Madera County Office of Education (PERB 1334E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TIMOTHY G. 	SIMERAL,
Charging 	Party,
v.
MADERA COUNTY OFFICE OF EDUCATION,
Respondent.
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) 	Case No. 	SA-CE-1858
PERB Decision No. 	1334
June 25, 	1999
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Appearances; 	Timothy G. 	Simeral, 	on his own behalf; 	Stroup &
de Goede by Raymond W. 	Dunne, 	Attorney, 	for Madera County Office
of Education.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
Timothy G. 	Simeral 	(Simeral) 	to a proposed decision 	(attached) 	by
a 	PERB administrative 	law judge 	(ALJ). 	In the proposed decision
the ALJ 	dismissed 	Simeral's 	unfair practice 	charge 	alleging 	that
the Madera County Office 	of 	Education 	(Madera COE) 	retaliated
against 	Simeral 	for his 	exercise 	of protected 	conduct 	in
violation of 	section 3543.5(a) 	of 	the Educational 	Employment
Relations 	Act 	(EERA).1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce

The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case
including 	the proposed decision, 	Simeral's 	exceptions 	and Madera
COE's 	response 	thereto. 	The Board finds 	the ALJ's 	findings 	of
fact 	and 	conclusions 	of 	law to be 	free 	of 	prejudicial 	error and
adopts 	them as 	the 	decision of 	the Board 	itself.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in 	Case
No. 	SA-CE-1858 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Dyer and Amador joined 	in this 	Decision.
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
N
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TIMOTHY G. 	SIMERAL,
Charging 	Party,
v.
MADERA COUNTY 	OFFICE 	OF
EDUCATION,
Respondent.
___________
Unfair 	Practice
Case No. 	SA-CE-1858
PROPOSED 	DECISION
(4/15/99)
Appearances: 	Timothy G. 	Simeral, 	on his own behalf; 	Stroup &
de Goede, 	by Raymond W. 	Dunne, 	Attorney, 	for Madera County Office
of Education.
Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On August 	10, 	1998, 	Timothy G. 	Simeral 	(Simeral) 	filed an
unfair practice 	charge with 	the 	Public 	Employment 	Relations 	Board
(PERB or Board) 	against 	the Madera 	County Office 	of 	Education
(Madera COE). 	The charge alleged violations of Educational
Employment 	Relations Act 	(EERA or Act).1
On September 28, 	1998, 	the Office of 	the General 	Counsel of
PERB, 	after an investigation, 	issued a complaint 	against 	the
respondent, 	alleging violations of 	subdivision 	(a) 	of 	section
3543.5.2 On October 21, 	1998, 	an informal 	conference was held in
1The EERA 	is 	codified 	in 	the 	Government 	Code 	(commencing
with section 3540). 	All 	section references, 	unless otherwise
noted, 	are to the Government Code.
2Subdivision 	(a) 	of section 3543.5 	states:
It 	shall 	be unlawful 	for a public 	school
employee 	to 	do 	any of 	the 	following:
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an unsuccessful 	attempt 	to 	reach 	settlement. 	On the 	same 	date
the 	respondent 	answered the 	complaint, 	denying 	all 	material
allegations 	and 	asserting 	affirmative 	defenses.
A 	formal 	hearing was 	held before 	the 	undersigned 	on
January 6 	and 7, 	1999. 	Both parties briefed their respective
positions, 	with the 	last brief being received on April 	5, 	1999.
At 	that 	time 	the 	case was 	submitted 	for a proposed decision.
INTRODUCTION
Simeral 	alleges 	that 	his 	action of protesting 	an 	in-service
training 	session 	concerning 	the 	inoculation 	of 	insulin 	into
diabetic 	students 	caused 	the 	Madera 	COE 	to 	discriminate 	against
him. 	He 	further alleges 	that 	his 	actions 	were protected by the
EERA and that 	the Madera COE's 	subsequent 	action of 	(1) 	issuing
him a negative performance 	evaluation and 	(2) 	rejecting him
during his 	probationary period, 	was 	a direct 	result 	of 	such
protected 	activity.
The 	Madera 	COE 	states 	that 	Simeral's 	allegedly protected
activity was 	not 	the 	cause 	of 	its 	negative personnel 	action.
Rather, 	it 	insists, 	it was based on his own performance.
(a) 	Impose or threaten to 	impose reprisals 	on
employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise of 	rights
guaranteed by this chapter. 	. 	. 	.
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FINDINGS 	OF 	FACT
Jurisdiction
The 	parties 	stipulated 	that 	the 	charging party was 	a public
school 	employee 	during 	the 	events 	discussed herein 	and 	the
respondent 	is 	a public 	school 	employer, 	both within the meaning
of EERA.
Background
Simeral 	was 	a Madera 	COE probationary school 	bus 	driver who
was hired on February 24, 	1997, 	after having previously worked as
a 	substitute 	for 	a year and a 	half. 	The 	classified employee
collective bargaining 	agreement 	(CBA) 	requires 	a 	twelve-month
probationary period 	for bus 	drivers. 	Simeral 	worked out 	of 	the
Madera COE's mountain area bus barn, 	which is 	located at 	the
Coarsegold 	School 	in 	the 	Coarsegold Union 	Elementary 	School
District 	(CUESD). 	CUESD has 	its own buses, 	and the two fleets
are 	separate operations, 	each with its 	own drivers 	and buses.
The Madera 	COE's 	bus 	barn or garage 	is 	located 	in an area below
and behind the 	school, 	in a 	remote 	area which the 	employees 	refer
to as the 	"hole".
The 	Madera 	COE 	transports 	only 	special 	education 	and/or
medically 	fragile 	students. 	The Madera COE uses 	the 	mountain
area bus 	barn as 	its 	base 	of 	operations 	to 	transport 	its 	students
for all 	mountain area 	school 	districts 	in the county. 	Because of
the 	special 	needs of 	these 	students, 	the Madera COE employs bus
monitors, 	also called 	"riders", 	to assist 	students 	during bus
runs. 	The Madera 	COE's mountain bus 	fleet 	consists 	of 	small
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buses 	with 	limited 	seating 	capacity 	so 	as 	to provide 	the 	space
and 	equipment 	necessary 	to 	accommodate 	students 	using
wheelchairs.
Simeral's 	contention 	is 	that 	his protest 	of 	an 	insulin
inoculation 	in-service was 	the 	cause 	of 	his 	rejection.
Therefore, 	this 	incident will be described first, 	even though it
is, 	chronologically, 	one of the later events. 	After a recitation
of this 	incident, 	a series of 	incidents, 	all 	involving Simeral,
will 	be 	described. 	It 	is 	these 	circumstances 	the Madera COE
relies 	on to 	justify 	its 	rejection of 	Simeral.
Insulin 	In-Service 	Session
In early January 1998, 	Mary Besharse 	(Besharse), 	Erin Ballou
(Ballou) 	and 	a 	teacher at 	Coarsegold School 	requested the Madera
COE's nurse, 	Laura Agah 	(Agah), 	to present 	information regarding
special 	needs 	for 	students with diabetes. 	A student, 	who was
regularly transported by the 	Madera 	COE, 	had recently been
diagnosed as 	having diabetes. 	Agah decided to 	conduct 	the
session because 	she 	felt 	it was needed to 	"meet 	the needs, 	and
try to 	. . . 	educate, 	and therefore 	relieve 	some 	of 	the 	fear 	and
anxiety 	. 	. 	. 	." 	The session was held on the morning of
January 8, 	1998, 	after the morning bus 	runs were 	completed.
Simeral 	was 	told by his 	fellow employees 	that 	it 	was 	a
mandatory session 	for all 	bus 	drivers. 	Although he 	agreed to
attend, 	he made 	it very clear that 	he did not have 	the 	education
or skills 	to be giving 	insulin 	shots 	to 	a 	student 	when his bus 	is
loaded with other 	students. 	He 	believed that 	in 	such an
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emergency situation, 	it would be more 	effective 	to 	take 	the 	child
to 	the nearest 	medical 	facility. 	It 	was 	at 	this 	session that 	he
admittedly 	"lost 	his 	cool"3 and walked out 	of 	the program. 	He
called 	the 	transportation 	department 	headquarters 	to 	complain 	to
his 	supervisor about 	being been required to 	attend the 	session.
It was 	from Simeral's 	complaint 	that Margo Ford 	(Ford), 	the
Madera COE's 	transportation supervisor, 	first 	learned of 	the 	in-
service. 	Ford was 	not 	as 	concerned with the meeting's 	content 	as
she 	was 	about 	an 	in-service 	session 	for 	her 	drivers 	being 	held
without her approval. 	At 	a meeting to review his 	complaint, 	Ford
said 	that 	Simeral's 	objection to 	the meeting was 	legitimate. 	She
told the women that 	they were wrong in dragging 	"Tim in there 	. 	.
. 	and 	[making] 	him think that 	it was 	a mandatory in-service."
During 	the meeting 	she 	advised 	the 	women 	that 	no 	credit 	or
overtime 	pay would be 	given them 	for 	their 	in-service 	attendance
because 	it 	had not 	been approved 	in advance. 	Ford also 	called
nurse 	Agah 	and verbally 	reprimanded her 	for 	failing 	to 	secure
approval 	before 	offering the 	training 	to 	the 	drivers.
Edward W. 	Dorn 	(Dorn), 	the Madera COE's division
administrator of business 	and administrative 	services, 	who 	acts
as 	the Madera COE's personnel 	director, 	is 	the person who
ultimately decided 	that 	Simeral 	should be 	terminated. 	He 	said
that 	although he 	heard about 	the 	in-service 	incident 	from Ford,
it 	was 	not 	until 	he 	read the unfair practice 	charge 	that 	he
3The 	term 	"lost 	his 	cool" 	was never defined, 	but 	seems 	to
mean 	raising 	his 	voice 	and otherwise 	displaying 	anger 	in 	a 	loud
and provocative 	manner.
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learned 	Ford was 	first 	apprised 	of 	the 	incident 	by 	a 	complaint
from Simeral.
Madera 	COE's 	Justification 	for 	its Actions 	Regarding 	Simeral
Erin 	Ballou
Ballou, 	a Madera COE bus monitor, 	believed she 	saw a 	lack of
professionalism in 	Simeral. 	She 	cited one 	instance 	in which 	she
believed he 	was 	a bit 	short 	with a nine year-old 	student. 	She
also believes 	he 	failed 	to 	keep his 	bus 	as 	clean as 	other
drivers. 	In addition, 	she believed he 	left 	the bus 	on one
occasion with the motor 	still 	running, 	which is 	against 	the
Madera 	COE policy. 	Ballou 	temporarily worked as 	a monitor 	for
Simeral 	when he 	drove 	Besharse's 	bus while 	she 	was 	on medical
leave. 	She 	eventually began 	to 	document 	his behavior and
subsequently reported her concerns 	to 	Ford. 	She 	admits 	that 	he
was 	the 	only bus 	driver 	she 	documented.
Simeral 	questions 	Ballou's 	singling him out 	for 	such
documentation and her 	selective memory. 	He 	points 	to her very
precise 	recollection of 	every one 	of 	his 	alleged misdeeds 	and
compares 	it 	to her 	extreme 	reticence 	regarding 	the 	details 	of 	an
incident 	in which 	a 	student-occupied wheelchair 	toppled over 	in a
bus 	driven by Besharse 	and 	monitored by her.
Mary 	Besharse
Besharse 	complains 	about 	Simeral's 	reluctance 	to 	accept 	her
assistance 	in demonstrating 	the use 	of 	student 	wheelchair 	tie-
downs. 	However, 	she admits his 	"reluctance" 	was 	limited to some
facial 	expressions 	which 	she 	could not 	describe 	in any detail.
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In addition, 	she 	said that 	"he would look at 	[her] 	in a certain
way. 	And 	I 	have never noticed that 	from anyone 	else, 	not 	even my
own husband." 	Because of 	this, 	she 	changed to a more
conservative 	style 	of dress 	despite 	the 	summer heat. 	She 	also
said that 	on one 	occasion 	she 	saw him look at 	D e w i e , 	an
attractive teacher's 	aide, 	"with such lust 	in his 	eyes." 	She
discussed her concerns with Ballou, 	who 	felt 	the 	same way.
Eventually, 	she began to 	report 	her concerns 	to 	Ford. 	She
believes 	she 	reported negative 	aspects 	of 	Simeral's 	actions 	to
Ford on an average 	of 	once 	a week.
Simeral 	points 	out 	the 	inconsistency of her 	complaints 	about
his not 	observing her tie-down technique, 	when it 	was 	a
wheelchair 	student 	in her bus 	that 	toppled over. 	He 	complains
that 	her period of 	observation of 	him each day was 	so 	limited
that 	her 	testimony regarding 	"lust 	in his 	eyes" 	was 	contrived.
However, 	this particular observation was made 	in the 	"motor" 	room
when Besharse 	was 	on 	limited duty during medical 	recuperation.
He 	insists 	such 	an 	observation 	is 	extremely 	subjective 	and 	that
she 	has 	no 	special 	training 	or 	educational 	background 	that 	would
qualify her 	to 	accurately 	draw 	such 	conclusions 	from 	fleeting
observations.
Ford 	initially discounted the women's 	complaints. 	She 	told
Simeral 	not 	to 	let 	them get 	to 	him and advised him that 	he 	was
better off 	avoiding 	them. 	She 	even called him at 	home 	one 	day
telling him that 	she 	was 	tired of 	these 	women complaining 	about
him and that 	she 	was 	going 	to 	speak to 	them about 	the 	matter.
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- -
Ford even asked 	Simeral 	if he got 	a big 	laugh 	from the 	fact 	a
wheelchair 	tipped over on a 	Besharse/Ballou bus 	after 	they had
complained 	about 	his 	inadequacies 	regarding 	tie-down 	skills.
Their 	complaints 	did not 	impact 	her 	ratings 	in 	Simeral's
six-month evaluation. 	On September 15, 	1997, 	Simeral 	received
his 	first 	evaluation. 	All 	of 	his marks were 	in the highest
category, 	"Satisfactory - Meets Standards of Expectations."
Improper 	Student 	Drop-Off
In mid-November 	1997, 	Ford received a parent 	complaint 	that
Simeral 	had dropped off 	a 	special 	education pre-school 	student
without 	verifying 	there was 	a parent 	or caregiver present 	to
accept custody. 	In actuality, 	the parent was home, 	but 	she did
not 	believe 	Simeral 	could 	see 	her when he 	dropped 	the 	student
off. 	This practice 	is prohibited 	for obvious 	safety reasons.
Day 	Care 	Center 	Complaint
In mid-November 	Ford 	received 	a 	telephone 	complaint 	from
Indian Springs, 	a day care 	center adjacent 	to the 	Oak Creek
Intermediate 	School. 	Simeral 	was 	accused of making their
personnel 	very uncomfortable 	each 	day by his 	practice 	of 	driving
slowly by the 	center, 	stopping 	and opening the 	bus 	door or
windows 	and 	staring 	at 	staff 	and 	students 	in the 	day care
playground area. 	Ford was 	told that 	a harassment 	complaint 	would
be made 	if 	this 	did not 	stop.
Ford went 	to 	the 	day care 	center and 	surreptitiously
observed 	Simeral 	as 	he passed by. 	She 	saw him drive 	by very
slowly 	in his 	loaded bus 	with his window open and 	stare 	at 	the
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day care 	center. 	After dropping off 	students 	at 	the 	school, 	he
drove 	by the 	day care 	center 	again. 	This 	time 	Ford observed him
staring, 	for thirty seconds, 	in the direction of the children and
a pretty, 	blond teacher 	in the play area. 	Ford believed 	that 	the
manner 	in which 	Simeral 	looked at 	them 	seemed 	to 	her 	like
"stalking." 	She believed, 	from her own observations, 	that 	the
day 	care's 	complaints 	were valid.
She 	testified 	that 	she 	was 	convinced 	that 	Simeral's 	behavior
presented 	a 	potentially 	serious 	safety 	risk 	for 	the 	day 	care
personnel 	and possibly 	for 	the Madera 	COE's 	own 	students. 	She
described her reaction as 	one 	that 	created a 	rage 	inside 	of 	her.
She 	decided 	to 	fire 	him immediately and discuss 	the 	matter 	later
with Dorn.
Unauthorized 	Personal 	Use 	of 	the 	Bus
After her day care 	observation, 	Ford attempted to 	contact
Simeral 	at 	the mountain area bus barn. 	It was mid-day, 	between
his morning and afternoon routes. 	When she was 	not 	able 	to 	find
him there, 	she went 	to the Oakhurst 	gym. 	She had previously
given him permission to drive his bus 	to the gym, 	so he 	could
work out 	during his 	duty-free 	time. 	She 	could not 	find either
him or 	the bus 	at 	the 	gym. 	Later that 	day she 	calmed down and
discussed 	the 	matter with Dorn.
Simeral 	insists 	this 	testimony is not 	credible, 	stating that
she 	could have 	located him at 	any time 	at 	any 	student's 	stop 	on
his 	route 	or 	contacted him on his 	bus 	radio. 	She 	also 	could have
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spoken to him at 	the 	Coarsegold School, 	when he 	started his
afternoon route.
Oral 	and Written Reprimand
The next morning, 	before his morning routes, 	she met with
Simeral 	at 	the mountain area bus barn. 	She 	told him about 	her
observations 	of 	his 	day care 	center 	drive-by behavior 	and
explained 	that 	the 	center's 	personnel 	were 	very uncomfortable
with his 	actions. 	She 	told him to 	stop 	this behavior
immediately. 	She 	stressed that 	a 	repetition of 	this 	conduct
could 	result 	in his 	dismissal. 	She 	also warned him about 	both
unsupervised 	student 	drop-offs 	and his 	unauthorized bus 	use 	the
previous 	day.
Simeral 	explained that 	he 	and his 	wife 	own 	a 	day care 	center
and that 	he 	did not 	intend 	to make 	the 	children or anyone 	else
uncomfortable.
On November 21, 	1998, 	she memorialized her verbal
admonitions 	in a written reprimand, 	which she gave him, 	with a
copy to his personnel 	file. 	In this 	reprimand 	she 	cited all
three 	areas 	of her concern.
Second Day 	Care 	Complaint
Approximately two weeks 	later, 	shortly before 	the 	holiday
break, 	Ford again received a 	complaint 	from the 	Indian Springs
day care 	center, 	stating 	that 	Simeral 	had resumed his 	staring
behavior. 	Without 	going back to the 	center, 	Ford changed his
route, 	so he 	no 	longer would pass 	the day care 	center. 	She did
not 	discuss 	this 	new complaint 	with him.
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Simeral 	points 	out 	the 	inconsistency 	in Ford wanting 	to 	fire
him on the 	spot 	the 	first 	time 	she 	learned of 	this 	behavior and
merely changed his 	route 	the 	second 	time 	it 	occurred.
Simeral's 	Second 	Evaluation
Simeral's 	probationary period was 	due 	to 	expire 	on
February 23, 	1998. 	According to the CBA, 	the Madera COE 	is
required 	to 	conduct 	a 	final 	evaluation and conference 	with
Simeral 	prior 	to 	the 	completion of 	his 	probationary period.
Because 	the 	mountain 	schools 	would have 	their 	two 	week mid-winter
break during 	the 	last 	two weeks 	of 	his probationary period, 	Ford
met with Simeral 	on the morning of 	February 10, 	1998, 	for his
evaluation 	conference. 	She 	presented him with his 	final 	written
evaluation. 	At 	the 	time 	she presented it 	to him, 	she 	explained
to 	Simeral 	that 	this 	was 	not 	a good evaluation and 	that 	the
personnel 	office 	might 	decide 	to 	terminate 	him upon 	its 	review.
Simeral's 	attitude 	towards 	his 	possible 	termination was 	an
expression of 	incredulity. 	He 	questioned who 	the Madera 	COE
could get 	to take over his 	route, 	insisting that 	the most 	likely
candidate, 	a Madera COE substitute driver, 	would be unable 	to
complete 	it.
The 	Madera 	COE 	classified 	evaluation 	form 	is 	used 	for both
permanent 	and probationary employees. 	In 	the 	"Overall 	Employee
Performance" 	category, 	Ford had two 	initial 	choices. 	One 	choice
was 	to mark the 	box 	that 	states 	she 	does 	not 	recommend continued
employment, 	in effect 	a recommendation of 	rejection in probation.
Her other choice 	was 	to 	rank 	Simeral 	in one 	of 	the 	three
11

performance 	levels. 	She 	chose 	the 	second alternative. 	Her next
choice was 	to 	rank him in one 	of 	three 	decreasingly effective
levels. 	She rated him in the 	lowest 	of 	these 	three 	levels, 	but
modified the printed text, 	as 	follows:
The 	employee's 	performance 	needs 	improvement
and 	is 	deficient 	in 	meeting 	l a c k i n g 	in 	s o m e
of 	the 	standards 	and requirements 	of 	the
Madera 	County Office 	of 	Education. 	The
employee 	exhibits 	potential 	for 	improvement.
The 	level 	of performance will 	be 	re-evaluated
no 	later 	than 	4/23/98 	An 	"Employee
Improvement 	Plan" 	must 	be 	completed and
attached. 	[Ford deleted the 	strike-out
language 	and 	inserted 	the 	underlined
language.]
-
The 	evaluation 	form 	sets 	forth 	ten broad work 	categories.
Five 	of 	these 	have 	from three 	to 	five 	subcategories 	within them.
In general, 	with regard to the categories of quality/quantity of
work, 	job knowledge, 	attendance and punctuality, 	and work
characteristics, 	he 	received either the highest 	or the next 	to
the highest 	ranking.
In 	the 	broad 	category of 	working 	relationships 	he 	was 	ranked
in 	five 	separate 	categories. 	Three of 	these 	rankings 	are
noteworthy. 	In 	"Courtesy and Tact", 	a checkmark was placed next
to 	"[b]ehavior was 	sometimes 	seen as 	discourteous 	or 	tactless;
on occasion difficult 	to work with." 	In 	"Relationship with
Co-Workers", 	a 	checkmark was placed next 	to 	"[w]illing to assist
co-workers 	and others 	when requested to 	do 	so. 	Usually a good
team member." 	In 	"Relations with Supervisor", 	a checkmark was
placed next 	to 	"[u]sually 	accepted 	constructive 	criticism and
most 	suggestions 	from 	supervisor."
12

Under 	"Work Characteristics", 	Ford wrote, 	"Tim needs 	to keep
his 	cool 	when dealing with 	stressful 	situations 	regarding 	his
fellow employees."
Under 	"Working Relationships", 	Ford wrote, 	"Tim needs 	to
work on the 	strained relationship with his 	co-workers. 	It 	is
imperative 	that 	the 	drivers 	work as 	a 	team."
An Employee 	Improvement 	Plan 	(EIP) 	was 	attached to 	the
evaluation. 	In it 	the three 	areas 	cited as 	needing 	improvement
were 	(1) 	bus cleanliness, 	(2) 	paperwork,4 and 	(3) 	attitude
towards 	fellow employees.
The 	only comment 	in the 	EIP's 	"Recommendations 	and
Commendations" 	section stated:
During 	this 	evaluation period 	a 	complaint
from a private 	citizen was 	brought 	to 	Tim's
attention. 	Following a 	conference with Tim,
Tim took 	the 	appropriate 	steps 	to 	alleviate
the concern.'51
Tim has 	a 	good 	relationship with 	the 	children
and parents on the 	route. 	He has behavior
management plans with each student, 	that 	have
worked.
The 	evaluation was 	signed by Simeral 	and 	Ford on 	February 	10
and by Dorn on February 12, 	1998.
4Ford explained 	that 	bus 	drivers 	are 	required 	to 	submit
various 	forms, 	i.e., 	daily bus reports, 	fuel 	logs and bus 	route
directions. 	Simeral 	did not 	file 	these 	reports 	in a 	timely
manner. 	She 	admitted 	she 	never mentioned his paperwork
deficiencies 	to him.
5She 	said 	this 	comment 	referred to 	the 	day 	care 	center
incident. 	She 	admitted that 	instead of 	Simeral 	taking 	the
appropriate 	steps, 	she did, 	i.e., 	she changed his 	route to
eliminate 	any reason to 	drive 	by the 	center.
13

Simeral 	alleged 	a number of 	inconsistencies 	in 	this
evaluation. 	A narrative 	comment 	on his 	bus 	being 	dirty was
inconsistent 	with 	a 	check mark 	in 	the 	"generally neat 	and
accurate" 	category. 	However, 	Ford did write 	in a narrative below
this 	category, 	that 	Simeral 	"[n]eeds 	to 	sweep bus 	every day."
Simeral 	insists 	the 	only negative 	thing 	that 	happened
between his 	standard evaluation 	in 	September 	and 	the 	negative 	one
in February was 	his 	"losing his 	cool" 	in the 	insulin meeting. 	He
complains 	that 	all 	of 	the 	rest 	of 	the 	incidents 	occurred 	in
January and were 	never brought 	to his 	attention prior 	to
receiving 	the 	evaluation.
Melinda 	Boyd
After her 	conference with 	Simeral 	ended, 	Ford had a 	chance
meeting with Lee Bendz 	(Bendz), 	CUESD's then transportation
director. 	Bendz 	said, 	" . . . 	oh, 	by the way, 	I've been meaning
to tell you this 	. 	. 	. 	." 	He went on to say that one of his
drivers, 	Melinda Boyd 	(Boyd), 	reported that on several occasions
over the past year, 	after she entered her parked bus, 	she had
been 	startled 	by 	Simeral 	suddenly 	appearing 	from behind 	the
seats, 	inside 	the bus. 	Boyd told Simeral 	his behavior scared
her, 	but 	he 	continued to enter her bus without 	being 	invited.
The 	fact 	that 	they worked 	for 	entirely 	separate 	employers 	added
to her sense 	such action was 	improper. 	Eventually, 	she 	locked
her bus whenever 	she 	left 	it.
Simeral 	said he 	went 	into her bus 	to nap 	and 	it 	only
happened twice. 	If 	Simeral was 	stretched out 	to take a nap, 	he
14

would have 	had 	to 	extend himself 	over 	the 	aisle, 	as 	there was 	no
bus-wide 	back 	seat. 	As 	such he would have 	been visible 	to 	anyone
entering the bus. 	And yet, 	Boyd did not 	see him when 	she 	first
entered 	the 	bus. 	She 	insists 	he 	came 	up 	from behind 	seats 	when
she 	started the bus's 	engine. 	The 	CUESD buses 	are 	larger and
Simeral 	contends 	it 	was 	easier 	to nap 	in them than 	in 	the much
smaller Madera 	COE buses.
Simeral 	questions whether 	this 	matter was 	as 	important 	and
as much of 	a safety issue as 	the Madera COE asserts. 	If 	it was
that 	important 	to Boyd and Bendz, 	why did Bendz wait 	almost 	a
year to tell 	Ford, 	and then just mention it 	in passing, 	telling
her, 	"Oh, 	by the way, 	I've been meaning to tell you. 	. . . "
Ford's 	Decision 	to 	Recommend 	Simeral's 	Rejection
Ford states 	after her conversation with Bendz, 	she 	re-
evaluated 	Simeral's 	recent 	behavior 	and 	decided 	that 	he 	should be
rejected. 	She went 	to the Madera COE's personnel 	director, 	Dorn,
and recommended 	Simeral's 	rejection during probation. 	Due 	to a
concern 	for her personal 	safety 	she 	asked Dorn 	to 	advise 	Simeral
of this action.
Simeral 	states 	that 	throughout 	his 	Madera 	COE 	employment,
Ford called him at 	home, 	had private meetings on his bus,
arranged to meet 	with him at 	her house 	and held ten hours 	of 	one-
on-one 	in-service 	with him 	in January to 	assist 	him 	in 	renewing
his bus 	license. 	After all 	of 	this 	contact, 	with no 	intervening
threat 	or 	intrusive behavior, 	she now states 	she 	is 	afraid to
meet 	with him alone. 	He 	insists 	the 	only thing 	that 	occurred
15

between her meeting with him on 	February 	10 	in 	the 	dark 	at 	6:15
a.m. 	in the 	"hole" 	and her alleged 	fear of 	him on February 12,
was 	the 	second hand comments 	from Boyd. 	Simeral 	insists 	this
testimony 	is 	illogical 	and 	internally 	inconsistent.
Simeral's 	Termination Meeting 	with 	Porn
Dorn had been given 	Simeral's 	evaluation 	for 	review, 	and
based on it 	alone, 	he 	insists 	he had determined to 	reject 	him in
probation. 	He bases 	this 	decision on the 	fact 	a performance
improvement 	plan was 	deemed necessary after 	almost 	twelve 	full
months 	as 	a probationer. 	He 	insists 	that 	Ford's 	request 	and the
information 	regarding 	Simeral's 	actions 	on Boyd's 	bus 	only
reinforced his 	determination to 	reject 	Simeral. 	The 	next
afternoon, 	February 13, 	1998, 	after the last bus run was
completed, 	Dorn met 	Simeral 	at 	the mountain area bus barn area
and told him his 	employment 	was 	terminated, 	effective 	that 	day.
When 	Simeral 	asked him why he was 	being terminated, 	Dorn
said he 	"could 	see 	no 	reason to advance 	a person to permanency
who had an 	improvement plan." 	Simeral 	questions 	this 	logic. 	He
had been a Madera 	COE 	bus 	driver 	for two 	and one-half 	years.
Granted, 	most 	of 	that 	time he was only a 	substitute, 	but 	it 	still
gave 	Dorn and 	Ford 	sufficient 	time 	to 	determine 	whether 	or not 	he
deserved permanent 	employment 	status. 	He 	does 	not 	believe 	that
after all 	of 	this 	time 	it 	is 	logical 	that 	he would be 	terminated
because 	an 	evaluation 	included a performance 	improvement 	plan.
16

Parental 	Letters 	of 	Support 	for 	Simeral
Entered 	into 	evidence 	were 	sixteen 	letters 	of 	support 	for
Simeral. 	Seven were 	from either parents 	or care providers 	of
students 	transported by Simeral. 	Four were 	from other Madera 	COE
bus 	drivers 	or monitors. 	Two were 	from county professional
educators 	and one 	each was 	from a 	teacher's 	aide 	and a 	local
district 	bus 	driver 	that 	transferred 	students 	to 	and 	from
Simeral's bus. 	The 	letters 	spoke of his dependability,
courteousness 	and 	interest 	in the 	children's welfare.
ISSUE
Did 	the Madera 	COE 	reject 	Simeral 	during his 	probationary
period because 	of 	his 	protected activity, 	in violation of
subdivision 	(a) 	of 	section 3543.5?
CONCLUSIONS 	OF 	LAW
The Board, 	in Carlsbad Unified School 	District 	(1979) 	PERB
Decision No. 	89 	(Carlsbad), 	set forth the following test 	for
alleged violations 	of 	subdivision 	(a) 	of 	section 3543.5 	of 	EERA:
1. 	A single 	test 	shall 	be 	applicable 	in all
instances 	in which violations 	of 	section
3543.5 (a) 	are alleged;
2. 	Where 	the 	charging party establishes
that 	the 	employer's 	conduct 	tends 	to 	or does
result 	in 	some 	harm to 	employee 	rights
granted under the 	EERA, 	a prima 	facie 	case
shall 	be 	deemed to exist;
3. 	Where the harm to the employees' 	rights
is 	slight, 	and the employer offers
justification based 	on 	operational 	necessity,
the 	competing 	interest 	of 	the 	employer 	and
the 	rights of 	the 	employees will 	be balanced
and 	the 	charge 	resolved 	accordingly;
17

4. 	Where 	the 	harm is 	inherently destructive
of 	employee rights, 	the employer's 	conduct
will 	be 	excused only on proof 	that 	it 	was
occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course 	of 	action was 	available;
5. 	Irrespective of 	the 	foregoing, 	a charge
will 	be 	sustained where 	it 	is 	shown that 	the
employer would not 	have 	engaged 	in the
complained-of 	conduct 	but 	for 	an unlawful
motivation, 	purpose or intent. 	[Emphasis
added.]
In Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210 	(Novato), 	the Board clarified the Carlsbad test 	for
retaliation or 	discrimination 	in 	light 	of 	the National 	Labor
Relations Board decision in Wright Line, 	Inc. 	(1980) 	251 NLRB
1083 	[105 LRRM 1169] 	enforced in part 	(1st Cir. 	1981) 	662 	F.2d
899 	[108 	LRRM 2513]. 	In Novato, 	unlawful motive must be proven
in order to 	find a violation. 	In addition, 	a nexus 	or connection
must 	be 	demonstrated between 	the 	employer's 	conduct 	and 	the
exercise 	of 	a protected 	right 	resulting 	in harm or potential 	harm
to that 	right.
In order to establish a prima 	facie 	case, 	the 	charging party
must 	first 	prove 	the 	subject 	employee 	engaged in protected
activity.6 Next 	it 	must 	establish that 	the 	employer had
knowledge 	of 	such protected activity. 	Lastly, 	it 	must 	be proven
6Section 	3543 	grants 	public 	school 	employees:
. 	. 	. 	the right to form, 	join, 	and
participate 	in 	the 	activities 	of 	employee
organizations 	of 	their own 	choosing 	for 	the
purpose 	of 	representation on all 	matters 	of
employer-employee relations. 	. 	. 	.
18

that 	the 	subject 	adverse 	action(s) 	were taken, 	in whole or in
part, 	as 	a result 	of 	such protected activity.
Protected 	Activity
Simeral 	has 	a problem 	in 	establishing protected 	activity.
He 	insists 	his 	protest 	of 	the 	"mandatory" 	insulin 	in-service 	was
protected by the EERA. 	The evidence shows, 	however, 	that 	(1) 	it
was not mandatory, 	(2) 	it was not a product of, 	nor even
sanctioned by the Madera COE, 	and 	(3) 	his 	"protest" 	seemed to
center on his 	personal 	reluctance 	to give 	insulin 	inoculations,
which would 	suggest 	its 	primary 	impetus 	was 	on behalf 	of 	himself
rather than other employees. 	Protesting 	a 	training 	session
created by 	fellow employees 	would not 	fall 	within 	the 	usual
parameters 	of 	"protected activities."
In addition, 	PERB has held, 	in State of California
(Department of Developmental Services) 	(Monsoor) 	(1982) 	PERB
Decision No. 	228-S, 	that 	the 	subject 	action must 	either be on
behalf 	of 	an employee 	organization or a group of 	employees, 	not
just 	the 	complaining party alone, 	to qualify as protected
activity.
In this 	case, 	no allegations were propounded by Simeral 	that
his 	motivation 	in 	complaining 	or protesting 	the 	in-service 	had
anything to do with other bus drivers. 	In fact, 	there was no
evidence 	proffered 	that 	there was 	not 	even one 	other bus 	driver
that 	agreed with 	Simeral's view of 	the 	in-service.
However, 	Simeral's 	complaint 	could 	support 	an argument 	that
his 	action was 	an attempt 	to 	exercise 	his 	right 	to 	represent
19

himself 	individually 	in his 	employment 	relations 	regarding 	a
proposed working 	assignment. 	Under 	these 	circumstances 	it 	would
be 	considered 	activity protected by 	the 	EERA. 	(Pleasant 	Valley
School District 	(1988) 	PERB Decision No. 	708.)
Employer' 	Knowledge of 	the 	Protected Activity
In establishing employer knowledge, 	Simeral 	again has 	a
problem. 	Although there 	is 	no doubt 	Ford knew of 	his protest,
she 	agreed with him that 	there 	should not 	have 	been 	such a
session, 	at 	least not without her approval. 	In addition, 	she
chastised Besharse 	and Ballou 	for 	creating 	it 	and 	then 	telling
Simeral 	he was 	required to 	attend.
Dorn 	seems 	to 	be 	the 	primary decision-maker with 	regard 	to
the 	rejection. 	He 	admitted he 	knew of 	the 	in-service 	conflict,
but 	insists 	he was 	not 	aware 	of 	Simeral's participation 	in it
until 	he 	read this 	case's 	underlying 	charge.
This 	type 	of 	employer-knowledge 	does 	not 	satisfy the
Carlsbad 	requirement 	that 	the 	employer was 	aware 	of 	the 	protected
activity when 	the 	negative 	personnel 	action was 	taken.
Presence 	of 	Unlawful 	Motivation
However, 	even 	if 	Simeral 	was 	able 	to prove he 	engaged 	in
protected activities, 	and that 	the 	employer was 	aware 	of 	such
activity when he was 	terminated, 	the 	result would be 	the 	same.
He would 	lose 	on the merits, 	because 	there 	is 	insufficient
evidence 	to prove 	that 	the Madera 	COE's 	decision to 	reject 	him
during his 	probationary period was motivated 	in whole, 	or 	in
part, 	by his protected activity.
20

Proving 	the 	existence 	of unlawful 	motivation 	can be 	a
difficult 	burden. 	The Board acknowledged this 	when 	it 	stated the
following 	in 	Carlsbad:
Proof 	Of 	Unlawful 	Intent 	Where 	Offered Or
Required
Unlawful motivation, 	purpose or intent 	is
essentially a 	state 	of mind, 	a 	subjective
condition 	generally known 	only 	to 	the 	charged
party. 	Direct 	and affirmative proof 	is 	not
always 	available or possible. 	However,
following 	generally 	accepted 	legal 	principles
the presence 	of 	such unlawful 	motivation,
purpose 	or 	intent 	may be 	established by
inference 	from the 	entire 	record. 	[Fn.
omitted.]
In addition, 	the Board, 	in Novato, 	set 	forth examples of the
types 	of 	circumstances 	to be 	examined 	in a determination of
whether 	improper 	animus 	is 	present 	and a motivating 	factor 	in the
employer's action(s). 	These circumstances are 	(1) 	disparate
treatment of the affected employee(s), 	(2) 	proximity of time
between 	the 	participation 	in protected 	activity 	and 	the 	adverse
action, 	(3) 	inconsistent 	explanations of 	the employer's
action(s), 	(4) 	departure from established procedures or
standards, 	and 	(5) 	inadequate investigation(s). 	(See also
Baldwin Park Unified School 	District 	(1982) 	PERB Decision
No. 	221 	(Baldwin Park).)
Disparate 	Treatment 	of 	Simeral
No 	evidence was proffered regarding 	the 	rejection, 	or 	lack
thereof, 	of 	any other Madera COE probationary employee, 	nor of
any 	similar 	actions 	regarding 	a 	contemporaneous 	bus 	driver 	or
other employee(s). 	In the absence of 	such evidence 	it 	is not
21

possible 	to 	determine 	if 	Simeral 	was 	treated any differently 	than
similarly 	situated 	employees 	who 	did 	not 	engage 	in protected
activities.
Proximity of 	Time
Simeral's 	protected activity occurred on January 	8, 	1998.
He was rejected on February 13, 	1998, 	a bit more 	than five weeks
later. 	If 	the Madera COE was 	as upset 	over his 	objections 	to the
in-service as 	Simeral believes 	it was, 	it 	is reasonable to
believe 	this 	negative 	feeling would 	still 	be 	present 	five 	weeks
later.
It 	is 	therefore 	determined that 	the proximity of 	time
between 	Simeral's 	protected 	activity 	and his 	rejection provides
some 	support 	for an inference 	of unlawful 	motivation. 	However,
it 	has 	been held by the 	Board that 	timing alone 	is 	insufficient
to 	create 	an 	inference 	of 	a nexus 	between protected activity and
negative 	personnel 	actions. 	{Moreland Elementary 	School 	District
(1982) 	PERB Decision No. 	227; 	Charter Oak Unified School District
(1984) 	PERB Decision No. 	404.)
Inconsistent 	Explanations 	for 	the 	Madera 	COE's Actions
The 	Madera 	COE 	cited 	seven 	reasons 	for 	Simeral's 	rejection.
They are: 	(1) 	complaints of Ballou and Besharse; 	(2) 	improper
student 	drop off; 	(3) 	behavior near day care center;
(4) 	unauthorized use of school bus; 	(5) 	uncleanliness of bus;
(6) 	untimely paperwork; 	and 	(7) 	Simeral's uninvited intrusion
into Boyd's bus. 	These 	reasons will 	be 	examined separately.
22

Complaints 	of 	Ballou 	and Besharse
Ballou and Besharse, 	in both their 	testimony and demeanor,
made 	it 	very clear 	that 	they were 	totally opposed 	to 	Simeral.
Their 	enthusiastic 	responses 	with 	regard 	to 	his 	alleged 	failings
and 	their 	selective 	memory with regard 	to 	anything 	at 	all 	that
could be 	of 	benefit 	to him was 	clearly apparent. 	Much of 	their
testimony was very subjective, 	i.e., 	being 	short 	with a 	student,
bus cleanliness, 	improper wheelchair tie-downs, 	negative 	facial
expressions, 	"certain" 	looks 	and observations 	of 	"lust 	in his
eyes." 	A serious 	question arises 	as 	to whether 	the 	Madera 	COE
put 	much 	credence 	into 	such obviously 	slanted views. 	An
investigation 	into 	the 	accuracy of 	such 	complaints 	would
undoubtedly evolve 	into little more 	than a 	"he 	says, 	they say"
conclusion. 	Even
Ford 	discounted 	their 	complaints 	during 	much 	of 	Simeral's
employment. 	The unfortunate aspect 	of this 	type of 	"evidence" 	is
that 	even though it 	was 	not 	given much credence 	initially, 	it 	can
be used to support 	similar, 	but more credible, 	later evidence.
However, 	in and of 	itself, 	due 	to the testimony and demeanor
of 	the two witnesses, 	it 	is 	determined that 	this particular
evidence 	did not 	provide 	credible 	support 	for 	Simeral's
termination. 	Therefore, 	it does give some support 	to an
inference 	of 	improper motivation.
Improper 	Student 	Drop-Off
There 	is 	no doubt 	that 	a 	special 	education pre-school
student 	should not 	be 	dropped off 	at 	her home unless 	it 	is 	quite
23

clear that 	there 	is 	a responsible 	adult present. 	In order to
determine 	the weight 	to be 	given to 	Simeral's 	improper behavior,
it 	would be 	necessary to 	determine 	how often this 	type 	of
circumstance 	occurs 	and what 	the Madera 	COE's 	"usual" 	reaction 	is
when 	it 	does 	happen.
Irrespective 	of 	the weight 	given to the 	incident, 	the Madera
COE 	is 	entitled 	to 	rely on 	it 	to 	support 	its 	action with 	regard
to 	the 	termination. 	The 	incident 	does 	not 	support 	an 	inference
of 	improper motivation.
Behavior Near 	the 	Day Care 	Center
There 	is 	no 	doubt 	that 	this 	behavior was 	improper and could
create problems 	for 	the Madera 	COE. 	Ford's 	investigation was
reasonable 	and 	fair. 	The 	impropriety of 	the 	original 	action was
compounded when 	it 	was 	repeated after a warning.
This 	evidence 	supports 	a 	conclusion 	that 	the Madera 	COE
reasonably relied upon this 	incident 	to 	take 	its 	action with
regard 	to 	the 	termination.
This 	incident 	does 	not 	support 	an 	inference 	of 	improper
motivation.
There 	is, 	however, 	an inconsistency in Ford's 	reactions 	to
the 	two 	incidents. 	When she 	first was 	aware of 	Simeral's
behavior, 	she 	insisted she was 	going 	to 	fire him on 	the 	spot 	and
was 	"in a 	rage." 	The 	second time 	it 	occurred she 	merely changed
his 	route, 	without 	even mentioning it 	to him. 	She 	compounded
this 	laissez 	faire 	attitude 	towards 	his 	behavior by commenting,
in his 	evaluation, 	that 	"Tim took the 	appropriate 	steps 	to
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alleviate 	the 	concern." 	This 	inconsistency calls 	into 	question
Ford's 	credibility with 	regard 	to 	her 	rage 	over 	the 	first
incident. 	However, 	it 	is not 	the 	type of 	inconsistency that
would 	support 	an 	inference 	of 	improper motivation.
Unauthorized 	Personal 	Use 	of 	Bus
When Ford was 	looking 	for 	Simeral, 	after her day care 	center
investigation, 	she was 	admittedly upset. 	Her rage 	over his
behavior 	at 	the 	center may have 	caused her 	to 	overreact 	with
regard to the bus 	incident. 	However, 	she had earlier permitted
him to use 	the 	bus 	for personal 	use 	under 	certain 	specified
conditions. 	He violated those 	conditions 	and must 	be 	held
accountable 	for his 	actions. 	Once 	again the proper weight 	to be
given to 	this 	impropriety is 	in doubt. 	However, 	the Madera COE
is 	entitled to 	rely on a 	clear violation of 	its 	rules 	to 	support
its 	action with regard to 	the 	termination.
This 	incident 	does 	not 	support 	an 	inference 	of 	improper
motivation.
Bus 	Uncleanliness 	and Untimely 	Paperwork
Both of 	these 	items 	are generally 	low 	level 	violations.
Absent 	unusual 	circumstances 	or a 	number of 	reminders 	and/or
warnings, 	they are 	not 	the 	type of 	circumstances 	that 	will 	lend
much support 	to the 	termination of 	an employee. 	However, 	the
Madera COE 	is 	entitled to add these charges 	to other, 	more
serious, 	ones 	to 	support 	its 	action with regard to 	the
termination.
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These 	incidents 	do not 	support 	an 	inference 	of 	improper
motivation.
Simeral's Actions 	in Boyd's 	Bus
Regardless 	of 	whether he 	was 	napping or had 	some 	other
motivation, 	Simeral's 	actions made Boyd uncomfortable. 	Her 	fear
was 	reasonable 	and there was 	no 	justification 	for 	it. 	It
happened more 	than once. 	Simeral 	says 	only twice; 	Boyd 	insists
it 	was 	several 	times. 	The Madera COE 	is 	entitled to rely on this
incident 	to 	support 	its 	action with regard to 	the 	termination.
This 	incident 	does 	not 	support 	an 	inference 	of 	improper
motivation.
Departure 	From Established 	Procedures 	or 	Standards
The 	only 	departure 	from 	established procedures 	or 	standards
cited by 	Simeral 	concerns 	the 	Madera 	COE's 	decision 	to wait 	until
the 	end of 	a year-long probationary period 	to 	reject 	him. 	Dorn's
explanation 	that 	the Madera COE was 	hoping he would 	succeed, 	and
therefore gave him every opportunity to do 	so, 	is 	logical 	and
supported by the 	evidence. 	Most 	of 	the 	incidents 	under
discussion occurred within 	the 	last 	three 	months 	of 	Simeral's
employment. 	These 	incidents 	created an ever-increasing
collection of 	damaging evidence. 	This 	evidence 	reached 	its peak
in early February, 	and when the 	revelation regarding his
uninvited entries 	into Boyd's bus was 	added, 	the 	rejection
decision 	resulted.
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Under these 	circumstances, 	his 	rejection late 	in his
probationary period 	is 	not 	found to be 	a 	departure 	from
established procedures 	or 	standards.
Simeral 	also points 	to 	the 	fact 	that 	he was 	not 	told of 	at
least 	three 	of 	the 	matters 	now being held against 	him. 	They are
(1) 	uncleanliness of his bus, 	(2) 	Untimeliness of paperwork, 	and
(3) 	Boyd's bus intrusions.
Although Ford, 	in replying to a specific question, 	insisted
that 	the 	cleanliness of a driver's bus was 	important, 	it 	is
difficult 	to believe that, 	absent 	repeated warnings, 	it would be
a major reason 	for a driver's 	termination. 	The 	fact 	that 	it 	was
not 	discussed with him is 	understandable.
The 	same 	conclusion must 	be 	drawn 	from the 	paperwork
Untimeliness 	issue. 	There were no specifics discussed, 	but
general 	slowness 	in 	submitted paperwork, 	unless 	it 	was 	in direct
defiance 	of 	repeated reminders 	and warnings, 	would not 	reasonably
be 	a major justification 	for a driver's 	termination. 	The 	fact
that 	this 	was 	not 	discussed with him is 	understandable.
The Boyd bus 	intrusions, 	although very serious, 	were made
known to 	Ford and Dorn no more 	than 	two 	days before 	the
rejection. 	Under these circumstances, 	it 	is understandable that
this 	matter was 	not 	discussed with 	Simeral 	prior 	to 	his
termination.
Therefore, 	the 	evidence with regard to bus uncleanliness,
paperwork Untimeliness 	or 	the 	Boyd bus 	intrusions 	do 	not 	support
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a 	conclusion 	that 	they were 	departures 	from 	established
procedures 	or 	standards.
Inadequate 	Investigation
There 	could 	be 	an 	issue 	regarding 	inadequate 	investigations
in the matter of 	(1) 	the 	complaints 	of 	Ballou and Besharse or
(2) 	Simeral's 	intrusion into Boyd's bus. 	However, 	these matters
were discussed, 	at 	length, 	in the above examination of 	allegedly
inconsistent 	explanations 	of 	the 	employer's 	actions, 	and were
disposed of 	at 	that 	time.
Summary
The 	examination of 	the Novato 	and Baldwin 	Park 	circumstances
lead to 	a 	conclusion 	that 	there 	is 	insufficient 	evidence 	to
support 	an 	inference 	of 	unlawful 	motivation on the part 	of 	the
Madera COE. 	Therefore, 	it 	is determined that 	the Madera COE did
not 	reject 	Simeral 	in his 	probationary period because 	of 	his
protected 	activity.
PROPOSED 	ORDER
Based on the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law
and the 	entire 	record 	in this 	case, 	it 	is 	found that 	the Madera
County Office 	of 	Education did not 	violate 	the 	Educational
Employment Relations Act, 	Government Code section 3543.5(a), 	when
it 	rejected Timothy G. 	Simeral 	during his 	probationary period.
It 	is 	ORDERED that 	all 	aspects 	of 	the 	complaint 	and underlying
unfair practice charge in Case No. 	SA-CE-1858, 	Timothy G. 	Simeral
v. 	Madera 	County Office 	of 	Education, 	are hereby DISMISSED.
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Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions 	with the
Board itself within 20 	days 	of 	service of 	this Decision. 	The
Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th 	Street
Sacramento, 	CA 95814-4174
FAX: 	(916) 	327-7960
In accordance with PERB regulations, 	the 	statement 	of
exceptions 	should 	identify by page 	citation 	or 	exhibit 	number 	the
portions 	of 	the 	record, 	if 	any, 	relied upon for such exceptions.
(Cal. Code Regs., 	tit. 	8, 	sec. 32300.)
A document 	is 	considered 	"filed" 	when actually 	received
before the close of business 	(5 p.m.) 	on the 	last 	day set 	for
filing 	or when mailed by certified or Express 	United 	States 	mail,
as 	shown on the postal 	receipt 	or postmark, 	or delivered to 	a
common carrier promising 	overnight 	delivery, 	as 	shown on the
carrier's 	receipt, 	not 	later than the 	last 	day set 	for 	filing.
(Cal. Code Regs., 	tit. 8, 	sec. 	32135(a); see also Cal. Code
Regs., tit. 	8, 	sec. 32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by
facsimile 	transmission before 	the 	close 	of 	business 	on the 	last
day 	for 	filing 	together with 	a 	Facsimile 	Transmission 	Cover 	Sheet
which meets the requirements of Cal. 	Code Regs., 	tit.8, 	sec.
32135(d), 	provided the 	filing party also places 	the original,
together with 	the 	required number of 	copies 	and proof 	of 	service,
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in the U.S. mail. 	(Cal. Code. Regs., 	tit. 	8, 	secs. 	32135(b), 	(c)
and 	(d); 	see also Cal. Code Regs., 	tit. 	8, 	secs. 	32090 and
32130.)
Any 	statement 	of 	exceptions 	and 	supporting brief 	must 	be
served 	concurrently with 	its 	filing 	upon 	each party 	to 	this
proceeding.' 	Proof 	of 	service 	shall 	accompany each copy 	served on
a party or 	filed with the Board itself. 	(See 	Cal. 	Code Regs.,
tit. 	8, 	secs. 32300, 	32305, 	32140, and 32135 (c).)
Allen R. 	Link
Administrative 	Law 	Judge
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