. 	Specifically, 	the 	hearing
officer was 	from a 	separate 	state 	agency 	and 	not 	an 	employee 	o f
one of 	the parties. 	For all 	these 	reasons, 	the 	court held that
the 	doctrine 	of 	collateral 	estoppel 	did not 	apply.
In Carmel Valley Fire 	Protection District v. 	State 	of
California	California 	(1987) 	190 Cal.App.3d 521 	[234 Cal.Rptr. 	795], 	the
court 	concluded 	the 	State 	was 	collaterally 	estopped 	from
attacking 	the 	State 	Board of 	Control's 	findings. 	The 	court
determined 	that 	all 	the 	elements 	of 	administrative 	collateral
estoppel 	were present. 	With 	regard 	to whether 	the 	administrative
agency was 	acting 	in a 	judicial 	capacity, 	the 	court 	found 	the
State 	Board of 	Control 	was 	created by 	the 	State 	Legislature 	to
exercise 	quasi-judicial 	powers 	in 	adjudging 	the 	validity 	of
claims against 	the State. 	At 	the 	time of 	the hearing, 	the State
Board of 	Control 	proceedings 	were 	the 	sole 	administrative 	remedy
available 	to 	local 	agencies 	seeking 	reimbursement 	for 	State-
mandated costs. 	In particular, 	the 	State Board of 	Control
examiners had the power to administer oaths, 	examine witnesses,
issue subpoenas, and receive 	evidence. 	Further, 	the hearings were
adversarial 	in nature 	and 	allowed 	for 	the 	presentation of
evidence by the claimant, 	the Department of Finance, 	and any
other 	affected 	agency.
. .. . .'
.
91

In 	applying 	these 	cases 	to 	the 	District's 	termination
proceeding, I 	conclude 	that 	the 	termination 	hearing 	was 	not
judicial 	in character. 	Article 	III 	of 	the 	merit 	system rules 	for
classified 	employees 	provides 	that 	the 	" . . . 	Hearing 	Officers
shall 	be 	appointed by 	the 	Board 	of 	Education 	consistent 	with 	the
needs 	of 	the district." 	Further, 	Article 	III 	of 	the merit 	system
rules provides, 	in pertinent part, 	that:
The 	Hearing Officers 	may 	receive 	a 	stipend
commensurate with 	services 	rendered. 	The
amount 	of 	any 	stipend 	shall 	be 	established by
separate 	action of 	the 	Board of 	Education
whose 	discretion 	in this 	matter 	shall 	be
complete and final. 	If 	the appeal 	is denied,
the 	appellant 	shall 	share 	equally 	in the 	cost
of 	the 	stipend 	for 	the 	Classified 	Employees
Hearing 	Officer.
While Article 	III 	also provides 	for a 	nomination procedure 	for
the 	appointment 	of 	hearing officers, 	the 	administrative 	law 	judge
found 	the 	interrelationship 	between 	the 	appointment 	authority 	of
the 	Board of 	Education 	and 	the 	nomination 	authority 	of 	the
various 	local 	officials was unclear. 	Despite 	this 	fact, 	I
conclude that 	the 	District's 	unqualified 	appointment 	of 	the
hearing officer does 	not 	result 	in an 	independent, 	unbiased, 	and
neutral 	proceeding.
Article 	IX, 	section 	6 	of 	the merit 	system rules 	for
classified 	employees 	contains 	the 	only 	reference 	to 	the 	hearing
procedures:
Conduct 	of 	Hearing
A Hearing 	Officer 	shall 	begin 	the 	hearing
within 	fifteen 	(15) 	days 	from the day a
written 	request 	for 	hearing 	and 	a written
answer to 	the 	charges 	is 	received by 	the
.-
. . .. ."
" :
.
92

Board of 	Education. 	The 	hearing date 	may be
continued 	for one 	time 	at 	the 	request 	of 	the
district 	or the 	employee with 	the 	approval 	of
the 	Hearing Officer upon 	the 	showing 	of 	good
cause. 	Additional 	continuances 	may be
obtained by mutual 	agreement 	of 	the 	parties
involved. 	The 	hearing 	shall 	be 	confined 	to
the 	reasons 	for 	action 	set 	forth by 	the
Superintendent 	of 	Schools 	in 	the written
charges 	and to 	relevant 	defenses 	set 	forth 	in
the 	appeal. 	Equal 	opportunity 	shall 	be
afforded 	the 	Board 	of 	Education 	and 	the
employee 	to present 	evidence. 	The 	findings
of 	the 	Hearing 	Officer 	shall 	be 	rendered 	in
writing 	to 	the 	employee 	and 	the 	Board of
Education within seven 	(7) 	days 	after the
hearing 	is 	closed. 	The decision of 	the
Hearing Officer 	in each case 	is 	final 	and
effective 	when 	rendered.
These procedures 	fail 	to 	grant 	the 	hearing 	officer 	any 	authority
to 	subpena-witnesses or documents. 	Additionally, 	there 	is no.
procedure 	allowing the parties 	to call, 	examine 	and cross-
examine witnesses. 	The procedures 	do not 	require 	that 	a 	record
of 	the 	hearing be 	maintained 	or 	a written 	statement 	of 	reasons
for the hearing officer's decision. 	Further, 	there 	is 	no
requirement 	that 	the 	testimony be under oath. 	As 	there 	are 	no
procedures granting 	the 	hearing 	officer 	the 	power 	or 	authority 	to
conduct a 	judicial-like hearing, 	I 	conclude 	that 	the hearing 	is
not 	judicial 	in character. 	Further, 	the 	fact 	that 	the hearing
officer 	is 	appointed by 	the 	District 	to 	conduct 	the 	termination
hearing 	casts 	doubt 	on whether 	the 	hearing 	officer 	is 	indeed
neutral.
Based 	on 	the 	termination proceeding's 	lack 	of 	judicial
character, 	as well 	as 	the different 	issues presented and
...
93

different burdens of production, 	I 	conclude 	the doctrine of
collateral-estoppel 	"should 	not 	apply 	to 	the 	termination decision.
94
.,