Trustees of the California State University (PERB 1409H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
VICTORIA LEITHAM,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Case No. LA-CE-529-H
PERB Decision No. 	1409-H
S e p t e m b e r 	2 7 , 	2000
MICHAEL TWITTY,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Case No. LA-CE-531-H
Appearances: 	California State Employees Association by Hubert Lloyd, Representative,
for Victoria Leitham and Michael Twitty; Janette Redd Williams, University Counsel, for
Trustees of the California State University.
Before Dyer, Amador and Baker, Members.
DECISION
DYER, Member: 	These consolidated cases come before the Public
Employment Relations Board (Board) on appeal by Victoria Leitham (Leitham) and
Michael Twitty (Twitty) from an administrative law judge's (ALJ) proposed decision
(attached) dismissing their unfair practice charges. The complaints allege that Leitham
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and Twitty exercised rights guaranteed by the Higher Education Employer-Employee
Relations Act (HEERA)1 by initiating a grievance against the Trustees of the California
State University (CSU). 	The complaints further allege that CSU, because of the filing
of this grievance, took adverse action against Leitham and Twitty by rejecting them
from probation, in violation of section 3571(a).2
The Board has reviewed the entire record in this case, including the original and
amended unfair practice charges, the briefs of the parties, the ALJ's proposed decision,
Leitham and Twitty's exceptions and CSU's response. The Board adopts the proposed
decision, in accordance with the following discussion and modifications.
DISCUSSION
In analyzing the performance evaluation form used to evaluate Leitham and
Twitty in this case, the ALJ made the following observations:
The performance evaluation form consists of rating scales
of one to ten in some 18 categories such as job skills,
amount of work accomplished, quality, planning and
organizing work, initiative, adaptability/flexibility, working
interpersonal relationships, and decision making/problem
1HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2Section 3571 provides, in relevant part:
It is unlawful for the higher education 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 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
	2

solving. Each category contained a scale from zero to ten
suggesting an average of 4.5 for each category, resulting in
a rating of 450 as average for the entire evaluation.
Leitham's overall rating was 666.5.
(Proposed dec, p. 4.)
In footnote 4 of the proposed decision, which immediately follows the above-
quoted paragraph, the ALJ additionally observed:
Sumpter reviews all evaluations in [Academic Computing
Services] ACS. She testified a study she undertook (and
supplemented with respondent exhibit 21) found that the
average performance evaluations rating scores for all other
employees in ACS for June/July 1997, were around 865.
The Board finds that the analysis of the performance evaluation form set forth
below more accurately reflects the evidence received at the formal hearing in this matter,
and, based upon this finding, modifies the proposed decision as follows.
The first complete paragraph on page four of the ALJ's proposed decision is
modified to read:
The performance evaluation form consists of rating scales
in 18 categories, which include job skills, amount of work
accomplished, quality, planning and organizing work,
initiative, adaptability/flexibility, working interpersonal
relationships, and decision making/problem solving. Not
all of the categories apply to every employee. The
employee's evaluation score is based upon a four step
process. In the first step, the manager conducting the
evaluation assigns a weight value for each relevant
category. The weights assigned in the instant case ranged
from 2-10. In the next step the manager determines, on a
scale of 0-10, how the employee rated in that category.
The evaluation form suggests that an average rating score
for each category is 4.5. In the third step, the manager
multiplies the weight value by the rating score. For
example, let us assume that a category was included in the
evaluation, that the weight assigned to the category by the
manager was 10, and that the manager believed the
w
	3

employee had only an average rating score in the category.
These determinations would, hypothetically, result in a
category rating of 45. In the final step, all of the relevant
category ratings are added together to produce the overall
evaluation score. Leitham's overall score, based upon her
evaluation in 13 of the 18 categories, with each category
having been assigned a particular weight by Corey, was
666.5.
Footnote four on page four of the ALJ's proposed decision is modified to read:
Sumpter reviews all evaluations in ACS. She testified that
such ratings are very subjective, and that with a thousand
employees and several managers, similar scores might
mean different things to different managers. 	Sumpter
testified that a study she undertook found that the average
performance evaluations rating scores for all other
employees in ACS for June/July 1997, were around 865.
Corey testified that the scores she gave to each category
was consistent in all of her ACS evaluations.
ORDER
The unfair practice charges and complaints in Case Nos. LA-CE-529-H and
LA-CE-531-H are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members Amador and Baker joined in this Decision.
44

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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VICTORIA 	LEITHAM,
Charging 	Party,
v.
TRUSTEES 	OF 	THE 	CALIFORNIA STATE
UNIVERSITY,
Respondent.
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Unfair 	Practice
Case No. 	LA-CE-529-H
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MICHAEL 	TWITTY,
Charging 	Party,
v.
TRUSTEES 	OF 	THE 	CALIFORNIA 	STATE
UNIVERSITY,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-531-H
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) 	PROPOSED 	DECISION
) 	(9/30/99)
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Appearances: 	California State Employees Association, 	by Hubert
Lloyd, 	Labor Relations Representative, 	for Victoria Leitham and
Michael 	Twitty; 	Janette Redd Williams, 	University Counsel, 	for
Trustees 	of 	the 	California 	State University.
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
Two 	employees 	were 	rejected 	during 	their 	probationary
period. 	They contend the 	rejections 	were 	in retaliation 	for
their having 	filed 	a 	grievance.
These 	cases 	commenced with 	the 	filing 	of 	unfair practice
charges on July 31, 	1998, 	by Victoria Leitham 	(Leitham) 	and on
August 	12, 	1998, 	by Michael Twitty 	(Twitty). 	After
investigation, 	and on November 18, 	1998, 	the general 	counsel of
the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	issued
complaints 	against 	the Trustees 	of 	the 	California 	State

University 	(CSU). 	In Case No. 	LA-CE-52 9-H, 	the complaint 	alleges
that 	on March 	17, 	1998, 	Leitham exercised rights 	guaranteed by
the 	Higher 	Education 	Employer-Employee 	Relations 	Act 	(HEERA)1 by
initiating a grievance 	against 	CSU. 	It 	is 	alleged that 	CSU took
adverse 	action against 	Leitham, 	because 	of 	her 	filing 	the
grievance, 	by rejecting Leitham from probation on May 1, 	1998, 	in
violation of section 3571(a).2
In Case No. 	LA-CE-531-H, 	it 	is alleged that Twitty also
exercised 	rights 	guaranteed by HEERA by 	filing 	a 	grievance 	on
March 17, 	1998. 	It 	is 	further alleged that 	CSU took adverse
action against 	Twitty on May 4, 	1998, 	by rejecting Twitty from
probation.
CSU 	filed 	timely answers 	denying 	any violation 	of 	HEERA.
A settlement 	conference 	did not 	resolve 	the 	dispute. 	Formal
hearing was held on June 	15 	and 16, 	1999, 	in Long Beach,
California. 	At 	hearing, 	the 	complaint was 	amended to 	include 	an
allegation 	that 	CSU unlawfully rejected 	a 	Level 	IV grievance 	on
the 	grounds 	the 	employees 	were 	engaged 	in protected 	activity.
1 Unless otherwise 	indicated, 	all 	statutory references 	are 	to
the 	Government 	Code. 	HEERA is 	codified at 	section 3560 	et 	seq.
2In relevant part, 	section 3571 provides that 	it 	is unlawful
for 	the 	higher education 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
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
22

With the 	filing of post-hearing briefs on August 	16, 	1999, 	the
matter was 	submitted 	for decision.
FINDINGS 	OF 	FACT
CSU 	is 	an employer, 	and Leitham and Twitty were 	employees,
within 	the 	meaning 	of HEERA.
At 	all 	times 	relevant, 	Michael Mahoney 	(Mahoney) 	was
assistant 	vice 	president 	for 	academic 	information 	technology,
including the Academic Computing Services 	(ACS). 	From December
1996, 	until April 30, 	1998, 	Francoise Corey 	(Corey) 	was acting
director of ACS. 	Kelly Sennikoff 	(Sennikoff) 	was 	the office
manager, 	and Linda 	Sumpter 	(Sumpter) 	the 	administrative 	services
officer 	for ACS.
Corey drafted 	and 	secured 	approval 	of 	the 	job 	descriptions
that 	ultimately were 	provided 	for Leitham and 	Twitty. 	She
initially 	selected 	the 	two 	for 	their 	respective 	positions.
Victoria 	Leitham
Leitham was hired by CSU in the ACS 	on June 	11, 	1997, 	in the
Information Technology Consultant 	(Career Level) 	classification.
This 	employment was 	for a probationary period of June 	11, 	1997,
to June 	11, 	1998. 	Leitham has a doctorate 	in instructional
psychology and has 	about 	10 	years 	of 	experience.
Although 	the 	collective 	bargaining 	agreement 	provides 	that
the 	first 	performance 	evaluation of 	a 	probationary employee 	be
provided before 	the 	end of 	three months, 	and a 	second before 	the
33

end of nine months, 	Leitham's 	first 	performance 	evaluation was
given by Corey on January 22, 	1998.3
The 	performance 	evaluation 	form consists 	of 	rating 	scales 	of
one 	to ten in some 	18 	categories 	such as 	job skills, 	amount 	of
work accomplished, 	quality, 	planning and organizing work,
initiative, 	adaptability/flexibility, 	working 	interpersonal
relationships, 	and decision making/problem solving. 	Each
category contained 	a 	scale 	from 	zero 	to 	ten 	suggesting 	an 	average
of 	4.5 	for each 	category, 	resulting 	in a 	rating of 	450 	as 	average
for the 	entire 	evaluation. 	Leitham's 	overall 	rating was 	666.5.4
Despite 	the 	above-average 	numerical 	rating given 	to 	Leitham,
Corey's 	written 	comments 	portrayed a 	lower 	level 	of performance.
That 	is 	borne 	out 	of 	Leitham's 	reaction, 	filing an eight page
rebuttal, 	in response to the evaluation.
Under 	"Job Skills", 	Corey wrote that 	"At 	time, 	Victoria's
lack of 	previous 	work experience 	in academia makes 	it 	difficult
for her 	to grasp 	rationale 	behind procedures 	and work practices."
The score was 	58.5.
3Thus, 	Leitham's 	first 	evaluation should have been around
September 11, 	1997. 	Section 10.4 	of the MOU provides that:
A probationary 	employee 	shall 	be 	evaluated 	at
least 	twice, 	once before 	the 	end of 	the 	first
quarter and once before 	the 	end of 	the 	third
quarter 	of 	the 	probationary period unless 	the
employee 	has 	earlier 	been 	rejected 	during
probation.
4Sumpter reviews 	all 	evaluations 	in ACS. 	She 	testified a
study 	she 	undertook 	(and 	supplemented with 	respondent 	exhibit 	21)
found 	that 	the 	average performance 	evaluations 	rating 	scores 	for
all 	other employees 	in ACS 	for June/July 1997, 	were 	around 	865.
44

Under 	"Amount 	Of Work Accomplished", 	Corey wrote, 	"Victoria
does 	not 	seem to be 	able 	to handle 	several 	tasks 	at 	once which 	is
often needed 	in a very busy unit 	such as ACS". 	Her 	"Quality of
Work" 	was 	listed as very good 	and 	she 	rated Leitham an 	80. 	On
"Planning 	and Organizing Work" 	Corey rated her 	58.5 	and noted
"Victoria's 	ability to plan and organize 	her work 	is 	good but 	is
usually 	limited 	to 	one 	task at 	a 	time when often 	several 	tasks
need to be 	handled 	simultaneously." 	Under 	"Initiative", 	Leitham
was 	rated 	65 	and Corey wrote: 	"Victoria has 	not 	yet 	displayed
the 	level 	of 	initiative 	expected of 	someone 	in her professional
level. 	This 	may be 	due 	to her 	lack of 	familiarity with the
academic 	world."
Corey rated Leitham a 	45 	in 	"Adaptability/Flexibility",
noting, 	"It 	seems 	that Victoria prefers 	to work 	in a 	rather 	set
environment. 	She will 	need to 	learn to 	adjust 	to ACS 	changing
conditions."
Under 	"Working 	Interpersonal 	Relationships", 	Leitham was
rated a 	60, 	and Corey wrote, 	"Victoria needs 	to be willing to
'pitch in' 	and help with the 	team effort 	when needed.[5] She
needs 	also 	to 	assert 	herself 	better with 	the 	team 	in order 	to
become 	a 	team member."
5Leitham worked with Twitty, 	Sue Gautsch 	(Gautsch) 	and
Walter Gajewski 	(Gajewski), 	two other employees in ACS, 	on
training projects.
55

Corey rated 	Leitham 	a 	52 	on 	"Decision Making/Problem
Solving", 	with the notation, 	"A better understanding of 	the
academic 	world 	should help Victoria 	develop 	this 	skill."
While 	rating Leitham only 54 	on 	"Writing 	Skills", 	Corey
commented 	"Victoria 	has 	produced a 	web design 	reference 	manual 	of
very good 	quality."
Under 	"Skill 	in Oral 	Communication", 	Leitham was 	rated a
56 with Corey's comments, 	"Victoria communicates well 	one 	[sic] 	a
one-to-one basis. 	Part 	of 	her responsibilities 	is 	also to
conduct 	full-length workshops. 	However, 	such workshops have not
yet 	been 	implemented by ACS."
Under 	"Working Without 	Close 	Supervision" 	Corey 	rated
Leitham a 	45.5 	and commented, 	"A certain amount 	of 	instructions
has 	to be provided to Victoria before 	she performs 	a 	task. 	I
suspect 	that 	more 	familiarity with 	the 	work and 	the 	working
environment 	will 	take 	care 	of 	this."
Corey rated Leitham a 	45.5 	on 	"Public 	Relations 	skills"
noting 	"Victoria works 	a 	lot 	with 	faculty members 	and 	therefore
must 	represent ACS 	in the 	best 	possible 	way."
Leitham wrote 	an eight-page 	"rebuttal" 	to 	the 	evaluation
suggesting 	several 	of 	Corey's 	comments 	were 	"unfounded,
inaccurate, 	and misrepresent" 	her performance.6
6The 	contents 	of 	the 	rebuttal 	are 	not 	relevant 	to 	this
proceeding. 	The 	evaluation was 	written by Corey at 	a 	time before
any protected activity by Leitham, 	and thus 	any 	inaccuracy could
not 	be 	attributed to unlawful 	motive. 	The 	fact 	that 	Leitham
filed an 	eight 	page 	rebuttal 	is 	probative 	to the 	question of
whether the 	evaluation was 	"above 	average".
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Leitham testified that 	there 	was 	a 	meeting with Mahoney 	a
few days 	after January 22, 	1998. 	She 	said that 	Mahoney said it
was 	"not 	a bad evaluation". 	Mahoney could not 	recall 	what 	he
said at 	the meeting.
Leitham acknowledged at 	the 	hearing 	that 	ACS 	was 	changing
its 	focus 	from one-on-one help 	to 	faculty to group help, 	from
individual 	projects 	to group 	assistance. 	This 	included the
faculty 	integrating 	technology 	(FIT) 	workshops 	that 	were put 	on
by ACS.
In addition to 	the pilot 	workshop 	there were 	three put 	on
that year. 	Leitham, 	Gautsch, 	Twitty, 	Corey and Gajewski
participated.
Leitham's 	next 	evaluation, 	again by Corey, 	covered the
period of 	February 1998 	to May 30, 	1998. 	This 	resulted in an
overall 	rating of 	666. 	Several 	of 	the 	comments 	by Corey reflect
continued 	concern about 	Leitham's 	performance. 	Under general
comments, 	Corey wrote that Leitham:
still 	does 	not 	quite 	understand what 	it 	takes
to work as 	a team member 	in a 	fast-paced
situation 	(Example FIT); 	that 	she cannot
expect 	other staff 	members 	to provide 	her
with all 	the pieces 	of 	a projects 	[sic]
assigned to her 	. 	. 	. 	that she may have to
pitch 	in 	or perform more 	than one 	task 	at 	a
time.
Under 	"Job Skills", 	Corey wrote 	that 	"Victoria 	still 	needs
to better understand the 	role 	of 	service 	and support 	personnel 	in
an academic 	setting." 	Corey ranked Leitham a 	32.5 	in amount 	of
work accomplished. 	Under 	"Planning 	and Organizing" 	work, 	while
giving Leitham a rating of 	58.5, 	Corey wrote:
7

Victoria 	is 	not 	always willing 	to 	take 	on the
more 	mundane 	activities 	associated with 	her
job responsibilities. 	For example: 	she
waited 	for 	someone 	else 	to write 	simple
descriptions 	for 	the 	faculty workshops 	flyer,
as 	a result, 	the 	flyers were 	sent 	late 	and
attendance was 	low.
Under 	"Adaptability/Flexibility", 	Corey rated 	Leitham a
4 9.5, 	commenting:
While 	she 	is 	able 	to 	learn new skills 	such as
software 	applications, 	Victoria has not yet
displayed 	the 	ability to 	adapt 	to 	fast 	paced
and changing working 	conditions. 	This 	was
shown once 	again before 	and on 	the 	first 	day
of 	Spring 	FIT when many 	tasks 	needed 	to 	be
done 	and 	everybody had 	to 	take 	on 	additional
duties. 	At 	the request of her colleagues, 	I
had to 	remind her 	to 	take 	an active 	role 	in
the 	training program. 	This 	issue was 	already
brought 	up 	in Victoria's 	previous
evaluation.[7]
Under 	"Working 	Interpersonal 	Relationships", 	while 	rating
Leitham 60, 	Corey wrote:
Victoria 	works 	effectively on 	a 	one-to-one
basis with faculty. 	However, 	by her
colleagues, 	she 	is 	seen as 	a rather cold and
distant 	person who 	does 	not 	work very well 	as
a 	team member 	and who 	is 	unable 	to 	change 	her
work routine 	to 	accommodate 	the 	needs 	of 	the
team. 	On occasions, 	she works with another
staff member.
Under 	"Working Without 	Close 	Supervision", 	Corey rated
Leitham a 45.5 with the 	comment, 	"In general, 	Victoria needs
7Gajewski 	testified 	that 	he 	did not 	think 	Leitham's
technical 	skills were 	commensurate with her position. 	She 	could
not 	do tasks, 	such as 	capture 	images 	on the 	screen, 	that were
considered 	routine. 	Gautsch did not 	find Leitham competent 	for
the 	position 	she 	held and not 	able 	to work 	in 	the 	fast-paced
environment 	of ACS. 	Leitham told her 	she was 	uncomfortable with
public 	speaking.
8

very 	specific 	instructions 	before 	taking 	on 	a 	particular
project. . . ."
Under 	"Record Keeping Skills", 	Leitham was 	rated a 	14, 	with
the 	comment 	by Corey, 	"Victoria keeps 	good records but 	is 	also
very protective 	of 	them. 	I 	had to 	ask her 	several 	times 	for
records 	I 	needed related to 	faulty workshops."
Finally, 	under 	"Public Relations 	Skills", 	Corey rated
Leitham a 	4 6.5 	with the 	comment, 	"Victoria 	can be very tactful
and helpful, 	especially working on a one-to-one basis. 	She 	can
also 	be 	very abrupt 	with people 	not 	sharing 	her point 	of 	view."
Leitham 	filed a 	six page 	rebuttal 	to 	the 	evaluation.8
On May 1, 	1998, 	Mahoney invited Leitham into Corey's 	office
to discuss 	the performance 	evaluation. 	He 	told her 	it was 	a bad
evaluation. 	He 	then handed her 	the 	letter of 	rejection.
Michael 	Twitty
Twitty was hired on June 27, 	1997, 	as an analyst/programmer.
Early on, 	a disregard 	for work hours 	and protocol 	for
notifying 	the 	office 	of 	his 	absence 	emerged 	in Twitty's 	work
performance.9 On July 28, 	1997, 	Twitty electronically mailed
(e-mail) 	to 	Corey an apology 	for 	arriving 	at 	9:30 	a.m. 	for the
past 	few weeks.
8No 	summary of 	the 	rebuttal 	is provided. 	(See 	fn. 	6.) 	No
evidence 	was 	tendered 	to prove 	Corey knew of 	any protected
activity at 	the 	time 	she wrote 	the 	second evaluation.
9Gajewski, 	a co-worker in ACS, 	once thought Twitty was
falling 	into 	disfavor with Corey 	for his 	tardiness. 	He warned
Twitty along 	those 	lines. 	Gajewski 	did not 	see 	improvement 	in
Twitty's 	conduct.
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On November 24, 	1997, 	Twitty wrote 	to Corey and other
members 	of ACS 	requesting 	that 	he 	would 	"like 	to move 	the Monday
morning meeting 	to 	10:00am. 	9:30 	breaks 	the 	9-10 	hour 	in half,
moving 	it 	later will 	make 	sure we never run over two hours, 	and
it 	will 	coincide with my office 	hours." 	Corey responded that 	she
asked ACS 	staff 	to work between 	7:00 	and 	8:30 	a.m. 	She 	requested
he describe his work hours.
On November 26, 	1997, 	Corey wrote 	to Twitty that 	he had
missed the presentation on November 	25. 	She 	observed 	that 	he
should try to 	schedule his 	doctor 	appointments 	other 	than 	at
staff meeting 	times. 	Further, 	she 	requested that 	he 	tell
Sennikoff 	that 	he was 	leaving the 	office, 	when he 	needed to do
so.
On November 26, 	1997, 	there had been scheduled interviews
from 2:30 	p.m. 	to 	4:30 	p.m. 	for a position of 	equipment
specialist. 	Twitty was 	scheduled to be 	one 	of 	three panelists,
but 	he 	did not 	appear 	for 	the 	interviews. 	Corey wrote 	to him
that 	afternoon 	complaining 	that 	he 	did not 	show up 	for 	the
interviews 	or notify her of 	his 	absence. 	He 	responded 	that 	he
had 	called Sennikoff 	at 	1:15 	p.m. 	to 	advise 	her of 	a 	family
emergency and that 	he might 	miss part 	of 	the 	interviews. 	He
suggested another employee 	take 	his 	place. 	Twitty did not 	know
why Corey did not 	get 	the 	message 	and 	apologized.
On December 13, 	1997, 	Corey wrote to Twitty about his
absence 	from a staff meeting on December 	12, 	1997.
10

On January 22, 	1998, 	Corey gave Twitty his 	first 	evaluation
covering June 	1997 	to January 1998. 	Twitty's 	overall 	score was
662. 	General 	comments were 	that 	several 	criteria were 	difficult
to 	evaluate because, 	until 	then, 	Twitty had helped ACS with tasks
weighted as 	a 	low percentage 	of 	his 	responsibilities. 	Starting
immediately, 	he was 	to 	focus on his main responsibilities,
programming 	instructional 	applications, 	working with 	faculty and
participating 	actively 	in 	training programs. 	She 	further 	stated
that 	starting 	immediately, 	he was 	to 	come 	to work at 	least by
8:30 	a.m. 	and attend all 	meetings. 	Several 	comments 	within the
evaluation 	suggest 	needed 	improvement. 	She 	wrote 	that
documentation 	is 	an essential 	part 	of 	his 	responsibilities 	and
there was 	nothing 	to judge his 	skills; 	he needed to 	take 	a more
active 	role 	in the 	training programs. 	He 	needed to work more
with 	faculty.
Twitty wrote 	a 	rebuttal 	to 	this 	evaluation 	and met 	with
Mahoney to get 	the 	"inaccuracies" 	out.10 He 	said Mahoney told
him 	662 	was 	not 	a bad 	score. 	Mahoney did tell 	him that 	to pass
probation Twitty would have 	to 	improve 	his 	attendance.
The problems with his 	lateness, 	tendency to miss meetings,
or 	informing 	the 	office 	of 	his 	lateness 	or absence persisted
after 	this 	evaluation.
10Twitty testified he 	took 	exception 	to 	the 	comments 	because
"it 	might 	indicate my performance 	was 	below where 	it 	actually
was. "
11

On January 27, 	1998 	(appears to be at 	1:21 a.m.), 	Twitty
e-mailed 	Sennikoff 	that 	he 	was 	going 	to 	be 	half 	an hour 	late 	for
a meeting on Tuesday because 	of medication he 	needed 	to 	take. 	He
stated that 	he 	would 	take 	his 	medicine 	at 	9:00 	a.m. 	"and will
leave 	shortly 	thereafter."
On that 	day, 	Corey wrote 	to Twitty reminding him that 	at
their mid-probationary meeting 	the 	previous 	Thursday 	she 	told him
to 	report 	to 	work between 	7:00 	and 	8:30 	a.m. 	and be 	ready 	for
work by 	9:00 	a.m. 	She 	noted 	that 	she 	had mentioned 	that 	staff
meetings 	for 	the 	semester were 	on Tuesday 	at 	9:00 	to 	11:00 	a.m.
On January 27, 	he 	arrived at 	10:45 	a.m. 	She asserted that 	last
semester 	he 	had missed most 	staff 	meetings 	and 	that 	he 	continued
to 	come 	in around 	10:00 	a.m. 	or 	later. 	This was 	not 	acceptable,
she 	said, 	and he must 	come 	in between 	7:00 	and 	8:30 	a.m.
The 	next 	day he 	responded that 	he 	had been 	advised by his
doctor to 	stay at 	home until 	his 	bronchitis was 	under 	control.
Regarding 	the 	last 	semester, 	he 	contended he missed no more 	than
two 	staff meetings 	because 	of 	illness 	and 	four because 	she 	had
rescheduled the meeting times. 	Initially, 	he 	came 	in at
9:30 	a.m. 	to 	allow him to 	finish up 	on private 	projects 	and 	then
came 	in at 	9:00 	a.m. 	until 	she moved the 	time 	to 	8:30 	a.m. 	Until
his 	recent 	illness, 	he 	said, 	he had been coming 	in at 	8:30 	a.m.
On February 2, 	1998, 	at 	12:28 p.m., 	Twitty e-mailed
Sennikoff 	that 	he was 	sick and was 	going 	to 	stay home.
On February 17, 	1998, 	Twitty wrote Corey at 	2:30 p.m. 	that
he was going 	to be 	at 	his home office 	from 3:00 	p.m. 	onward.
12

On February 23, 	1998, 	Twitty wrote 	Sennikoff 	at 	11:17 	a.m.
that 	he was 	late 	that morning. 	He 	stated he had 	tried to 	call
but 	got 	that 	"annoying 	fast-busy signal 	that 	I 	frequently get".
On Monday March 	9, 	1998, 	Twitty e-mailed Sennikoff 	that 	he
was 	working 	on 	the 	payroll 	system that 	morning 	and 	"since 	my
entire 	day Tuesday 	is going 	to be wasted 	in meetings, 	I'd 	like 	to
get 	as much done on it as possible. 	So 	I 	plan to just 	keep
working on it 	here where 	it's 	quiet."
Corey responded on March 10, 	1998, 	noting that 	if he was not
coining to work because he was 	sick he was 	to 	call 	Sennikoff.
Working 	at 	home was 	not 	an option unless 	approved ahead of 	time.
She 	noted 	the ACS 	staff 	meeting 	that 	day 	started 	at 	9:00 	a.m. 	and
he 	arrived at 	10:10. 	He 	responded the next 	day on the 	later
point 	that 	he 	knew when the meeting 	started, 	but 	was 	delayed by
traffic 	and 	from 9:15 	a.m. 	until 	10:05 	he was 	in 	the parking 	lot
in his 	car waiting 	for a vacant 	parking place.
On March 11, 	1998, 	at 	10:21 a.m., 	Twitty wrote to Sennikoff
telling her he 	was 	not 	feeling well.
On March 17, 	1998, 	Corey wrote to Twitty that 	it was then
10:12 	a.m. 	and 	they had 	just 	ended 	their weekly 	staff 	meeting
without 	him and he 	had not 	called 	Sennikoff 	to 	let 	her 	know he
was 	going 	to be 	absent. 	Twitty responded that 	he 	had called
Sennikoff 	shortly after 	9:00 	a.m. 	when he 	realized he 	was 	not
going to make 	it 	to work. 	He was not 	sure why Corey wouldn't
have 	gotten 	the message.
13

On March 	19, 	1998, 	Twitty e-mailed Corey apologizing 	for not
contacting 	her 	immediately about 	not 	coming 	to work 	the 	prior
day. 	He 	stated he 	had attempted to 	call 	Sennikoff 	but 	got 	the
busy signal, 	made a second attempt, 	and then 	"went 	to bed."
On that 	same 	day he 	responded to 	Corey's 	March 	18 	memo
suggesting 	that 	they wait 	until 	after 	Easter vacation 	to 	conduct
his 	follow-up 	evaluation. 	She 	noted they had a number of
workshops 	coming up 	and 	the 	delay would give 	him more 	time 	for
his projects. 	He agreed.
On March 	19, 	1998, 	at 	7:58 	a.m Twitty wrote 	to Corey that 	he
was 	not 	at 	the 	staff meeting, 	but 	he had called Sennikoff 	at
9:00 	a.m. 	when he 	realized that 	he 	was 	not 	going 	to work. 	He
wasn't 	sure why she 	did not 	get 	the 	message.
Twitty got 	a 	second evaluation 	in the 	Spring. 	Although 	it
was 	not 	introduced 	into evidence, 	Twitty said 	the 	second one 	had
almost 	the 	same 	comments 	as 	the 	first.
The 	Grievance
A grievance was 	filed on March 17, 	1998, 	on behalf of 	four
employees, 	including Twitty and Leitham.2 The 	grievance 	was
predicated upon 	Corey's 	directive 	that 	employees 	commence 	their
workday between 	7:00 	and 	8:30 	a.m. 	This, 	the 	grievance
contended, 	required 	them to work overtime 	for which 	they were
entitled 	to 	overtime 	compensation.
2The 	four were 	Teresa Morrow, 	Stafford Cox, 	Leitham and
Twitty, 	all 	employees 	in ACS. 	Only Leitham and Twitty were
probationary 	employees.
14

On March 24, 	1998, 	a Level 	II grievance meeting was held.
Present 	at 	this meeting were 	three of 	the grievants, 	but 	not
Leitham. 	CSEA representative Hubert 	Lloyd 	(Lloyd), 	Mahoney and
Sumpter were 	also present.
Leitham could not 	testify with 	any certainty, 	that 	Corey was
aware 	of 	the 	grievance. 	Leitham testified on direct-examination,
that 	Corey became 	cool 	and distant 	after 	the 	grievance 	was 	filed.
Yet, 	on cross-examination, 	she 	testified Corey's 	coolness
surfaced 	in January during 	one 	of 	the 	FIT workshops 	and well
before 	any grievance 	was 	filed.
Corey denied that 	she was 	aware 	of 	this particular
grievance. 	It 	is 	concluded that 	charging parties 	failed to
establish 	that 	Corey was 	aware 	of 	the 	grievance 	filed by either
Leitham or 	Twitty when 	she 	wrote 	the 	second 	evaluation 	for 	each
of 	the two employees.
CSU's response to the grievance, 	issued on April 	8, 	1998,
over Mahoney and Sumpter's 	signature, 	denied the grievance 	on the
ground 	that Article 	18.2 	of 	the MOU provided that 	the 	appropriate
administrator would determine 	the 	work 	schedule 	for 	employees.
Article 	18 	provides 	that 	employees 	assigned a 	five 	day workweek,
a day shall normally consist of eight 	(8) 	hours. 	It 	further
contended that 	exempt 	employees do not 	earn overtime, 	either as
case 	or 	compensatory overtime.
Both Leitham and Twitty were notified on May 	1, 	1998, 	that
effective May 15, 	1998, 	they were rejected during their
probationary period. 	The 	notice 	came 	from Mahoney.
15

Mahoney 	testified 	that 	the 	decision 	to 	reject 	the 	two
employees was his alone. 	Based upon the 	evaluations, 	input 	from
others, 	and his own observations, 	he did not 	feel 	the employees
fit 	into ACS. 	A new director was 	coming 	to ACS 	a 	few weeks
following May 	1, 	1998, 	and Mahoney did not 	think the 	remaining
time 	for probationary status 	for the 	two 	employees 	would be
enough 	for 	the 	new director 	to make 	a 	decision 	on 	their
retention.
On May 6, 	1998, 	Twitty applied for a position at CSU, 	Long
Beach, 	in another department 	for which he 	was 	hired.3 At 	the
time 	of 	the 	hearing he was 	still 	employed 	in that 	department.
The 	Grievance 	Rejection
On February 16, 	1999, 	Lloyd 	filed an amended unfair practice
charge 	on behalf 	of both Twitty and Leitham. 	The 	amendment 	set
forth allegations 	of 	CSU's 	Level 	IV rejection of 	their grievances
on 	rejection 	from probation. 	The gist 	of 	the 	amendment 	was 	that
the 	grievance 	was 	rejected 	because 	they had 	filed unfair practice
charges 	against 	CSU. 	As noted, 	at 	the commencement of hearing,
the 	complaint 	was 	amended to 	include 	an 	alleged violation 	of
HEERA by CSU's 	response 	to 	the 	grievance.
30n 	the 	application, 	Twitty explained his 	discharge 	from ACS
as 	follows, 	"I 	was 	rejected during probation with ACS 	following
two 	strenuously 	contested 	and 	unsubstantiated 	bad 	performance
reviews 	from the 	departing 	acting 	director 	in whose 	removal 	I
played a part."
16

ISSUES
The 	issue 	in this 	case 	is whether CSU rejected 	either
Leitham or 	Twitty 	from probation 	in 	retaliation 	for 	having
participated 	in a grievance, 	and thus 	violated HEERA?
CONCLUSIONS 	OF 	LAW
In order 	to prevail 	on a 	retaliatory adverse 	action charge,
the 	charging party must 	establish 	that 	the 	employee 	was 	engaged
in protected activity, 	the 	activities were known to 	the 	employer,
and 	that 	the 	employer 	took 	adverse 	action because 	of 	such
activity. 	(Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210 	(Novato).) 	Unlawful motivation is essential 	to charging
party's 	case. 	In the 	absence of direct 	evidence, 	an inference of
unlawful 	motivation may be drawn from the 	record as 	a whole, 	as
supported by 	circumstantial 	evidence. 	(Carlsbad Unified 	School
District 	(1979) 	PERB Decision No. 	89.) 	From Novato and a number
of 	cases 	following 	it, 	any of 	a host 	of 	circumstances may justify
an 	inference 	of 	unlawful 	motivation on the part 	of 	the 	employer.
Such circumstances 	include: 	the 	timing of 	the 	adverse 	action 	in
relation 	to 	the 	exercise 	of 	the 	protected 	activity 	(North
Sacramento School District 	(1982) 	PERB Decision No. 	264); 	the
employer's 	disparate 	treatment 	of 	the 	employee 	(State 	of
California 	(Department of Transportation) 	(1984) 	PERB Decision
No. 	459-S); 	departure 	from established procedures or standards
(Santa Clara Unified School 	District 	(1979) 	PERB Decision No.
104); 	inconsistent 	or contradictory justification 	for its 	actions
(State of 	California 	(Department 	of 	Parks 	and Recreation) 	(1983)
17

PERB Decision No. 	328-S); 	or employer animosity towards union
activists 	(Cupertino Union Elementary 	School 	District 	(1986) 	PERB
Decision No. 572).
Once an inference 	is made, 	the burden of proof 	shifts 	to the
employer 	to 	establish that 	it 	would have 	taken 	the 	action
complained of, 	regardless 	of 	the 	employee's protected activities.
(Novato; 	Martori 	Brothers Distributors v. 	Agricultural 	Labor
Relations Board 	(1981) 	29 Cal.3d 721 	[175 	Cal.Rptr. 	626].) 	Once
employee misconduct 	is demonstrated, 	the 	employer's 	action,
. 	. 	. 	should not be deemed an unfair labor
practice 	unless 	the 	board determines 	that 	the
employee 	would have 	been 	retained 	"but 	for"
his 	union membership 	or his 	performance 	to
other protected 	activities. 	[Ibid.]
CSEA contends 	an 	inference 	of 	unlawful 	motivation may be
drawn 	from the 	timing of 	the 	adverse 	action 	in relation to 	the
protected activity, 	the 	failure 	of 	CSU to 	follow timelines 	in the
contract, 	and the 	failure 	to recognize 	the purpose 	of 	evaluations
as 	set 	forth 	in the 	contract.
Mahoney took the 	action to 	terminate 	the 	employees 	on May 	1,
1998, 	just 	weeks 	after Leitham and Twitty had 	filed 	the 	grievance
on March 	18, 	1998. 	Mahoney presided over the Level 	II 	grievance
on March 24, 	1998. 	Thus, 	he knew of the grievance, 	and just five
weeks 	after presiding over 	the 	grievance, 	he 	rejected the 	two
employees 	from probationary status. 	Timing points 	to unlawful
motive.
In addition, 	the 	contract 	requires 	CSU to 	render performance
evaluations 	at 	the 	end of 	the 	third month and 	the 	ninth month of
18

probationary 	status. 	CSU 	failed 	to provide 	either Leitham or
Twitty with timely evaluations. 	Leitham's 	was 	due 	around
September 11, 	1997, 	and Twitty's was due around September 27,
1997. 	Yet 	neither was given an evaluation until 	January 21,
1998, 	four months after they were due. 	Failure 	to 	follow the
provisions 	of 	the 	contract 	points 	to unlawful 	motivation.
CSEA 	further 	argues 	that 	CSU's 	conduct 	was 	inconsistent 	with
the 	contractual 	purpose of 	evaluations. 	Article 	10.1 	of 	the
contract 	provides 	that 	the purpose 	of 	the 	evaluation 	is 	to
"recognize 	acceptable 	performance 	and 	to 	improve 	inadequate
performance." 	Here, 	the 	second evaluation was 	rendered at 	the
same 	time 	the employees were 	rejected 	from probation. 	Thus, 	no
helpful 	change 	could have 	been undertaken by the 	employees 	to
improve 	their performance. 	Again, 	failure 	to 	follow the 	terms of
the 	contract 	points 	to unlawful 	motivation.
CSEA further argues 	that 	at 	the meetings 	following 	the 	first
evaluation, 	there was no 	indication performance was 	sub par.
CSEA argues 	that 	Twitty's 	evaluation was 	above 	average 	in
every category, 	suggesting 	there 	would be 	no problem with making
probation. 	Mahoney told Leitham her 	evaluation was 	not 	a 	bad
evaluation, 	but 	later, 	after her rejection, 	he told her it was
because 	of 	the bad evaluation. 	In fact, 	the 	second evaluation
was 	not 	much different 	from the 	first 	evaluation. 	Further, 	CSEA
argues 	that 	the 	ratings 	for both employees 	were 	numerically above
average, 	and that 	management's perception that 	these were 	in
19

reality 	average 	evaluations 	could not 	have 	been understood by 	the
probationary 	employees.
Mahoney 	labeled evaluations 	in 	the 	660 	range 	as 	"not 	bad",
while discussing the 	first 	evaluations with the 	employees. 	Yet,
based upon 	similar 	ratings 	in the 	second evaluation, 	Mahoney
rejected the 	employees 	from probation. 	These 	are 	rather
inconsistent 	statements 	on a key 	issue. 	Mahoney's 	inconsistent
statement 	regarding 	similar 	evaluations 	give 	rise 	to 	an 	inference
of 	unlawful 	motivation.
The burden now shifts 	to 	CSU to 	establish that 	it 	would have
rejected both Leitham and Twitty, 	despite 	the 	filing of 	the
grievance.
I 	believe 	that 	CSU has met 	its burden.
In both 	instances, 	the 	evaluation reflected concerns 	Corey
had with their performances. 	Leitham's 	evaluation 	reflected 	a
passive 	nature 	and 	reluctance 	to 	lead. 	Twitty's 	evaluation
reflected a preference 	for 	technical 	work 	and not 	presentation,
plus 	a 	care-free 	approach to his 	arrival 	time 	at 	work and
meetings. 	These 	factors 	were 	expressed by CSU to 	the 	employees
before 	either 	Leitham or 	Twitty participated 	in 	the 	grievance.
As 	evidenced by their rebuttal 	statements, 	they were 	aware 	of
their 	deficiencies 	in performance 	as 	seen by Corey.
In addition, 	although the numerical 	rating of 	the
performance 	evaluations 	suggested above 	average 	ratings, 	both
Leitham and Twitty took 	strong umbrage 	at 	the 	comments 	and
responded with 	rebuttals 	and protested 	to 	Corey's 	supervisor,
20

Mahoney. 	Their actions 	in submitting 	the 	rebuttals 	were
inconsistent 	with, 	and undercut 	their 	contentions 	that 	the
evaluations 	reflected 	above 	average 	performance.
Significantly, 	the 	second evaluations, 	by Corey, 	showed no
improvement, 	the 	scores were generally the 	same 	as 	the 	scores
achieved prior to the 	filing of 	the grievance. 	It 	was 	not
established 	that 	Corey had any knowledge 	of 	the 	March 	17
grievance, 	or 	that 	Lithium and Twitty were participants 	in that
grievance.
The 	department 	scores 	on performance 	evaluations 	for 	other
employees 	were 	on 	the 	average 	significantly higher.4 The ACS
evaluations 	were 	otherwise at 	an average of 	865, 	considerably
higher than the 	665 	the two employees 	received. 	In addition, 	as
Corey testified, 	a probationary employee 	should 	reflect 	higher
than 	average 	scores 	to 	demonstrate 	ability 	to perform the 	job
tasks.
Most 	importantly, 	the performance 	evaluations 	rendered by
Corey 	could not 	have 	been based upon protected 	activity. 	The
first 	evaluations 	Leitham 	and 	Twitty 	received were 	well 	before
they participated 	in 	filing 	the 	grievance. 	They did not
4It 	is 	not 	certain 	that 	those 	scores 	would be 	relevant 	to
Leitham and Twitty to 	the 	extent 	that 	other 	evaluations 	might
include permanent 	employees. 	However, 	Gautsch was 	a probationary
employee 	and her evaluations were 	in the high 700 	to 	800. 	CSEA
takes 	exception to Gautsch's 	recall 	on her own 	rating 	in 	an
effort 	to place her 	score 	closer to Leitham's 	and Twitty's. 	I
reject 	that 	approach 	and 	find 	that 	her 	testimony 	corroborates
Sumpter's 	findings 	that 	other employees 	evaluation ratings 	in the
department 	were 	significantly higher 	than 	theirs.
21

establish that 	she 	knew of 	the 	grievance 	when 	she 	rendered 	the
second set 	of 	evaluations.
In addition, 	the 	observations 	of 	Mahoney and Corey that 	both
Leitham and Twitty were 	less 	than 	team players 	and 	seemingly 	ill-
suited 	for 	the 	academic 	expectations 	of 	staff 	support 	for 	CSU
faculty was 	corroborated by Gajewski 	and Gautsch, 	both employees
of ACS 	and with no 	interest 	in the outcome 	of 	this 	case.
Well 	before 	the 	filing of 	the grievance, 	both employees were
notified of 	improvements 	that 	were 	needed. 	Twitty was
specifically 	told that 	his 	attendance 	was 	a problem and 	that 	he
needed to 	improve 	the 	issue 	to make 	probation. 	The 	evidence
shows 	that 	he 	continued to have 	such a problem.
The 	concerns 	that 	Corey had before 	the 	grievance 	was 	filed
continued after the 	filing of 	the grievance. 	As 	noted, 	these
concerns 	were 	reiterated 	without 	establishing 	that 	Corey 	even
knew of 	the grievance.
In addition, 	Mahoney credibly testified that 	these 	employees
did not 	seem appropriate 	for the 	unit. 	Given ACS's 	efforts 	to
provide 	group 	training, 	which necessitated overt 	presentation
abilities, 	it was his decision not 	to delay the 	rejection and
place 	such 	responsibility 	in the 	new director's 	hands.
For 	these 	reasons, 	it 	is 	concluded that 	CSU would have
rejected 	both 	Leitham 	and Twitty 	from probation 	even 	if 	they had
not 	filed the grievance. 	Thus, 	their rejections 	from probation
were not 	in retaliation for the grievance 	filing, 	and were not 	in
violation of 	HEERA.
22

The Amendment 	to 	the 	Complaint
The 	complaint 	was 	amended 	on 	the 	first 	day of 	the 	hearing
to 	include 	an 	allegation 	that 	the 	CSU unlawfully 	rejected 	the
Level 	IV grievance. 	No 	evidence 	regarding 	the 	circumstances 	of
that 	Level 	IV grievance was presented at 	the hearing, 	however.
Therefore, 	no 	findings 	can be made 	to ascertain the 	events
surrounding 	the 	allegation. 	That 	portion of 	the 	complaint 	must
be 	dismissed. 	Based upon the 	conclusions 	reached herein, 	the
complaints 	and underlying 	charges 	should 	be 	dismissed.
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and the 	entire 	record in this matter, 	it 	is 	ordered that 	the
complaints 	in Case No. 	LA-CE-529-H, 	Victoria Leitham v. 	Trustees
of 	the California State University, 	and Case No. 	LA-CE-531-H,
Michael 	Twitty v. 	Trustees 	of 	the 	California 	State University,
and 	the 	underlying 	unfair practice 	charges 	are 	hereby Dismissed.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions 	with the
Board 	itself within 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
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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,
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(0)*)
Gary M. G a l l e r y
Administrative Law Judge
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