Coast Community College District (PERB 1560E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ERNEST W. MAURER,
Charging Party, Case No. LA-CE-4309-E

Vv. PERB Decision No. 1560

COAST COMMUNITY COLLEGE DISTRICT, December 5, 2003

Respondent.

Appearance: Ray, Robinson, Carle & Davies P.L.L. by Sandra M. Kelly, Attorney, for
Ernest W. Maurer; Rutan & Tucker by David C. Larsen, Attorney, for Coast Community
College District.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by Ernest W. Maurer (Maurer) to a proposed decision (attached)
of an administrative law judge (ALJ). The unfair practice charge alleged that the Coast

Community College District (District) violated section 3543.5(a) of the Educational

Employment Relations Act (EERA) | by retaliating against Maurer for the exercise of protected

‘EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

EERA section 3543.5(a) states, in 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 employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.

activity. The ALJ found that Maurer established a prima facie case of retaliation. However,
the ALJ found that the District met its burden to establish that it would have taken the actions
complained of even in the absence of any protected activity. As the District established its
affirmative defense, the ALJ dismissed the charge.
After reviewing the record in this case, including the ALJ's proposed decision,
Maurer's exceptions and the District's response, 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, subject to the discussion below.
DISCUSSION
Neither party has filed exceptions to the ALJ's finding that the District's imposition of
an administrative leave and Notice of Unprofessional Conduct on Maurer were motivated, at
least in part, by unlawful animus. Maurer excepts to the portion of the proposed decision
finding that the District would have imposed the administrative leave and Notice of
Unprofessional Conduct on him even in the absence of protected activity. Specifically, the
ALJ found that Maurer's repeated refusal to comply with the chain of command, his inability
to accept supervision, and his unwillingness to peacefully coexist with his fellow employees
constituted the primary motivation for the District's actions.
Although Maurer excepts to this finding, he has failed to identify any error of fact or
law by the ALJ." Instead, Maurer's exceptions focus almost exclusively on the fact that the
District was partially motivated by animus, a point not in contention. What is in contention is
whether the District would have taken the adverse actions even in the absence of Maurer's
protected activity. The record contains numerous examples of Maurer's confrontational
"With one exception, Maurer has failed to identify any portion of the record to support
his contentions. (PERB Reg. 32300(a)(3).)
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attitude towards his superiors completely separate and apart from any protected activity. In
light of this record, Maurer's exceptions must be rejected.
ORDER
The unfair practice charge and complaint in Case No. LA-CE-4309-E is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
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:

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ERNEST W. MAURER, Ph.D.,
Charging Party,
v .
COAST COMMUNITY COLLEGE DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4309-E
PROPOSED DECISION
(1/7/03)
Appearances: Ray, Robinson, Carle & Davies P.L.L. by Sandra M. Kelly, Attorney, for
Ernest W. Maurer, Ph.D.; Rutan and Tucker by David C. Larsen, Attorney, for Coast
Community College District.
Before Allen R. Link, Administrative Law Judge.
PROCEDURAL HISTORY
On June 20, 2001, Ernest W. Maurer, Ph.D. (Maurer), filed an unfair practice charge
with the Public Employment Relations Board (PERB or Board) against the Coast Community
College District (District). The charge alleged violations of the Educational Employment
Relations Act (EERA or Act).' On September 24, 2001, the General Counsel of PERB, after
an investigation of the charge, issued a complaint alleging violations of subdivision (a) of
section 3543.5.
All section references, unless otherwise noted, are to the Government Code. The
EERA is codified commencing with section 3540.
2 Subdivision (a) of section 3543.5 states that 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 employees because
of their exercise of rights guaranteed by this chapter. . . .

On October 12, 2001, the District filed its answer to the complaint. The answer denied
all material allegations and propounded various affirmative defenses. On November 14, 2001,
an informal conference was held in an unsuccessful attempt to arrive at a mutually agreeable
solution. On March 6, 7, and 8; April 23, 24, and 25; and June 17 and 18, 2002, a formal
hearing was held before the undersigned. With the filing of the briefs by each side, the matter
was submitted on September 18, 2002.
INTRODUCTION
Charging party alleges that due to his protected activities he was placed on
administrative leave, involuntarily transferred from the Aviation and Space Department to the
Mathematics Department, and given a Notice of Unprofessional Conduct. The District denies
the charge, insisting that its actions were prompted by Maurer's inability to cooperate with
instructors and administrators, and not by his protected activities.
FINDINGS OF FACT
Jurisdiction
The parties stipulated and it is therefore found, that Maurer is a public school employee
and the District is a public school employer, within the meaning of the Act.
Background
The District is located in Orange County and includes three separate colleges. Full-
time faculty members are represented by the California Federation of Teachers AFL-CIO, an
affiliate of the American Federation of Teachers (Federation ). There is a collective bargaining
agreement (CBA) in effect between the District and the Federation that covers the faculty. The
largest of the three colleges is Orange Coast College (OCC), Maurer's employment location.
OCC's student enrollment is almost 28,000, with 350 full-time faculty, 450 part-time faculty,
and approximately 150 classified staff employees. There are ten academic divisions within the
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college, each presided over by a dean. Each division includes six to ten departments. The
deans are assisted by Instructional Unit Assistants (IUAs) or department chairs, each of whom
supervise one to three departments.
Maurer was originally employed in 1977 in an academic position at Golden West
College, another District college. He transferred to OCC in 1979 and, in 1984, became Dean
of its Technology Division, which includes the Aviation and Space Department. He remained
in that position for approximately eleven years, where he supervised 12 or 13 departments with
100 to 150 employees.
When he was the Dean of Technology, Maurer had numerous conflicts with four
faculty members in the Construction Department. Some of these conflicts had to do with the
new Technology building, a project with which Maurer was intimately involved. He believed
that the Construction Department faculty were not sufficiently involved in the plans for this
building. Another area of conflict was the Construction Department's faculty class schedules.
These faculty members filed a number of grievances over various actions Maurer took
regarding their schedules. The grievances were ultimately resolved in favor of Maurer's
position, as OCC's procedures state that the division dean has the final authority with regard to
scheduling.
On February 21, 1995, Maurer's attorney, on his behalf and with his approval, wrote an
eleven-page letter to the president of the Federation. The letter complained of an alleged three-
year conspiracy by specified faculty members of the Technology Division to undermine
Maurer's role as dean. The letter accused the teaching staff, with the cooperation of the
Federation, of (1) acting in a criminally conspiratorial manner, (2) filing a false police report
against Maurer, (3) malicious prosecution, (4) manufacturing confrontations, (5) recruiting
students to impugn his relationship with other students and faculty, (6) describing Maurer in
3

negative terms when speaking privately with District administrators and members of the Board
of Trustees, thereby denying him an opportunity to rebut their charges, (7) arriving at meetings
with tape-recorders and video cameras, (8) "using Gestapo like tactics", (9) accusing him of
scheduling classes in such a manner as to "purposely see them fail" by their inability to attain
sufficient enrollment, and (10) describing Maurer as using a systematic and calculated method
of passive-aggressive mismanagement.
Maurer's letter directed the Federation to (1) admit its wrongdoing, (2) retract its
February 13, 1995, police complaint, (3) withdraw two specified grievances, and (4) tender
$225,000 to him.
Later that same year the management of the Construction Department was transferred
out of Maurer's control. At the time Maurer believed this transfer was an inappropriate way to
solve what was primarily a clash of personalities. When the dispute became widely known, a
petition of support for Maurer was signed by approximately 95 per cent of the employees in the
Technology Division. Shortly thereafter, the department was returned to his control.
On February 27, 1995, three Construction Department faculty members sued the
District and Maurer in Superior Court for various personnel-related matters. An answer to the
plaintiff's petition was due on March 24, 1995. On March 7, Maurer's attorney wrote to
Dr. John Renley (Renley), the District's Vice-Chancellor for Human Resources, asking for
"assurances that the District pursue the maximum disciplinary procedures and/or sanctions"
against both the Federation and the involved employees. The letter goes on to recommend that
the District file a cross-complaint for "libel, slander, malicious prosecution and abuse of
process." There was no evidence proffered at the formal hearing that Renley responded to the
letter or took any of the requested actions.
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On August 2, 1995, Maurer was removed from his position as Dean of Technology and
given an assignment as the Administrative Dean of Career /Vocational Education. At the time,
Maurer accused Chris O'Hearn (O'Hearn), OCC's Vice President of Instruction, of telling him
that he "no longer needed me as Dean of Technology" and he was "fed up with the hassles
with the Union and could not deal with them any longer."
On September 26, 1995, Maurer's attorney wrote to Dr. William Vega (Vega), District
Chancellor. In this letter she decried the District's reassignment of Maurer, stating that it
'provided a clear and improper message that his superiors were more concerned with
Federation complaints and lawsuits than competent leadership."
On November 15, 1995, OCC President David A. Grant (Grant) wrote Maurer. The
letter, in its entirety, is as follows:
Ernie, you have been directed not to interfere in the teaching of
Aviation 130 on Monday and Wednesday evenings. You make it
very difficult to defend you when you do not follow specific
directions.
Do not attend that class; do not interfere with the instructor. If
those directions are not clear to you, you should contact me.
In December 1995, Maurer was again reassigned; this time to a faculty position. When
he asked for the reasons he was transferred, Renley responded with the following letter:
You have requested a statement of reasons for your transfer from
Dean of Vocational Education to a faculty position. As you are
aware, a dean is an important administrative position which
requires smooth and positive working relationships with
management and non-management staff members. Among other
things, a dean must reduce, resolve and prevent conflict, develop
and maintain good morale, and communicate effectively with
members of upper level administration. Deans are important
members of the management team, and the Dean of Vocational
Education in particular must interface in a positive manner with
the Vice President of Instruction for the College.
It was the conclusion of the Vice President of Instruction and the
President of the College that your management style and methods
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of interrelating with them and others did not produce a positive
and effectively functioning team. Therefore, as indicated in my
previous correspondence to you, you were reassigned to a faculty
position "without cause" in the best interests of effective
management and the needs of the District in accordance with
paragraph 13 of the agreement signed by you on May 2, 1995.
On December 22, 1995, Maurer's attorney sent a letter to David Mertes (Mertes),
Chancellor of California's Community College system, requesting a Title 5 investigation of the
District. The letter also asked that "a suspension be placed upon filling of the position of OCC
Dean of Technology and OCC President until the investigation is complete." Maurer
complained that various members of the OCC presidential selection committee failed to recuse
themselves from evaluating his application, thereby precluding an objective evaluation of his
written application for that position. There was no evidence submitted with regard to what
action Mertes took, if any, in response to Maurer's request.
Maurer's attorney's letter went on to allege (1) improprieties in his involuntary transfer,
(2) that improper and false communications were disseminated concerning him, (3) the District
published false documents and denied him a scheduled evaluation, (4) that his due process
rights had been denied, (5) the District failed to permit public testimony prior to his
reassignment to a faculty position, (6) he was retaliated against due to his pursuit of his due
process rights, and (7) that the governing board refused to give him written reasons for his
transfer, as required by law.
On June 10, 1996, Maurer's attorney sent a claim to the District in the amount of
$2,075,589 for breach of contract, unlawful transfer and demotion, harassment, denial of due
process, retaliation and reduction of income.
In December 1996 Maurer filed a Complaint of Discrimination with the Department of
Fair Employment and Housing, alleging his demotion from Dean of Technology was because
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of my participation and involvement in a pending discrimination
investigation which I am going to file with the Department of
Fair Employment and Housing and pursue through court
litigation.
In January 1997, the District and Maurer entered into a settlement agreement regarding
the above-described claim in which Maurer received $22,249 for accrued vacation pay and
$14,000 "for the purpose of enabling him to pursue retraining options." Maurer contends that,
as a part of this settlement agreement, the District told his attorney that it agreed not to transfer
him out of OCC's Aviation and Space Department.
An examination of that document reveals no such provision. To the contrary, the
document contains a provision stating that
. . . no party is relying upon any representations or promises of
the other except as expressly set forth herein.
After a hiatus for personal leave and updated training, Maurer returned to a full-time
teaching assignment at the start of the fall semester, 1996, in the Aviation and Space
Department. After an interim deanship of Dan Casey, Robert Mendoza (Mendoza) was
selected to be the Technology Division's dean. Mendoza had no experience in either space or
aviation, but did have substantial background in vocational education, which is the division's
primary mission. Mendoza was assisted in his duties in the Aviation and Space Department by
its IUA, William Padden (Padden), who was initially hired as a part-time classified flight
simulator clerk/technician by Maurer in 1987. The department IUA's responsibilities include
schedule development, program review, advisory committee development, budgeting, and
acting as a communication conduit between the department faculty and the division dean.
Maurer's Protected Activities
The complaint in this case lists three separate instances of protected activities that
Maurer alleges were the reasons for the negative personnel actions taken against him. These
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three instances are (1) various complaints from January 2000 to May 2001 about working
conditions, (2) a PERB charge filed against the District on May 24, 2000, and (3) May 25,
2000, and April 5, 2001, grievances.
Initial PERB Charge
On May 24, 2000, Maurer filed an unfair practice charge with PERB alleging, inter alia,
that the District's retaliatory behavior was
directly related to the litigation pursed by him against the District
when he was demoted from an administrative position as Dean of
Technology to a classroom assignment. . . .
A PERB agent issued a warning letter stating that unless the charge was amended to
cure various legal deficiencies, it would be dismissed. Although Maurer submitted additional
information on September 25, 2000 the charge was dismissed. The dismissal was not
appealed.
Robert Dees (Dees) and Margaret Gratton (Gratton), OCC's Vice President of
Instruction' and President", respectively, were the parties responsible for Maurer's transfer and
approval of his subsequent Notice of Unprofessional Conduct. Neither of them were directly
involved in responding to the unfair practice charge, although they were aware of the charge
having been filed. Renley was both aware of the charge and instrumental in the District's
response, but insisted that this activity played no role in his decisions to place Maurer on
administrative leave, serve him with a Notice of Unprofessional Conduct, or involuntarily
transfer him.
Dees became the Vice President of Instruction in the fall of 1998.
4 Gratton was scheduled to retire during the summer of 2001.
8

Grievance of May 25. 2000
The District's grievance process originates with the grievant's immediate supervisor. It
then goes through a college grievance officer, and the District headquarters before going to
advisory arbitration. The college grievance officer was Don Ackley (Ackley). Neither Dees
nor Gratton were directly involved in the resolution of any of Maurer's grievances.
Many of Maurer's grievances involved, inter alia, his complaints about not receiving
his requested class schedule(s). None of the grievances were taken to the advisory arbitration
level of the grievance procedure by the Federation.
The subject matter of Maurer's May 25, 2000, grievance was included in his May 24,
2000, PERB charge. The grievance complained of scheduling decisions and communications
between Maurer and Mendoza. Maurer's requested remedies were that he be awarded (1) the
relief requested in prior defaulted grievances", (2) a rescheduling of his classes, and (3) the
rescission of two "reprimand letters dated May 19 and May 22, 2000." In addition, he
requested that the administrative functions of the department be reassigned from the control of
Mendoza to "a 'neutral' administrator."
It is apparent, from both the documentation and his testimony, that Maurer believes he
has a right to his requested grievance remedy if the District administrator fails to respond
within the time set forth in the third step of the grievance procedure. He buttresses this
argument by stating that Dees called him on January 31, 2000, and left a message admitting
that the District defaulted on one of his grievances and stating that, therefore, he (Maurer)
would be awarded his requested remedies. Dees initially denied making such a phone call.
Dees was contacted by Maurer at one point with respect to a grievance in which the
District's response was allegedly untimely. Dees attempted to assist the process by contacting
Renley's office. Renley and Dees met in an effort to chart out exactly what grievances were
pending, but Dees was not involved in any of their resolutions.
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However, a recording of this phone message was played at the formal hearing.
Although the message was not unequivocal, Dees said:
. . . But it looks as though you're right, he [Renley] didn't answer
anything, so it's yours by default.. . .
Once he heard the recording, Dees was reminded of the call. However, he said he did
not intend to guarantee that Maurer would receive his requested remedies. He believes that
Maurer knows, from his prior experience as a dean, that Dees' word is not final on such
matters. Under the District's procedures Renley is the person in charge of grievances, and
everyone else merely speculates about what his ultimate decision will be.
An examination of the CBA shows that, at the first two levels of the grievance
procedure, a failure of the administrator to respond merely entitles the grievant to proceed to
the next level. With regard to the third level, the CBA states that the District's failure to
provide a response within the proper time, "will result in award of the remedy sought by the
Federation." (Emphasis added.) Based on this language, Maurer is not entitled to be awarded
his requested remedy since he is not the Federation. Renley's unrebutted testimony showed
that his relationship with the Federation permitted each side to periodically request and
routinely receive an extension or tolling of the procedure's time lines.
There is nothing in the CBA, or any other District policy, that gives an instructor a right
to demand either a specific supervisor or schedule.
Grievance of April 5, 2001
This grievance complained of Mendoza's alleged deficiency regarding (1) scheduling,
(2) the advisory committee, (3) program review, and (4) his failure to appoint Maurer as the
departmental IUA. These issues, according to information supplied by Maurer on the first
Maurer's use of the term "defaulted grievance" refers to a grievance that received no
response within the time frame required by the CBA.
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page of his grievance form, were discussed in an informal conference with Mendoza on
February 15, 2001, or more than 45 days prior to the filing of the grievance. The CBA requires
that grievances be filed within 20 days after the facts become known to the grievant.
Maurer's grievance contained the following requested remedies: (1) the "assignment of
a 'neutral' administrator (Kevin Bellinger['])" to assume supervision of the Aviation and Space
Department, (2) the assignment of the class schedule he originally requested, and (3) a
specified allocation of training funds. These remedies are not within the jurisdiction of the
grievance procedure.
The grievance was denied, due to untimeliness, at all three levels. The Federation
declined to appeal it to advisory arbitration.
Areas of Conflict
Intra-departmental
Class Scheduling
Under the CBA, OCC's individual professors/instructors have the right to submit a
requested class schedule. The college is ultimately responsible for the overall student class
schedules, but it has a contractual obligation to not arbitrarily disregard the individual faculty
members' preferences.
According to Maurer, prior to Mendoza's becoming the technology dean, the aviation
and space instructors, both full-time and adjuncts, would meet and collectively develop the
next semester's class schedule. This schedule would be forwarded to whomever was IUA or
dean. S/he would rubber stamp it and it would become operative the following semester.
Under this system, Maurer believes that when he was dean he changed no more than 2 percent
of the schedules submitted to him by the various departments. Once Mendoza became the
Kevin Ballinger is OCC's Dean of Career Education.
11

dean, scheduling in the department became considerably more complicated, with little or no
real authority vested in the faculty. Maurer contends that the other departments in the division
and in the college are still following the historical process described above.
Maurer, Padden, and Mendoza had a series of conflicts over which classes each of the
instructors should be assigned. Maurer's relationship with Padden was adversarial. He would
often bypass Padden by sending his proposed class schedule directly to Mendoza. Maurer
stated that he initially (three of the first four semesters after he returned to a teaching position)
sent his requested schedules to Padden, who would not provide sufficient information to enable
him to develop a department-wide comprehensive schedule. Padden insisted that Maurer, who
has no responsibility for a department-wide schedule, never sent him (Padden) his requested
class schedules.
After his relationship with Mendoza deteriorated, Maurer routinely sent his requested
class schedules to Dees, Mendoza's immediate supervisor. In addition to his own, Maurer
often submitted a proposed schedule for all of the other instructors in the department, as well
as one for the IUA, Padden. Maurer explained this action by stating that the other instructors
knew what schedules were necessary for the students, but they were reluctant to battle
Mendoza and Padden over the issue. Dees told Maurer to stop submitting proposed schedules
for all of the department's faculty and to stop sending his schedules to him (Dees) instead of
Padden or Mendoza. Maurer listened, but continued to send Dees the comprehensive
schedules.
After each of Maurer's submissions, Mendoza, Padden, and Maurer would
unsuccessfully attempt to develop a compromise and/or comprehensive department class
schedule. At one point Mendoza suggested alternating requested courses between the two
instructors. Maurer rejected this approach, citing, inter alia, Padden's alleged failure to
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maintain current Federal Aviation Agency (FAA) certifications and his own updating of
curriculum and modern delivery techniques. Eventually, Mendoza would unilaterally impose
and disseminate a class schedule.
These problems occurred continuously from the time Maurer returned to a teaching
assignment in 1996 to the time he was transferred out of the department. Much of this activity
preceded January 1999, the date of Maurer's first formal grievance and May 2000, the date of
his first PERB charge.
A typical scenario would play out each semester. Maurer would submit his proposed
schedule. He would get some, but not all of his requests and according to Maurer, even those
he got were either at the wrong time or in the wrong classroom. In addition, some of his
classes would be cancelled due to low enrollment. He would then be placed back in the
scheduling mix in an attempt to create a full-time load by taking over classes that had
tentatively been assigned to adjunct instructors. As a full-time instructor, he had a right to
such reassignments, but the issue of which classes he would receive and in what classrooms
they would be taught, created additional conflict between him, Padden, and Mendoza. Maurer
would then file grievances over the resulting schedules, but they were routinely denied at the
primary levels and eventually not taken to arbitration by the Federation.
Padden retired in January 2001 for two reasons: (1) a golden handshake was offered to
all employees; and (2) the hostile environment created by Maurer after he came back to the
department as an instructor.
Maurer contends that one of the problems in developing a departmental schedule was
that Padden was either unable or disinclined to teach any of the advanced courses for
commercial aircraft, the turbo class, because he was not rated in jets. According to Maurer, all
Padden wanted to teach was his private ground school class and a couple of other classes.
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Maurer believes the department's scheduling problem arose when Padden would not
create a schedule that permitted Maurer to teach the more advanced classes. Maurer attributes
this to Padden's personal animosity towards him; an animosity that Maurer complains was
backed by Mendoza's control of the department's scheduling process. Maurer admits that he
also harbored animosity toward Padden, due to his belief that Padden was instrumental in
having him removed as Dean of Technology. However, Maurer contends that it was Padden's
animosity that was the primary cause of the intra-departmental conflict.
Padden denies any role in Maurer's removal as dean, and he disputes Maurer's
contention that he had a limited range of teaching abilities. He insists that, with the exception
of the space courses, both he and Maurer were qualified to teach all of the District's aviation
courses. According to Padden, the problem was created when Maurer decided that he, and
only he, should teach specified advanced courses.
To a large degree, Maurer's frustration over the scheduling of classes resulted from
what he believed to be a considerable disparity in his education and experience in the field of
aviation and space compared to that of Padden and Mendoza.
Mendoza has no aviation training or experience.
Maurer received bachelor and masters degrees in technology and education from Kent
State University in the early 1970s and a Ph.D. from UCLA in 1976. He holds a FAA license
which enables him to fly as a commercial pilot, with specialized ratings for turbo-jets,
helicopters, gliders, seaplanes, and multi-engine aircraft. He holds an instrument rating, is an
instrument instructor, and both a basic and an advanced ground instructor.
Padden flew jet fighter airplanes in the U.S. Air Force for six years. He next worked
for United Airlines as a co-pilot and a flight engineer, then a co-pilot for the Flying Tiger lines
for a number of years. After that, he then went into corporate aviation as both a sales manager
and a corporate pilot for a number of organizations. He also became a flight instructor during
this time. From 1995 to 2001 he held a commercial pilot's certificate with an instrument rating
for single and multi-engine land planes, ground instructor's advance and instrument ratings and
a flight instructor airplane and flight instructor instrument ratings. Padden admitted that he
allowed some of his licenses and/or ratings to become inactive between 1994 and the late
1990s due to his college responsibilities. He also admitted he has no space-related experience.
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The adversarial pattern with regard to departmental scheduling was repeated in
determinations over the budget and the appropriate classroom(s) for their individual
assignments.
In addition, Padden and Maurer also argued over whether Maurer locked up
departmental property in such a manner as to prevent Padden's access. Maurer insisted the
secured materials were his personal property.
Maurer accused Padden of discarding the FAA aviation instructional tapes that he
Maurer) was instrumental in having donated to the college. Maurer insisted that they were
worth approximately $15,000. Padden said that in 1996 he permitted the tapes to be donated to
various civic groups, such as the Boy Scouts and various flight schools, because they were
antiquated and virtually worthless for the purpose of teaching aviation classes at the college
level.
Maurer admits he was angry over Padden's role in this matter and his subsequent
refusal to admit any complicity in their disappearance. He insists that the issue continues to be
an embarrassment to the college, because there are still periodic requests to borrow the tapes.
Padden rejected Maurer's contentions that he improperly donated these tapes, pointing
out that he was the IUA at the time the films were donated and Maurer was not even a member
of the Aviation and Space Department; he had recently become the Dean of Career Education.
Padden added that Maurer never let this issue rest. At every meeting and in many memos from
the time the incident occurred until Padden retired, Maurer continued to bring up the removal
of the FAA tapes.
In addition, Maurer was frustrated over Mendoza's (1) refusal to put anything in
writing, (2) delay in approving routine requests, (3) habit of forgetting agreements he made,
(4) super sensitivity to even the most minor of criticisms, (5) repeated postponing and
15

rescheduling of meetings, and (6) continually sending out Aviation and Space class schedules
weeks after the rest of the college had received theirs.
Padden admits that Mendoza created a lot of work for the faculty, is not a
disciplinarian, does not use his staff effectively and does not have a very good recall of
incidents that occur in meetings. He said that a lot of time was spent in meetings refreshing his
memory. In general, Padden believes that Mendoza is an ineffective manager.
Beginning with Vice President of Instruction O'Hearn's departure in 1995, and with
Maurer's subsequent demotion to a faculty position, Maurer believes a campaign of
harassment against him began. He insists that this campaign continues up to the present day,
in an on-again, off-again manner, with Mendoza as one of its primary proponents.
Class Cancellation
Superimposed over the question of which class each instructor was to teach, and in
what classroom, was the issue of the college's policy of canceling classes due to insufficient
enrollment. Maurer insists that Mendoza purposely scheduled his classes on days and at times
that would increase the likelihood that they would not attract sufficient enrollment to remain
open. In addition, he insists that many of the classes that were cancelled would have
eventually attracted sufficient students if Mendoza had not cancelled them well in advance of
the first day of class. He contends that, historically, classes have been permitted to meet at
least twice before being cancelled. He states that Mendoza cancelled two of his second
semester courses (scheduled to start in late January) before the Christmas break." Mendoza,
while admitting he cancelled the classes, denies the charge of purposely scheduling Maurer's
classes at such times so as to facilitate their failure to attract sufficient enrollment.
Mendoza states that, at the same time that he cancelled Maurer's classes, he also
cancelled four other division classes, i.e., one in the Machine Department, one in the Aviation
Maintenance Department, and one in the Construction Department.
16

Dees stated that one of the ways he was attempting to increase OCC enrollment was to
cancel low enrollment classes. The Technology Division had one of the highest rates of low
enrollment classes. He specifically told deans throughout the college not to wait until the first
or second week of the semester to cancel a class, as it created too much havoc on the students'
schedules and disrupted faculty schedules.
Maurer contends that, in the past, if an instructor had an introductory class of thirty or
more students, s/he was allowed to keep a highly specialized class of less than eighteen (the
CBA mandated minimum class level). Mendoza did not follow this "averaging out" pattern.
Advisory Committee
The Aviation and Space Advisory Committee consists primarily of members of the
aviation community and college students. It meets annually to review the department's
program and make proposals for content amendments. These meetings are state-mandated and
college administrator participation is important, if not crucial. When he was the Technology
Division Dean, Maurer hosted over 100 advisory committee meetings. After he returned to a
faculty position, he continued to be the program coordinator for the committee. The
coordinator routinely creates an agenda agreeable to all members of the department, the IUA
and the division dean. Once the agenda has been approved and disseminated, the meeting is
held, and the coordinator prepares proposed minutes for the IUA and division dean's approval.
Maurer believes that Mendoza refused to respond to proposed agenda submissions and
meeting dates. Maurer insists that this inattention to the committee's business led to his
unilaterally agendizing items without first receiving Mendoza's approval. Maurer also
complained about an instance that occurred in April 2001. Maurer had earlier submitted
approximately sixteen alternate dates for an advisory committee meeting. Later, his
circumstances changed, and he was not able to attend one of those dates due to family
17

responsibilities. He contends that Mendoza, knowing he was unavailable, selected that date for
the meeting. Mendoza insists he did not know of Maurer's family situation, although Maurer
states that he previously informed him of the circumstances. When the meeting was held and
various participants inquired as to Maurer's whereabouts, Mendoza claimed ignorance.
One year Mendoza attempted to cancel the annual advisory committee meeting.
Ballinger told him he did not have the authority to do that, so the meeting occurred. However,
Mendoza failed to attend, insisting that he had to attend the weekly curriculum meeting
instead. This obvious slight to the committee incensed Maurer. In addition to his personal
unhappiness, Maurer states that the committee members were very vocal in their criticism of
Mendoza's failure to attend and respond to questions they had about the department's
management.
After each committee meeting was held, Maurer prepared minutes that purportedly
highlighted members' criticism of Mendoza and his management style. Mendoza, after
examining Maurer's proposed minutes, checked with other participants with regard to their
accuracy. Mendoza said they told him the proposed minutes did not accurately reflect what
occurred at the meeting. " Mendoza told Maurer what he had learned and insisted upon
revisions to the minutes. Rather than revising them, Maurer sent them to Ballinger, the
individual with overall responsibility for vocational education. Ballinger merely sent them
back to Mendoza, as he was the appropriate person to review them. Shortly after this meeting,
Mendoza removed Maurer as the department's committee liaison.
In his testimony, Padden admitted students at the advisory committee meeting made
hostile comments about Mendoza.
18

At some time after Maurer had been removed as the committee liaison, Ballinger called
him and told him that Mendoza had only invited one-third of the members of the committee to
the annual meeting. Maurer had not been told of the time or place of the meeting. This
selective invitation list, along with Mendoza's attempt to cancel the committee meeting the
previous year, reinforced Maurer's belief that Mendoza was attempting to minimize the
department's potential for success, as well as Maurer's role in the department.
Program Review
Every six years, each department must develop an internal written program review,
covering such subjects as curriculum, retention of students, courses offered and whether the
unit was meeting industry needs. Initially, Maurer was given the responsibility for developing
a draft of such document. He states that he received input from many different sources over a
period of one-and-one-half years. He said that much of this input was critical of Mendoza's
stewardship. Although Maurer, Padden and Mendoza met more than nine times over several
years, no agreement with regard to the written program review could be reached. Maurer
insists that the conflicts centered around Mendoza's attempts to water down the criticism of his
management of the department.
Dr. Bill Briese (Briese), OCC's program review coordinator, told them to "agree to
disagree" and put both views in the report and send it to the administration. The parties could
not even agree to follow that approach. Shortly after Maurer left the department, Mendoza
submitted his program review report.
IUA Selection
Maurer explained that, throughout the campus, the IUA has traditionally been a full-
time faculty member from the involved department, who is elected, not appointed.
19

As early as mid-1998, Maurer's disputes with Padden had escalated to the point that he
called for Padden's ouster as IUA. He requested Mendoza take over direct supervision of the
department. On September 16, 1998, Maurer sent a memo to Mendoza, with a copy to the
college president and Dees, advocating an "ACTION PLAN" for the department. The memo,
in pertinent part, is as follows:
I am very sorry that I have to resort to a paper trail to secure help
for our students and department over issues that have been
building over the past two years. Having borne the subtle and not
so subtle effects of Mr. O'Hearn's["] actions, I cannot allow
misleading documentation memos to go unchallenged
Unfortunately, the motives and timing of this ACTION PLAN
may be questioned with the departure of the Vice-President of
Instruction. I have spent the summer trying to secure resources
which could benefit the students and department. Your habit of
not responding to specific issues in writing has resulted in
confusion and inaction. Clearly the current environment in the
division is one of disabling actions rather than enabling support.
Over the past two weeks, your actions can only be characterized
either as inattention to important matters-i.e. schedule, secured
storage of teaching materials, and fielding of student complaints;
or a policy designed to harass and introduce as much chaos as
possible into the department. If the goal is to shut the department
down and hasten my departure, as Mr. O'Hearn desired, then it
should be put on the table for advisory committee and community
debate. I have suggested with our needs for campus instructional
support and declining enrollment, that much of your time should
be spent facilitating solutions and interfacing with campus offices
to solve problems related to Aviation & Space. Nothing can hurt
a college or affect morale more than the loss of a department
because of neglect. Instead, the students and I get very little of
your time or help in following up on campus issues or
instructional roadblocks. Your memo of September 9 is a classic
CYA memo and does nothing to solve the problems at hand.
Since your actions will affect the viability of the program, I will
respond first to the scheduling issues of spring semester, and then
proffer an ACTION PLAN to move us forward. I'm sorry if parts
Chris O'Hearn was the outgoing college Vice President of Instruction. Maurer and
O'Hearn had many conflicts over the years. Maurer was convinced that O'Hearn's ultimate
objective was to shut down the Aviation and Space Department and to eliminate his (Maurer's)
position at OCC.
20

of this seem [sic] to be placing blame, but such is the nature of
the problem as you have defined it.
In December 2000, Padden retired early from his full-time position, due at least in part
to his battles with Maurer. Rather than appointing Maurer to the vacant IUA position,
Mendoza appointed the Air Power and Frame Department IUA, Rodney Foster (Foster), to the
position, in addition to his own. Maurer points out that the pilots and mechanics have little in
common. A more natural linkage would have been pilots and flight attendants, two groups that
have much of the same training and share the same advisory committee.
On December 15, 2000, Maurer complained to Dees of Foster's appointment, which he
characterized as Mendoza's "unilateral revocation of the Aviation & Space IUA," insisting that
Mendoza "[alt the very least, . . . should have consulted the department on the impact of the
retirement of Bill Padden."
However, Dees had previously suggested to Mendoza that, when he had the
opportunity, he should reduce the number of IUAs in his division. In recognition of the
additional burden of their position, the IUAs receive a stipend in the form of release time.
Dees did not believe an IUA for a department of one or two full-time faculty was a good use of
these budgetary funds. Since Maurer's departure, Mendoza has consolidated the Construction,
Computer High-Tech, and Heat and Ventilation Departments under one IUA.
Once Foster realized he was not going to be effective in lowering the conflict level
among the Aviation and Space Department faculty, he resigned this extension of his IUA
position on February 1, 2001. Mendoza assumed the IUA duties and responsibilities of the
department himself. After Maurer left the department, Foster resumed his Aviation and Space
Department IUA position.
21

Attempt to Reassign Department
In the fall of 1998, Dees was the interim Vice President of Instruction. He was later
given the position on a permanent basis. Maurer, who had a positive relationship with Dees
when they were both deans, began to submit departmental matters directly to him. These
matters included scheduling preferences, conference requests, and field trip requests. Dees
consistently referred these requests back to Mendoza and encouraged Maurer to follow the
chain of command.
Maurer also attempted to circumvent Mendoza's supervision by urging Dees to either
personally take over the department or reassign it to another division. Dees discussed the
possibility of such a move with Renley, the Federation leadership, and two other division
deans. The two deans told Dees that they were not interested in having Maurer under their
supervision. The general consensus was that the reassignment of the department was not a
practical solution.
Reassignment Request to President
When Maurer was unable to convince Dees to either take over the department or to
assign it to another division, he wrote to OCC President Gratton on March 22, 2001, requesting
that she (1) implement his requested modifications in the department's fall 2002 class
schedule, and (2) immediately place the department under the supervision of Ballinger. On
April 4, Maurer again wrote Gratton complaining of more of Mendoza's alleged inadequacyes.
In response to these two letters, Gratton scheduled a meeting with Maurer for April 27. Dees
was invited due to his instruction responsibilities. According to Maurer, he was directed to
attend the meeting by Gratton's secretary, but was not told of its purpose, however, he believed
that there was no hint that the meeting was going to be disciplinary in nature. Maurer, in an
exercise of caution, called the Federation for representation, but he did not believe it was
22

necessary to wait to begin the meeting until his Federation representative, Paul Jordan (Jordan)
arrived. Maurer hoped the meeting was called to seek a solution to what he characterized as
Mendoza's lack of effective communication with the department. He states that his emphasis
in the meeting was to solve what he believed to be the students' problems, i.e., the department
was offering the wrong courses, at the wrong times, and in the wrong classrooms.
Maurer states that he was originally told the meeting would last thirty minutes.
However, when it went on for forty-five, he contends that it conflicted with one of his
scheduled classes, so he left. This contention is not credited. Gratton stated that the meeting
lasted between thirty and forty minutes. At another point in his testimony, Maurer stated the
meeting lasted thirty-five minutes.
Maurer claims that at this meeting both Dees and Gratton stated that they were not
going to waste any more time on his grievances or PERB complaints. Both Dees and Gratton
denied any mention of Maurer's grievances or PERB complaints.
During the meeting, Maurer made it abundantly clear that because Mendoza would not
act to solve the department's problems, the only plausible solution was the transfer of the
department from Mendoza's division. He admitted that he could not work with Mendoza.
Gratton and Dees said that they initially attempted to direct Maurer away from past
complaints and toward a future resolution of the ongoing conflict. However, they were not
successful, as Maurer told them that it "had to be me or the Dean." Maurer denies making
such a statement, insisting that it would be ridiculous for him to say something like that
because he knew what their choice would be.
Dees, having already determined that a reassignment of the department to a different
dean was not feasible, eventually responded to Maurer's concerns by asking him what math
classes he would like to teach. In effect, this question told Maurer that he was being
23

transferred out of the Aviation and Space Department. After a brief period in which the two
men just stared at one another, Maurer abruptly stood up, gave Dees his attorney's business
card, and walked out. Dees states that Maurer said, "I can see where this is going, talk to my
attorney." Maurer insists that he merely said that if either Dees or Gratton had any further
questions of him they should FAX them to his attorney.
Gratton, who was surprised by Maurer's abrupt termination of the meeting, discussed
the situation later with Dees. She concentrated her remarks on the fact that Maurer had clearly
expressed his unhappiness with his dean, Mendoza, his vice president, Dees, and had just
walked out of a meeting with his college president.
Both Dees and Gratton believed that Maurer could not be left in the Technology
Division, as he was hurting the program by his interference with, and combative attitude
toward, the dean. They agreed he had to leave the department. Dees made arrangements to
talk to Renley about effecting such a transfer.
Administrative Leave
On May 10, 2001, Maurer received a voice mail from Gratton's secretary requesting his
presence at a May 14 meeting with Gratton and Dees. The message described the meeting as a
continuation of their earlier talks. When he arrived with Jordan he was met by Renley, Dees,
and Gratton, who informed him that he was being reassigned due to his inability to work with
Mendoza. In addition, Renley said he was being placed on immediate paid administrative
leave, pending an investigation of safety concerns. The meeting lasted approximately thirty
minutes.
Maurer was surprised by this sudden decision. He explained that ordinarily he would
expect due process to require his being given (1) an advance copy of any pending charges
against him, (2) an opportunity to personally rebut them with a Federation representative
24

present, (3) a written list of the reasons he was being put on administrative leave, and (4) an
opportunity to provide his rebuttal to whomever was assigned to investigate the matter.
Instead, he was told he would immediately be escorted to his office by Vice President
Mcllwain, where he could pick up whatever he could take with him. He was then to turn in his
keys to everything but his personal office, leave campus, and not contact anyone on campus,
including students. Renley agreed to let him delay a wholesale removal of personal belongs
from his office until the completion of the investigation, which he anticipated would take about
two weeks. Maurer states that he later forwarded his grade rosters to Gratton, but Padden, his
substitute teacher for the remaining few weeks of the semester, never received them.
Consequently, all students in one class were given grades of A. Later on the day that Maurer
was escorted off campus, Dees met with OCC's deans and told them that Maurer had been
removed as a security risk and that he had been instructed not to come on campus. No
questions or further inquiries were permitted.
Renley testified that on at least four other occasions he has removed an employee from
the campus. Two of the instances involved classified employees and one involved an
administrator. Therefore, these occasions did not directly disrupt classroom activity. In one
instance there was an allegation that an English instructor stated that "if he had a machine gun,
he would go postal." Renley removed him from the classroom and campus. There was no
other evidence regarding any of the circumstances surrounding this case.
When Renley reported the reassignment and administrative leave to the Chancellor and
Board of Trustees on May 16, 2001, he prepared a short biography of Maurer. In it he made
references to Maurer's having "filed several grievances, including unfair labor practices with
PERB against both the CFE and the District (both dismissed) . . .."
25

Renley made the decision to place Maurer on administrative leave after Mendoza and
Dees expressed concerns regarding their safety. In addition, at some undetermined time in the
past, Judy Olson (Olson), a faculty member in the flight attendant program, expressed concerns
to Mendoza about her safety around Maurer. Mendoza said that Federation President Tina
Bruning (Bruning) also warned him that Maurer was a threat to his safety. This was in
reference to a February 1995 incident in which Maurer, then OCC's technology dean, and
Bruning confronted one another. Bruning accused Maurer of assault; he insisted that he
merely brushed by her in a doorway while exiting a room. She filed a police report on the
incident. The administration investigated the incident and resolved it in favor of Maurer.
The District also referenced complaints of alleged threats by Maurer against a
Construction Department instructor named John Waters (Waters). Maurer was not aware of
these allegations until he first learned of them in documents subpoenaed in this case.
Mendoza also related a conversation he had with David Grant (Grant), a former OCC
president, in which Grant told him that "I saw that look in his eye and I thought he was going
to kill somebody."
Mendoza testified that he was so concerned about his safety that he obtained two
bulletproof vests; one for himself, and one for Dees.
Maurer states that at the May 14 meeting he was told by Renley that he would be
(1) told of any discipline in advance, (2) given access to any third party investigator with
opportunity for input into the process, (3) given a report of the investigative results, and
(4) eventually given a copy of written charges, if any. Renley disputes part of these assertions,
stating that he merely told Maurer that he would give him a copy of the investigative report
only if the District took some action as a result of such report.
26

Renley used the services of an investigator who was affiliated with the District's
attorneys. This investigator conducted interviews with various campus personnel. In addition,
he attempted to contact Maurer. However, Maurer states that he did not receive a message
from the investigator until Friday, May 17, 2001, when he was in Oklahoma City attending a
weekend seminar. The message" stated that if Maurer wanted to have any input in the case, he
should come to the District office the next morning. No alternative date was given. Maurer's
attorney called the investigator complaining about the short notice and informing him of
Maurer's geographic unavailability. The investigator and Maurer never met.
Although the investigator did prepare a report, it was neither given to Maurer nor
entered into evidence at the formal hearing. Renley said that the report concluded that
although Maurer was intimidating, there was no evidence of "actual physical violence." The
District asserts that it took no action as a result of the report.
Renley merely informed Maurer and his attorney that the investigation was complete,
and that Maurer would be permitted to return to his teaching duties at the start of the fall
semester. When he returned to the campus, Maurer was assigned a classroom in the
Technology Building that was closer to Mendoza's office than his previous office. Maurer's
new classroom is on the second floor directly above Mendoza's office, whereas his previous
office was approximately 250 feet away, near the back of the building, with a nearby exit.
This new office/classroom alignment provides considerably greater potential for random
contact between the two men than there had been prior to Maurer's administrative leave.
The record is unclear if the message was left on Thursday, May 16 or Friday,
May 17.
13 When Dees became aware of this classroom/office proximity situation during the
formal hearing in this case, he notified OCC's classroom scheduler to make sure Maurer's fall
2002 classrooms, were not in the Technology Building.
27

Maurer sees this as an inconsistency in the District's contention that he was a potential
physical threat to Mendoza. The alleged threat to Mendoza was a major part of the basis for
his exclusion from the campus and the "violence" investigation.
Shortly after the events of September 11, 2001, an OCC political science instructor
engaged in a heated discussion of Israeli-Arab historical confrontations. He was subsequently
accused of allegedly making improper statements to students of middle-eastern ethnicity. The
instructor was placed on administrative leave pending the results of an investigation. The
college contracted with an outside agency, the Orange County Office of Education, to
investigate the facts in that case. The college characterized this process as a third party review.
Once that investigation was completed, a copy of the resulting report was given to the involved
instructor. The instructor was reinstated to the classroom, but given what he characterized as a
letter of reprimand. The District asserts that the letter it gave the instructor was not a letter of
reprimand, as it did not meet the CBA formalities for such a letter.
In addition, an instructor in OCC's Technology Division was accused of sexual
harassment of a student. His case was investigated by the same person OCC used in Maurer's
case. Renley does not believe that the involved instructor was given a copy of the investigative
report.
Unprofessional Conduct Charge
Renley contends that because of Maurer's history of difficult relationships with other
members of the staff, he decided to give him a Notice of Unprofessional Conduct. This was
the first such notice that he had given an employee in the twelve years he had been at the
District.
28

No Disciplinary History
However, the District admits that there were no prior disciplinary actions of any sort in
Maurer's District employment history. When asked why the District did not impose a less
stringent discipline, Renley replied that the college had already given him several letters
directing him to cease and desist specified actions. He admitted these letters were not formal
letters of reprimand, nor were they placed in his personnel file.
Educational Code Requirements
The Educational Code requires the District, before it actually disciplines an employee
for unprofessional conduct, to give him/her a ninety days written notice of the unprofessional
conduct
specifying the nature thereof with specific instances of behavior
and with particularity as to furnish the employee an opportunity
to correct his or her faults and overcome the grounds for the
charge. . . .
Pursuant to other provisions of the Education Code, the notice must be limited to
circumstances that occurred during the prior four years.
CBA Limitations on Derogatory Material in Personnel File
However, the parties' CBA, in Article VII, section 9(a) states, in pertinent part:
Derogatory material placed in a Faculty Member's personnel file
shall be destroyed upon the request of the Faculty Member when
such material is more than three (3) years old.
The Notice of Unprofessional Conduct was given to Maurer on September 24, 2001.
Therefore, anything dated prior to September 24, 1998, should not have been in his personnel
file and available to support such notice. On the other hand, there was no evidence that Maurer
ever asked that any material in his personnel file be destroyed. In addition, during the time
that he was an administrator, either as the Dean of Technology or the Dean of Career/
Vocational Education, he was not covered by the parties' CBA and any personnel documents
29

from this period of time were outside of its ambit. He was reassigned to a faculty position in
December 1995. Therefore, any documentation in his personnel file dated between December
1995 and September 24, 1998, should have been destroyed upon his request pursuant to the
CBA three-year limitation.
It should be noted that the CBA does not specifically prohibit documentation that is
more than three years old from being used to support a negative personnel action, but the
language supports such an inference. If the material is not supposed to be in the employee's
personnel file, it follows that the intent of the parties was that it not be used against the faculty
member.
Source of Unprofessional Conduct Allegations
When Renley was asked how he compiled the forty-eight separate examples of alleged
misconduct he used to support the Notice of Unprofessional Conduct, he stated that the
information was compiled from:
. . . . various sources, and it was letters sent back and forth
between Dr. Maurer, Bob Mendoza, Bob Dees, Chris O'Hearn,
my correspondence with him.
ADMINISTRATIVE LAW JUDGE LINK: Okay, but her original
question was these things were not in his personnel file?
THE WITNESS [Renley]: There may have been a couple of
them that were in his personnel file, but the vast majority were
not.
CBA Article VII, section 1, states, in pertinent part;
There shall be only one official personnel file for each Faculty
Member, which is maintained at the District Office. The material
in the official District personnel file shall be considered and used
as the only official personnel record of the District in any
proceeding affecting the status of the Faculty Member's
employment with the District. The personnel file shall include,
but need not be limited to, records of employment with the
District and records of professional evaluation. In addition, such
records as educational advancement and pertinent work
30

experience as provided by the Faculty Member shall be a part of
the official District file. [Emphasis added.]
Maurer subpoenaed all documentation from college administrators that contained
references to him. The District, in its responsive transmittal, provided 4486 pages of such
documentation.
Notice of Unprofessional Conduct
The August 6, 2001, Proposed Notice of Unprofessional Conduct consists of an
opening paragraph, forty-two "examples and incidents establishing the foregoing," and a
closing paragraph. The opening and closing paragraphs, in their entirety, are as follows:
The Proposed Notice will be based upon the fact that within the
past four years, you have frequently and repeatedly undermined
the working relationships within your division and department,
subverted the authority of the Dean, failed to work collegially
with the Dean and other staff members, failed to follow numerous
directives to work through the LAU and the Dean of your
department, failed to follow established guidelines, rules and
regulations of the District relating to Advisory Committee
meetings, and have generally created a hostile working
atmosphere for the Dean and other employees within your
department at the College. . . .
. . . . . . .
The specific instances recited above are given in order to provide
you with an opportunity to correct your faults and overcome the
unprofessional conduct. Failure to fully and completely correct
the deficiencies will result in your dismissal from the District.
This opening statement was followed by forty-eight brief (often only one sentence)
examples of allegedly unprofessional acts of Maurer.
Analysis
An examination of the forty-eight examples reveals that Examples 1, 2, 3 and 4 all fall
during the excluded period of time. In addition, Example 47 states that Maurer allegedly
31

engaged in inappropriate activity "over the past four years." The first of these four years
would have been during the period of time excluded by the CBA.
Many of the examples contained little more than accusations that Maurer wrote
(1) memos complaining about Mendoza's management style, and/or (2) severely critical
conclusions about Mendoza's ability to do his job. A number of Maurer's memos would seem
to fall within the realm of academic freedom.
The parties' CBA references academic freedom as follows:
ARTICLE VI. ACADEMIC FREEDOM AND RESPONSIBILITY
Section 1. Recognizing that free search for truth and the
expression of diverse opinions are essential to a democratic
society, both the District and the Federation will encourage and
protect academic freedom.
Section 2. A Faculty Member shall not be subject to any adverse
action affecting the Faculty Member's employment status with
the District:
. . . . . . . . . 	. . . . .
(e) For expressing in an appropriate forum the Faculty Member's
viewpoint on matters of College and District policy. [Emphasis
added.]
Subsection 2(e) of CBA Article VI, supra, makes it clear that the parties anticipated a
limit on the faculty members' right to complain about college policy and its administrators.
Subsequent to Maurer's receipt of the Notice of Unprofessional Conduct, and two days
before the matter was to be heard by the Board of Trustees, Maurer requested a copy of all
materials that were to be given to the Board of Trustees. Renley declined, but did provide the
requested materials after the Board of Trustees' meeting. Maurer also asked that some of the
charges be dropped, as they involved protected activities and/or were the subject of academic
freedom. Renley declined to amend the proposed notice.
32

Maurer requested, and was granted, a hearing open to the public, as opposed to a closed
session. During this hearing, Maurer was given an unlimited amount of time to make his
presentation to the board.
Prior to its consideration of the matter, the Board of Trustees was given copies of the
proposed notice, along with all backup documents, as well as Maurer's written response.
However, it was not given the documentation of support submitted on his behalf when he was
removed from his position as Dean of Technology. This documentation, entered as an exhibit
in this case, consisted of seven separate letters and a petition of support signed by forty-seven
members of the faculty and staff of the Division of Technology. After hearing Maurer's
presentation, the Board of Trustees approved the proposed notice. It was given to Maurer on
September 24, 2001.
There was no evidence of any discipline of Maurer subsequent to the Notice of
Unprofessional Conduct.
ISSUE
Did the District, when it (1) placed Maurer on administrative leave, (2) involuntarily
transferred him, and (3) issued him a Notice of Unprofessional Conduct, discriminate against
him because of his protected activities, thereby violating subdivision (a) of section 3543.5?
CONCLUSIONS OF LAW
In Novato Unified School District (1982) PERB Decision No. 210 (Novato), the Board
set forth the test for retaliation or discrimination in light of the National Labor Relations Board
(NLRB) decision in Wright Line, Inc. (1980) 251 NLRB 1083 [105 LRRM 1169] enforced in
part (Ist Cir. 1981) 662 F. 2d 899 [108 LRRM 2513]. Under Novato, unlawful motivation
must be proven in order to find a violation.
33

In order to establish a prima facie case, charging party must first prove that the subject
employee engaged in protected activity."* Next, it must prove that the person(s) who made the
decision that resulted in the harm were aware of such protected activity. Lastly, 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.
Proving the existence of unlawful motivation can be difficult. PERB acknowledged
that when it stated the following in Carlsbad Unified School District (1979) PERB Decision
No. 89 (Carlsbad), at page 1 1:
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.]
Analysis
There is little doubt that Maurer engaged in protected activities, both when he filed an
unfair practice charge with PERB and when he filed various grievances with the District.
The respondent, in its brief, stressed the personal nature of Maurer's grievances, as
opposed to those that concern the working conditions of employees in the workplace other than
the grievant. Granted, many of Maurer's grievances concerned issues that affected him
directly. However, all had a potential effect on the other department's instructors, thereby
supplying a collective indicia to them. This is apparent with regard to such issues as (1) the
14 Section 3543 grants public school employees:
(a) . . . 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. . ..
(b) Any employee may at any time present grievances to his . . .
employer, and have such grievances adjusted, . . . .
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Aviation and Space Department's class scheduling procedures, (2) the content of the program
review report, (3) the advisory committee agenda and minutes, and (4) the attempted
reassignment of the supervision of the department to someone other than Mendoza. Filing a
grievance is protected conduct under North Sacramento School District (1982) PERB Decision
No. 264, regardless of the personal nature of Maurer's grievances. Also, his filing of the unfair
labor practice in May 2000 is sufficient protected conduct to satisfy the first element of the
Novato test.
There is no doubt that Mendoza, Dees, Gratton and Renley, the primary decision-
makers in this case, were aware of such activities. The fact that Gratton and Dees were not
directly involved in the resolution of these filings is irrelevant; they were aware of them and
knew of their potential to create a negative impact on the college and its staff. Therefore, the
second element of the Novato test is satisfied.
The remaining element is whether a nexus exists between the employer's knowledge of
these activities and the negative personnel action(s) taken.
First, Mendoza refused to submit a program review which included both his and
Maurer's opinions, as suggested by Briese, OCC's program review coordinator. This suggests
a sensitivity on Mendoza's part to even the most minor of criticisms. This sensitivity was at
the heart of many of Maurer's complaints. It was the transmittal of these complaints to his
second and third level supervisors that formed the basis of his Notice of Unprofessional
Conduct.
The District, without any evaluation of Maurer's role in this process, took him to task
for the department's failure to submit a completed report. This failure to examine the
respective roles of the two men involved in the failure of the department to produce a program
review report, suggests a pretextual justification for the District's complaints about Maurer.
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This unsupported justification was also apparent in Mendoza's failure to approve
advisory committee meeting minutes and agendas. It is apparent that Maurer was frustrated by
Mendoza's refusal to acknowledge any sort of criticism. However, if the criticism was
deserved, and there are no judgments being made at this point regarding whether it was or was
not, the District's failure to determine its validity is inconsistent with its insistence that Maurer
was wrong in bringing such alleged improprieties to its attention. This also falls within the
prohibition set forth in Baldwin Park Unified School District (1982) PERB Decision No. 221,
with regard to relying on a cursory investigation to support negative personnel actions.
The manner in which Maurer was placed on administrative leave also supports an
inference of unlawful motivation. Maurer successfully taught at District colleges for twenty-
five years, albeit the last few with a mixed personnel record. There was no precipitous
violence-related event that immediately preceded his leave. Maurer did not hit or threaten to
hit anyone. And yet, primarily on the word of one man, Mendoza," the District called Maurer
in, and with no warning, placed him on leave, marched him to his office to retrieve personal
items, and escorted him off campus. It compounded its precipitous action by warning him not
to talk to any of his colleagues or students.
This campus expulsion occurred seventeen days after Maurer's meeting with Gratton
and Dees, and approximately two weeks prior to the end of the semester. If the District
contends that Maurer's behavior during his meeting with Gratton was so offensive and fraught
with potential violence as to warrant the suspension, its delay of seventeen days before
ordering him off campus and initiating an investigation constitutes an inconsistent explanation
The only other support for a conclusion that Maurer was potentially violent was
(1) Bruning's 1995 incident, (2) Grant's equally dated subjective comment, (3) a somewhat
dated comment by Olson, and (4) a stale complaint by Waters that must have occurred prior to
1995 because it referenced Maurer's position as Dean of Technology.
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of its behavior. If the District contends that the offensive behavior and violent overtones at
this meeting were minimal, Maurer's suspension two weeks before the end of the semester is
inconsistent with this explanation of its behavior.
Irrespective of events that occurred more than five years previously, the District
justifies its suspension on little more than (1) Mendoza's fears, (2) Maurer's facial expressions
and a momentary staring contest with Dees, and (3) the throwing/dropping of a business card
by an employee who has just been told that his last twenty-five years of education and training
are no longer of value to his employer. This District action with regard to the administrative
leave strongly supports a conclusion that the reasons given for it were pretextual.
With regard to the unprofessional conduct charge, it must be noted that it closely
followed the District's determination there was no evidence to support a charge of impending
violence. This brief time span, with no intervening negative Maurer behavior, suggests that the
decision to serve such a notice was little more than a second opportunity to produce the same
desired result, i.e., to remove Maurer from either the department or the college.
An analysis of the forty-eight examples cited by the District, lead to a conclusion that
the reasons behind such notice were unsubstantiated. Therefore, they support an inference of
unlawful motivation.
Three of the examples are no more than foundational sentences, Nos. 1, 33, and 38,
such as:
On September 28, 1997, and on a number of subsequent
occasions, you were specifically directed to work through the
designed IUA and to keep him informed;
These examples seem to be included only to show that Maurer was warned not to
continue his allegedly inappropriate behavior. They are not actual examples of inappropriate
behavior.
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Example No. 47 is a general summary of the others:
You have refused to work in a cooperative manner in the
scheduling process over the past four years;
Example No. 4 deals with Maurer placing what he believed to be his personal property
in a locked cabinet in the departmental storage area. The issue of whether the secured
materials belonged to him or the department was, and still is, in dispute.
Example No. 17 accuses Maurer of denying the dean's assistant access to his personal
office. He justified denial of access to all persons to his office on the grounds that papers had
been missing in the past.
Example No. 48 accuses Maurer of (1) making the "its either the Dean or me"
statement, which he denied, (2) throwing down an attorney's business card, and (3) leaving a
meeting with administrators before they felt it was completed.
Example, No. 22 accuses Maurer of repeatedly failing to submit his office hours. His
rebuttal was that the dean repeatedly refused to tell him what his class schedule was going to
be. Absent a class schedule, it is very difficult to develop, much less submit, office hours.
Example No. 9, accuses Maurer of modifying the dean's student survey. In fact, the
real problem was that Maurer sent out his own survey, the same one that he had routinely sent
out in the past.
Eight examples, Nos. 6, 12, 13, 20, 24, 26, 41, and 46, accuse Maurer of failing to
follow the chain of command in his memos or requested class schedules.
Four examples, Nos. 21, 37, 44, and 45, accuse Maurer of inappropriately sending
copies of his criticism of the dean to students and members of the community.
38

The remaining thirty-two examples" accuse Maurer of criticizing the dean or IUA.
Basically, Maurer is accused of three separate types of unprofessional conduct:
(1) criticism of Dean Mendoza (thirty-two examples), (2) failure to follow the chain of
command (eight examples), and (3) involving the students and community members in intra-
departmental disputes (four examples).
The CBA's academic freedom provisions state that a faculty member shall not be
subject to any adverse action for expressing a viewpoint on college policy, insofar as it is in the
appropriate forum. The involvement of students or outsiders in collegial affairs is a much
more complicated issue and may be considered an "inappropriate" forum . However, the
involvement of outsiders was a fairly minor part of his notice.
Aside from this possible exception, the above-cited "examples of his unprofessional
conduct" would suggest to other members of the District's faculty that criticism of one's
immediate supervisor in memoranda to second- and/or third-level supervisors is an
inappropriate forum. This interpretation of academic freedom does not seem to leave any
room for an honest difference of opinion on departmental policy, whether it concerns
schedules, classroom allocation, department review documentation, or advisory committee
agendas/minutes.
Certainly, Maurer's style lacked tact and, at times, was extremely combative.
However, the District's examples of unprofessional conduct do not complain of inappropriate
style, but rather of unprofessional content. For example, No. 2 states:
On January 24, 1998, you sent a memo to the Dean indicating
that another instructor was incompetent to teach the classes for
which he was scheduled.
"The number of referenced examples will total more than forty-eight as some
examples fit more than one category, e.g. No. 12, "On March 28, 1999 you sent a memo to the
Vice-president, with a copy to the President, bypassing the Dean, complaining of the Dean's
scheduling."
39

The Notice of Unprofessional Conduct does not explain under what circumstances
Maurer made this statement, nor is Maurer's January 24, 1998, memo in evidence. In his
rebuttal, however, Maurer stated that he told Mendoza that Padden had not maintained a
current FAA license/rating/certificate in specified areas. He based this on information listed
on the FAA (internet) database. Therefore, Maurer said, according to the college's own
published job minimum qualifications, Padden was not eligible (competent) to teach courses
that required the instructor to have current specified FAA ratings.
Given these circumstances, it would seem incumbent upon Mendoza and/or the college
to examine the status of Padden's current FAA ratings, rather than chastising Maurer for
bringing the matter to their attention.
To the extent the Notice of Unprofessional Conduct misrepresents and, in an
unsubstantiated manner, escalates negative aspects of Maurer's behavior, it is inconsistent with
the parties' CBA regarding academic freedom and chronological limitations on the use of
personnel file documentation. Therefore, it supports an inference of unlawful motivation.
Maurer points to his classroom assignment in the fall of 2001 as a major inconsistency
in the District's argument that he was a potential threat to Mendoza. Under his new duties in
the Mathematics Department, he was assigned a classroom in the Technology Building in close
proximity to Mendoza's office. In fact, he was much closer in the fall of 2001 than he had
been in the spring of 2001, when he was a member of the Aviation and Space Department.
Dees insists that this was an oversight that was cured once it was brought to his
attention during the formal hearing, and that all future assignments for Maurer would be in
locations other than the Technology Building. These circumstances do not support an
inference of unlawful motivation.
40

There were a number of additional circumstances that support a conclusion that the
District's expressed reasons for the action taken against Maurer were pretextual.
First, both Maurer's administrative leave and his Notice of Unprofessional Conduct
were effected as an initial form of discipline. During his time with the District, Maurer had no
official reprimands, and with the exception of the difficulties he experienced at the time he was
reassigned from dean to instructor, no negative comments.
The only justification offered by the District was that Renley did not believe a lesser
form of discipline would be effective, and besides, Maurer had already received at least two
letters directing him to correct his behavior. Renley admitted that these letters were not
official letters of reprimand and were not placed in Maurer's personnel file. Two unofficial
letters are insufficient to constitute a lesser form of discipline. Therefore, they do not lend
support to the District's justification for the imposition of a Notice of Unprofessional Conduct
as an initial level of discipline.
When the District declined to institute a lesser level of discipline, and instead imposed a
major disciplinary action against Maurer for what amounts to an official first offense, it
ignored the basic personnel practice of progressive discipline. Its action in this regard suggests
an ulterior motive, and therefore, support an inference of unlawful motivation.
Second, Maurer was not given (a) a list of the complaints, (b) examples of his violence-
related propensities or (c) reasonable access to the investigator. These are also violations of
basic personnel procedures.
Third, Renley included information about Maurer's having filed a PERB unfair practice
charge and grievances in the supporting documentation transmitted to the Board of Trustees
with regard to placing him on administrative leave. This inclusion is in direct conflict with
41

section 3543, which grants employees the right to file such documents, without fear of
retaliation.
Fourth, Renley's use of materials that were more than three years old to support the
District's charges against Maurer appears to conflict with CBA Article VII 9(a) which requires
that all material in a faculty member's personnel file more than three years old be destroyed.
Fifth, Maurer's summons to the April 27, 2001, meeting with Gratton and Dees did not
include any hint that it would be disciplinary in nature. The circumstances of the meeting
strongly support a conclusion that both Dees and Gratton, prior to the meeting, were aware of
its general tenure. Maurer's belief that the meeting would afford him some sort of personal or
departmental relief from Mendoza was a bit naive, given the lack of support he had received up
to that time. The District would argue that it was only Maurer's failure to work amicably with
Mendoza that caused the meeting to become disciplinary. However, this failure was the reason
the meeting was called in the first place, and the administrators were well aware that it was
very unlikely that Maurer would suddenly mend his ways. There was no intervening
circumstance that could have caused the administrators to believe that Maurer's attitude had
changed. In the absence of a complete turnaround on Maurer's part, there was little doubt that
he would be transferred from the Aviation and Space Department during this meeting. Both
administrators knew this, and they failed to tell Maurer about it prior to the meeting.
If Maurer had Federation representation at that meeting, there is a possibility the "card
tossing," "staring," and abrupt exit incidents would not have occurred. In their absence, the
impetus for the administrative leave would not have been as immediate. The District's failure
to notify Maurer of the potential disciplinary nature of the meeting is contrary to case law and
is evidence that supports an inference of unlawful motivation. (See Redwood Community
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College District v. PERB (1984) 159 Cal.App.3d 617 [205 Cal.Rptr. 523] and NLRB v.
Weingarten, Inc. (1975) 420 U.S. 251, 256 [88 LRRM 2689].)
Sixth, CBA Article VII, section 1, states there shall be only one official personnel file
for each faculty member and it shall be maintained in the District Office. It goes on to state
that only material in such file "shall be considered and used . . . in any proceeding affecting the
status of the Faculty Members' employment . . . ." Despite this provision, the District
accumulated and gleaned over 4400 pages of documentation that provided the examples set
forth in Maurer's Notice of Unprofessional Conduct. The use of this documentation supports
an inference of unlawful motive.
All six of these examples lead to a conclusion that the District's expressed justifications
were pretextual; and therefore support an inference of unlawful motivation.
The charging party suggests that Mendoza's failure to adhere to the collegial method of
developing intradepartmental class schedules was another example of the District's failure to
adhere to established procedures. However, the scheduling process is, in large part, vested in
the respective deans. There was no evidence proffered that stated that Mendoza was required
to follow this collegial procedure. This does not support an inference of unlawful motivation.
Due to all of the foregoing, it is concluded that an inference of unlawful motivation has
been established. The burden now shifts to the respondent to demonstrate that it would have
taken the same action even in the absence of protected activity. (Dees v California State
University, Hayward (1991) PERB Decision No. 869-H.)
District's Justification for Its Actions
There is little doubt that Maurer and Mendoza were constantly in an adversarial mode;
Dees just wanted the hassles between the two of them to stop; Gratton felt insulted by Maurer's
abrupt departure from her April 27 meeting; and Renley just wanted to do whatever was
43

necessary to stop the controversy. It must be noted that none of these various reasons were
based on opposition to Maurer's filing either grievances or an unfair labor practice.
On the other hand, the record is replete with examples of Maurer's failure to peacefully
coexist with other employees. When he was the Dean of Technology, he had serious
confrontations with OCC President Grant, Vice President for Instruction O'Hearn, four faculty
members of the Construction Department, and the leadership of the Federation. After he
returned to an instructor position, he had serious confrontations with OCC President Gratton,
Vice President for Instruction Dees, Dean of Technology Mendoza, IUA Padden, and once
again, the leadership of the Federation.
PERB has found that a significant failure of communication and deterioration of the
relationship between a supervisor and a subordinate is a sufficient reason for an involuntary
transfer, despite the protected activity of the employee. (See Scotts Valley Union Elementary
School District (1994) PERB Decision No. 1052 and Fall River Joint Unified School District
(1998) PERB Decision No. 1259.)
The OCC administration was faced with an employee, although a very capable
instructor, who would not comply with its chain of command and would not accept the
supervision of either his IUA or his dean. From a personnel perspective, the situation was
untenable; something had to be done. It is concluded that when the administration took action
to bring a halt to Maurer's inappropriate confrontations with his supervisors, its actions were
justified.
It is therefore concluded that the District would have involuntarily transferred Maurer,
placed him on administrative leave, and issued him a Notice of Unprofessional Conduct,
regardless of his protected activity. Therefore, the complaint and underlying unfair practice
charge should be dismissed.
44

PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-4309-E,
Ernest W. Maurer. Ph.D. v. Coast Community College District, 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
Public Employment Relations Board (PERB or 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, secs. 32135(a) and 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 California Code of Regulations, title 8,
section 32135(d), provided the filing party also places the original, together with the required
45

number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 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).)
AMen R. Link
Administrative Law Judge
46