County of Riverside (PERB 2184M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DEVIN STEWART WHITNEY,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
Case No. LA-CE-541-M
PERB Decision No. 2184-M
June 7, 2011
Appearances: Devin Stewart Whitney, on his own behalf; The Zappia Law Firm by Brett M.
Ehman, Attorney, for County of Riverside.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by Devin Stewart Whitney (Whitney) to the
proposed decision of an administrative law judge (ALJ). The complaint issued by PERB's
Office of the General Counsel alleged that the County of Riverside (County) violated the
Meyers-Milias-Brown Act (MMBA) 1 when it released Whitney from his probationary position
as a public defender investigator after he requested union representation during a meeting with
his supervisor and copied a union representative on a memorandum to the chief investigator.
The ALJ ruled that Whitney failed to establish that the County released him because of these
activities and dismissed the complaint.
The Board has reviewed the proposed decision and the record in light of Whitney's
exceptions, the County's response thereto, and the relevant law. 	Based on this review, the
Board affirms the ALJ' s dismissal of the complaint for the reasons discussed below.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

FACTUAL BACKGROUND
The Law Offices
of
the Public Defender (LOPD) defends indigent individuals charged
with crimes in Riverside County. Gary Windom (Windom) has been the public defender since
1999. Windom has ultimate authority over all personnel decisions within the LO PD, including
hiring, firing, and discipline. At all times relevant to this matter, Calvin Freeman (Freeman)
was the chief public defender investigator. Freeman reports directly to Windom and oversees
investigators in three offices: Riverside, Southwest, and Indio. Paul Mesa (Mesa) has been the
supervising investigator
of
the Southwest office since 2001. Mesa reports directly to Freeman,
and supervises six to seven investigators and one investigative technician.
Whitney began his employment as a public defender investigator in LOPD's Southwest
office on July 31, 2008. Investigator III Roger Lemasters (Lemasters) was assigned to orient
Whitney to the office and its procedures. Lemasters testified that he did most
of
the training
of
probationary investigators and served as a mentor and resource to them.
December 2, 2008 Transportation
of
Witness to Blythe Courthouse
On December 2, 2008, Whitney was assigned to pick up a witness at
11
:00 a.m. and
transport her to the Blythe courthouse by 1:00 p.m. When Whitney arrived in the Southwest
office that morning, Mesa asked him to pick up the witness earlier, and told him to ask the
public defender to take the witness out
of
order so Whitney could return her home sooner.
Unable to reach the witness by phone, Whitney picked her up between 10:30 and
11
:00 and
arrived at the courthouse by 1:00. Whitney asked the public defender
if
he could take the
witness out
of
order. The public defender declined, stating that he needed the witness to testify
at the end
of
his case in chief.
The witness did not testify until 5:00 p.m.; her testimony concluded at 5:55 p.m. At the
end of her testimony, both attorneys agreed to release the witness but the judge ordered her to
2

remain at the courthouse subject to recall. Trial resumed at 6:05 p.m., but no further witnesses
were called. Once the judge released the witnesses, Whitney drove the witness home.
Whitney was paid overtime for the additional hours he worked that day.
When Whitney arrived at work the next day, Mesa called Whitney into his office.
Mesa asked Whitney why the public defender did not take the witness out
of
order so that
Whitney could return her home earlier. Whitney replied that he asked the public defender to
do so, but he refused. When Mesa pressed him on the issue, Whitney said he had no control
over the public defender and stated "we can agree to disagree."
Mesa's Draft Performance Evaluation
of
Whitney
Under the County's written policy governing Employee Performance Evaluation
Reports, probationary employees are to be evaluated "at no less than six month intervals until
the expiration
of
their probation." The standard evaluation procedure in LOPD was that the
supervisor would draft the evaluation and send it to Freeman and then Windom for review;
sometimes either would send it back to the supervisor for changes. Once a final version was
agreed upon, Windom, Freeman, and the supervisor would sign the evaluation before it was
presented to the employee.
Mesa testified that he followed a different procedure that he had learned in management
training classes, whereby he would solicit employee input before drafting the employee's
evaluation. In February or early March 2009, Mesa solicited input from Whitney for his six-
month evaluation. Based on Whitney's input and his own observations and materials, Mesa
prepared a draft evaluation, which he presented to Whitney for review on March 30, 2009.
In the category of "Adaptability/Flexibility," Mesa rated Whitney 2.9 (improvement
desired). The comments under that rating began:
Devin is aware of changing circumstances and can usually handle
them with minimal help from his supervisor. However, he
3

sometimes acts without considering the experience
of
his
supervisor or other senior investigators. I[n] one such case he did
not listen to his supervisor about a witness that needed to be
transported to Blyth[ e]. This caused him a day plus overtime.
The reason given was that the
D. A.
would not excuse the
witness. What Devin failed to understand was that it was now the
D. A. who was responsible for transporting the witness. In
discussing the incident with Devin he stated that "we can agree to
disagree" but he never seemed to understand how he could
of
improved upon his decision made. This is not the right attitude to
have and he must understand that others give him advice based
upon their past experiences and failures
of
dealing with
situations.
The comments went on to describe another incident in which a senior investigator who
observed Whitney during a witness interview suggested to him that the interview could have
been shorter while still obtaining the same information. Whitney countered that he disagreed
because he established rapport with the witness. Mesa wrote: "This thought process by Devin
is similar to his thinking that 'we can agree to disagree.'
	If
Devin is not open to listening to
others than [sic] he will never be able to improve upon his way
of
doing investigations."
Mesa rated Whitney as "meets expectations" in all other categories on the review, for
an overall rating
of
3.3. Even though he was not required to do so, Whitney signed the draft
evaluation on March 30, 2009. Soon after, Mesa sent the draft to Freeman for review, but
nonetheless continued to make changes to it.
April
1,
2009 Chapman-Wright Telephone Call
At a training session he was required to attend, Whitney met Thomas Chapman-Wright
(Chapman-Wright), another probationary investigator. Whitney learned that Chapman-Wright
wanted to transfer from the Riverside office to the Southwest office to be closer to home.
During his lunch break on April 1, 2009, Whitney called Chapman-Wright. According
to Whitney, he told Chapman-Wright there were three vacancies in the Southwest office. He
then asked Chapman-Wright ifhe could let Mesa know of Chapman-Wright's interest in a
4

transfer; Chapman-Wright agreed. Whitney then went to Mesa's office and told him that
Chapman-Wright wanted to transfer to the Southwest office.
Chapman-Wright gave a different account
of
the call. According to Chapman-Wright,
Whitney said he had been promoted and would be in charge
of
transferring Chapman-Wright
to the Southwest office and showing him how things worked there. 	Chapman-Wright
responded with surprise because Freeman had told him when he made his transfer request that
no investigators could be moved until the budget had been passed. Whitney responded that the
Southwest office was short three investigators and said the "squeaky wheel gets the grease."
After the call, Chapman-Wright spoke to his supervisor, Steve Judd (Judd), about
Whitney's statements. Judd said he did not know about any transfer, which upset Chapman-
Wright. Judd then called Mesa to see
if
he knew about a transfer. During the call, Judd told
Mesa that Chapman-Wright was upset by Whitney's statements.
Judd then called Freeman and asked
if
Chapman-Wright was to be transferred.
Freeman said there would be no transfer. He instructed Judd to obtain a written statement from
Chapman-Wright; he then instructed Mesa to obtain a written statement from Whitney.
After speaking with Freeman, Mesa called Whitney to his office. When Mesa relayed
Chapman-Wright's version
of
the call, Whitney was surprised. He then asked Mesa for a
conference call to resolve the matter. Mesa declined, saying that was not how things were
done at LOPD. Mesa directed Whitney to prepare a written statement
of
his version
of
the
phone call. 	Whitney testified he then requested union representation, and Mesa denied the
request, saying he was only asking for a written statement. Mesa, on the other hand, testified
that Whitney did not ask for union representation during the meeting. 	Mesa then warned
Whitney to be careful who he talked to as people sometimes have their own agenda.
5

Whitney ran into Lemasters as he left Mesa's office. Whitney asked for Lemasters'
advice regarding Mesa's directive to write up his version
of
the phone call. Lemasters said that
if
he was in that situation, he would contact the union. Whitney then contacted Kathie
Delgado (Delgado), business agent for Laborers International Union
of
North America,
Local 777 (LIUNA), the exclusive representative
of
the bargaining unit including public
defender investigators. Delgado told Whitney to prepare the written statement and to copy her
on it.
Whitney prepared the statement that day and gave it to Mesa the next morning. Per
Mesa's direction, it was addressed to Freeman with copies to Mesa and Delgado; Mesa
testified that he did not notice Delgado's name on the document. During this exchange, Mesa
told Whitney not to talk to other investigators outside
of
the Southwest office. Whitney
responded that he had a constitutional right to talk to anybody. Mesa replied that he could not
tell Whitney whom to talk to, but that
if
he continued to speak to people outside
of
the office,
he would have to write more statements. Freeman reviewed the written statements from
Chapman-Wright and Whitney but took no further action on the matter.
April 24, 2009 Rumor About Eric Martin
In 2008, the County transferred investigator Eric Martin (Martin) from the Southwest
office to the Juvenile Division after several investigators filed a complaint about his behavior.
On or about April 24, 2009, Whitney heard from another County employee that Martin was
being transferred back to the Southwest office. When Whitney returned to the office midday
on April 24, he told Mesa about the rumor. Whitney testified that he shared the rumor with
Mesa so Mesa could dispel it. Mesa told Whitney he should focus on his work and not get
involved in spreading rumors.
6

After this conversation, Mesa phoned Freeman and told him he wanted to release
Whitney on probation. Freeman responded that they needed to bring the issue to Windom so
he could make the final decision.
April 28, 2009 Meeting
On April 28, 2009, Freeman and Mesa met with Windom about ongoing issues with
Martin. After discussing Martin, Mesa recommended that Whitney be released on probation.
Mesa provided Windom with his draft evaluation
of
Whitney. As Windom read through the
comments in the "Adaptability/Flexibility" section, he asked Mesa to elaborate on them;
Windom also made notations on the draft. Windom asked Mesa
if
Whitney's statement that
"we can agree to disagree" indicated Whitney could not take constructive criticism; Mesa said
it did.
When Windom asked about other similar incidents, Mesa described the Chapman-
Wright phone call and Whitney's response to Mesa's instruction not to talk to investigators in
other offices. Windom commented that Whitney's conduct demonstrated a poor attitude and
lack
of
flexibility. 	Mesa then told Windom that Whitney had told him a rumor about Martin's
transfer back to the Southwest office. Mesa said that Whitney would not take direction or
listen to his advice. Mesa did not tell Windom that Whitney had included Delgado as a "cc"
recipient on his written statement about the Chapman-Wright phone call.
Windom testified that Mesa's report concerned him because it would be difficult to
develop an employee who would not listen to his supervisor. He feared that
if
Whitney
showed this behavior as a probationary employee, it would likely worsen once Whitney
became permanent. 	Based on Mesa's report, Windom decided to release Whitney on
probation.
7

On May
1,
2009, Whitney was given a letter signed by Windom releasing him from
probation; the letter did not provide any reason for the release. It also informed Whitney that
under the memorandum
of
understanding (MOU) between the County and LIUNA, he could
not appeal the release.
LIUNA's Involvement in Southwest Office Issues
Prior to Whitney's employment, LIUNA was involved in several matters concerning
investigators in the Southwest office. At some unidentified time, Mesa announced in a staff
meeting that the County was going to change the way it computed overtime. When
investigators questioned the County's interpretation
of
the overtime laws, Mesa told them to
contact human resources or their union. Ultimately, with Windom's permission, LIUNA
business agent Delgado spoke to the investigators about the overtime change. At another
unidentified time, Windom allowed Delgado to participate in meetings about asbestos
abatement that would affect unit members.
In 2006 or 2007, Lemasters, then an Investigator II, was being assigned Investigator III-
level cases. Lemasters inquired several times when the County would administer an
examination for Investigator III; each time he was told "sooner than later." Lemasters
eventually called Delgado, who contacted Windom on Lemasters' behalf. Soon after, the
County administered the Investigator III examination; Lemasters was subsequently promoted
to Investigator III.
As noted above, Martin was an investigator in the Southwest office prior to the start
of
Whitney's employment. Four investigators in the Southwest office, Lemasters, Michael
Izquierdo (Izquierdo), Jack Spencer (Spencer), and Richard Estrada (Estrada), expressed
concerns about Martin's behavior to Mesa. Mesa informed Freeman about the concerns.
Freeman told Mesa to obtain statements from the investigators, which he did. Lemasters
8

testified that sometime during Mesa's investigation
of
the complaints about Martin, he told
Lemasters that Windom looked unfavorably on employees who did not try to handle issues
within the department; Mesa denied making any such statement. When the investigators did
not feel the County was addressing their concerns, they called Delgado for assistance. 	Martin
also contacted Delgado and filed a complaint against the four investigators.
On July 24, 2008, Freeman met with Mesa, Martin, Spencer, Izquierdo, Estrada, and
two other Southwest office investigators.2 Freeman testified that he told the attendees he was
concerned about the impact the Martin complaints were having on the office's work. Estrada
testified that Freeman said LOPD could have handled the matter without LIUNA, but that he
did not interpret this comment as a negative one about the union. Izquierdo testified that he
did not remember Freeman or Mesa mentioning LIUNA during the meeting; both Freeman and
Mesa denied that Freeman had done so. Shortly after the meeting, Martin was transferred to
the Juvenile Division.
At the time
of
the hearing, Lemasters, Estrada and Martin were still employed by the
County as investigators; Estrada had resigned in 2009 but Mesa persuaded him to return a few
months later. Izquierdo resigned from the County for personal reasons. 	Spencer left County
service in November 2008; it is unclear whether he was released on probation or resigned in
lieu
of
release.
2 Lemasters testified he did not attend the meeting because he was on vacation.
9

DISCUSSION
1.
	Exceotions' Comoliance with PERB Regulations
The County argues that Whitney's exceptions fail to comply with PERB Regulation
32300(a), which sets forth the required content for exceptions to an ALJ's proposed decision.3
"Compliance with [PERB Regulation 32300(a)] is required in order to afford the respondent
and the Board an adequate opportunity to address the issues raised." (Temecula Valley Unified
School District (1990) PERB Decision No. 836.) Interpreting similar language in PERB
Regulation 32635(a), the Board found an appeal substantially complied with the regulation
when it sufficiently placed the other party and the Board "on notice
of
the issues raised on
appeal." (State Employees Trades Council United (Ventura, et al.) (2009) PERB Decision
No. 2069-H.) While they are not as lucid as the County may wish, we find that Whitney's
exceptions adequately notify the County and the Board
of
the issues Whitney raises on appeal.
Therefore, his exceptions are in substantial compliance with PERB Regulation 32300(a).
Nonetheless, the exceptions contain allegations for which no evidence was presented
at the hearing, such as statements made to Whitney during his hiring interview and statements
by Lemasters to Whitney about how Mesa liked to "test" new investigators. PERB
3 PERB regulations are codified at California Code
of
Regulations, title 8,
section 31001 et seq. PERB Regulation 32300(a) states, in relevant part:
The statement
of
exceptions or brief shall:
( 1) State the specific issues
of
procedure, fact, law or rationale to
which each exception is taken;
(2) Identify the page or part
of
the decision to which each
exception is taken;
(3) Designate by page citation or exhibit number the portions of
the record, if any, relied upon for each exception;
(4) State the grounds for each exception.
10

Regulation 32300(b) states: "Reference shall be made in the statement
of
exceptions only to
matters contained in the record
of
the case." Because the record contains no evidence to
support these factual allegations, we cannot consider them in our review
of
Whitney's
exceptions. (California State University, San Francisco (1991) PERB Decision No. 910-H.)
2.
	Retaliation
To establish a prima facie case that an employer retaliated against an employee in
violation
of
MMBA section 3506 and PERB Regulation 32603(a),4 the charging party must
show that: 	(1) the employee exercised rights guaranteed by the MMBA; (2) the employer had
knowledge
of
the employee's exercise
of
those rights; (3) the employer took an adverse action
against the employee; and (4) the employer took the adverse action because
of
the employee's
exercise
of
guaranteed rights. (Santa Clara County Counsel Attorneys Assn.
v.
Woodside
(1994) 7 Cal.4th 525, 555-556; Novato Unified School District (1982) PERB Decision
No. 210.)5
a. 	Protected Activity
On April
1,
2009, Whitney phoned Delgado for advice about Mesa's directive that he
provide a written statement
of
his version
of
the phone conversation with Chapman-Wright.
Delgado responded that Whitney should write the statement and include her as a recipient.
Whitney included Delgado's name on the "cc" line
of
his written statement to Freeman.
Seeking the assistance
of
the exclusive representative in connection with a workplace issue is
4 Under PERB Regulation 32603(a), it is an unfair practice for a public agency to
"[i]nterfere with, intimidate, restrain, coerce or discriminate against public employees because
of their exercise of rights guaranteed by Government Code section 3502 or by any local rule
adopted pursuant to Government Code section 3507."
5 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
11

protected activity. (County
of
Riverside (2009) PERB Decision No. 2090-M.) Thus, this
conduct by Whitney was protected under the MMBA.
An employee's request for union representation during a meeting with management is
also protected activity. (City
of
Modesto (2009) PERB Decision No. 2022-M; Barstow Unified
School District (1996) PERB Decision No. 1164.) Whitney testified that he requested union
representation during the April
1,
2009 meeting in which Mesa instructed Whitney to prepare
the written statement, and that Mesa denied the request. Mesa denied that Whitney requested
union representation during the meeting. Based on Whitney's subsequent phone call to
Delgado, the ALJ concluded it was "more likely than not that Whitney requested a
representative and was denied one."
"[W]hile the Board will afford deference to the [ALJ'
s]
findings
of
fact which
incorporate credibility determinations, the Board is required to consider the entire record,
including the totality
of
testimony offered, and is free to draw its own and perhaps contrary
inferences from the evidence presented." (Santa Clara Unified School District (1979) PERB
Decision No. 104.) Here, the ALJ made no determination that Whitney's testimony about the
April
1,
2009 meeting was more credible than Mesa's. Rather, the ALJ's finding that Whitney
requested union representation was based solely on Whitney's later call to Delgado, which the
ALJ concluded made it "more likely than not that Whitney requested a representative and was
denied one." This finding, however, fails to account for Lemasters' testimony that when he
spoke with Whitney immediately following the meeting with Mesa, he advised Whitney to ask
for union representation
if
he believed any negative consequences could result from writing the
statement. Since the record contains no evidence that Whitney was aware he could or should
seek union representation before speaking with Lemasters, we find that the evidence did not
12

establish that Whitney requested union representation during the April
1,
2009 meeting
with
Mesa.
b. 	Employer's Knowledge
of
Protected Activity
As found above, Whitney engaged in activity protected by the MMBA when he phoned
Delgado for advice about
Mesa's
directive to prepare a written statement and included her
name on the statement as a recipient. There is no evidence in the record that Mesa knew about
Whitney's phone call to Delgado. However, Delgado's name appears directly below
Mesa's
on the "cc" line
of
Whitney's written statement to Freeman about the Chapman-Wright phone
call. Mesa testified that, although he knew Delgado was a LIUNA representative, he
"overlooked" her name on the statement when he received it. In light
of
the fact that
Delgado's name was directly below Mesa's, we find this testimony unpersuasive.
Accordingly, we find that Mesa had knowledge
of
Whitney's protected activity.
Freeman testified that he read Whitney's written statement about the Chapman-Wright
phone call and that he had known Delgado as a LIUNA representative for approximately ten
years. Because it is highly likely that Freeman noticed Delgado's name in the "cc" line
of
the
statement, we find that he knew
of
Whitney's protected activity. Finally, although Windom
also knew Delgado was a LIUNA representative, he never saw Whitney's written statement.
Further, Mesa testified that he did not mention Delgado's involvement to Windom. Thus, we
find that Windom did not know about Whitney's protected activity.
c. 	Adverse Action
PERB has long held that the release
of
a probationary employee is an adverse action.
(California State University, Fresno (1990) PERB Decision No. 845-H.) Thus, the County
took adverse action against Whitney when it released him on May 1, 2009.
13

d.
	Nexus Between Protected Activity and Adverse Action
"Unlawful motive is the specific nexus required in the establislunent
of
a prima facie
case
....
	Unlawful motive can be established by circumstantial evidence and inferred from the
record as a whole." (Trustees
of
the California State University
v.
Public Employment
Relations
Bd.
(1992) 6 Cal.App.4th 1107, 1124.) To guide its examination
of
circumstantial
evidence
of
unlawful motive, PERB has developed a set
of
"nexus" factors that may be used to
establish a prima facie case. Although the timing
of
the employer's adverse action in close
temporal proximity to the employee's protected conduct
is
an important factor (North
Sacramento School District (1982) PERB Decision No. 264), it does not, without more,
demonstrate the necessary nexus between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing
one or more
of
the following additional factors must also be present:
	(I)
the employer's
disparate treatment
of
the employee (State ofCalffornia (Department a/Transportation)
(1984) PERB Decision No. 459-S); (2) the employer's departure from established procedures
and standards when dealing with the employee (Santa Clara Unified School District, supra);
(3) the employer's inconsistent or contradictory justifications for its actions (State
of
California (Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the
employer's cursory investigation
of
the employee's misconduct (City
of
Torrance (2008)
PERB Decision No. 1971-M; Coast Community College District (2003) PERB Decision
No. 1560); (5) the employer's failure to offer the employee justification at the time it took
action (Oakland Unified School District (2003) PERB Decision No. 1529) or the offering of
exaggerated, vague, or ambiguous reasons (McFarland Unified School District (1990) PERB
Decision No. 786); (6) employer animosity towards union activists (Jurupa Community
Services District (2007) PERB Decision No. 1920-M; Cupertino Union Elementary School
14

District (1986) PERB Decision No. 572); or (7) any other facts that might demonstrate the
employer's unlawful motive. (North Sacramento School District, supra; Novato Unified
School District, supra.)
Windom was unaware
of
Whitney's protected activity at the time he made the decision
to release Whitney on probation. Thus, Windom could not have been motivated by Whitney's
protected activity. Nonetheless, Windom based his decision solely on Mesa's
recommendation, and Mesa knew that Whitney had sought LIUNA's assistance in the
Chapman-Wright matter. These facts present a classic scenario that triggers application
of
the
subordinate bias liability theory. 	Under this theory, a supervisor's unlawful motive may be
imputed to the decisionmaker when: (1) the supervisor's recommendation, evaluation, or
report was motivated by the employee's protected activity; (2) the supervisor intended for his
or her conduct to result in an adverse action; and (3) the supervisor's conduct caused the
decisionmaker to take adverse action against the employee. (Staub
v.
Proctor Hospital (2011)
131
S.Ct. 1186, 1194; Reeves, supra,
121
Cal.App.4th at p. 116; State
of
California
(Department
of
Parks and Recreation), supra, PERB Decision No. 328-S.) Because Mesa
admitted that he intended for his recommendation to result in Whitney's release on probation,
and it actually caused that result, we need only determine whether Whitney's protected activity
was a motivating factor in Mesa's recommendation.
Whitney's protected activity occurred on April
1,
2009. Mesa recommended to
Windom that Whitney be released on probation on April 28, 2009. The closeness in time
between Whitney's protected activity and Mesa's recommendation supports an inference
of
unlawful motive. However, Whitney has failed to establish any other factors that would
support such an inference.
15

Whitney argues that the County departed from established procedures when it failed to
give him a three-month performance evaluation, which he claims would have given him the
opportunity to correct the deficiencies Mesa used as the basis for his release on probation. 	The
County's written performance evaluation policy requires evaluation
of
probationary employees
"at no less than six month intervals." The record does not establish that the County or LOPD
had a practice
of
giving probationary employees a three-month evaluation. Consequently,
Whitney has not shown that the County departed from established procedures.
Whitney also contends that LOPD conducted a cursory investigation
of
his alleged
misconduct because neither Freeman nor Windom investigated the incidents Mesa relied upon
for his recommendation. A decisionmaker's reliance on reports by subordinates does not
constitute a cursory investigation unless the decisionmaker had reason to believe the reports to
be biased or inaccurate. 	(Escondido Union Elementary School District (2009) PERB Decision
No. 2019.) Nothing in the record demonstrates that Windom had any reason to believe Mesa's
reports were not truthful; indeed, Windom testified that he trusted Mesa to provide him with
accurate information. Additionally, Mesa's recommendation was based on statements Whitney
made in conversations with him after each
of
the three incidents, not on the incidents
themselves. Thus, an investigation into the substance
of
the incidents would not have
addressed the actual reasons for Mesa's recommendation.
Even so, Freeman or Windom could have asked Whitney about his version
of
the
conversations with Mesa. 	Yet an employer's failure to interview an employee in connection
with a disciplinary matter evidences unlawful motive only when the employer routinely
interviews employees under such circumstances. (State
of
California (Department
of
Health
Services) (1999) PERB Decision No. 1357-S.) Here, there is no evidence that LOPD or the
County regularly interviewed probationary employees before releasing them. 	Moreover, in his
16

hearing testimony Whitney did not dispute the substance
of
his conversations with Mesa
following each
of
the incidents, and in fact admitted that he made the statements that most
troubled Mesa. Accordingly, we find that Freeman's and Windom's failure to investigate
Mesa's reasons for recommending Whitney's release on probation does not support an
inference
of
unlawful motive.
Although he hardly mentions the issue in his exceptions, Whitney spent considerable
time at the hearing attempting to establish that LOPD management harbored animus toward
employees who used union representation. Lemasters, Estrada, and Izquierdo testified there
was a general feeling among Southwest office investigators that management frowned upon
them using union representation. However, neither Estrada nor Izquierdo could recall any
statements to that effect by LOPD management. Lemasters also had difficulty recalling
management statements about not using union representation; the only specific statement he
could recall was that, during the investigation
of
the Martin complaint, Mesa told him that
Windom liked employees to resolve issues within the department. Izquierdo testified that
Freeman made a similar comment during the July 24. 2008 meeting about the Martin issue; yet
neither he nor any other attendee recalled Freeman or Mesa mentioning LIUNA during the
meeting. Furthermore, the record shows that LOPD was responsive to LIUNA once it became
involved in investigator issues and that no investigator had been treated adversely as a result
of
LIUNA involvement. These facts do not establish that LOPD management held animus
toward union representation.
Finally, although not raised in the exceptions, we note that the County failed to give
Whitney a reason for his release on probation. The May 1, 2009 letter merely informed him of
his release and said that he could not appeal the release under the LIUNA MOU. An
employer's failure to give an "at will" employee a reason for dismissal does not indicate
17

unlawful motive in the absence
of
evidence that the employer was required by policy or past
practice to do so. (Sacramento City Unified School District (2010) PERB Decision No. 2129.)
Here, Lemasters testified that it was the County's practice not to give any reason when an
employee was released on probation. Thus, its failure to give Whitney a reason for his release
does not indicate unlawful motive.
In sum, Whitney has not shown that his protected activity
of
seeking assistance from
LIUNA was a motivating factor in Mesa's decision to recommend his release on probation.
Accordingly, he has failed to establish a prima facie case
of
retaliation.
e.
	The County's Affirmative Defense
Assuming for the sake
of
argument that Whitney had established a prima facie case
of
retaliation, we nonetheless would conclude that the County proved it would have rejected
Whitney on probation despite his protected activity
of
seeking LIUNA's assistance.
Once a prima facie case is established, the employer bears the burden
of
proving it would
have taken the adverse action even
if
the employee had not engaged in protected activity.
(Novato Unified School District, supra, PERB Decision No. 210; Martori Brothers Distributors
v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line (1980) 251
NLRB 1083, 1089.) Thus, when it appears that the adverse action was motivated by both valid
and invalid reasons, "the question becomes whether the [adverse action] would not have
occurred 'but for' the protected activity." (Martori Brothers Distributors, supra, 29 Cal.3d at
p. 729.) The "but for" test is "an affirmative defense which the employer must establish by a
preponderance of the evidence." (McPherson
v.
Public Employment Relations Bd. (1987)
189 Cal.App.3d 293, 304.)
When conducting the "but for" analysis, the proper inquiry is whether the employer's
true motivation for taking the adverse action was the employee's protected activity. (Regents
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of
the University
of
California (1993) PERB Decision No. 1028-H.) In making this
determination, "PERB weighs the employer's justifications for the adverse action against the
evidence
of
the employer's retaliatory motive." (Baker Valley Unified School District (2008)
PERB Decision No. 1993.) Once PERB determines that the employer did not take action for
an unlawful reason, its inquiry is at an end; PERB has no authority to determine whether
adverse action not motivated by protected activity was just or proper. (Regents
of
the
University
of
California, supra; San Ysidro School District (1980) PERB Decision No. 134.)
Mesa's recommendation to release Whitney on probation was based on: (1) Whitney's
failure to follow his directions during the witness transport to Blythe and his statement the next
day that "we can agree to disagree"; (2) Whitney's statement following the Chapman-Wright
incident that he has the right to speak with anyone; and (3)Whitney's relation
of
the Martin
transfer rumor to Mesa despite Mesa's instructions not to become involved with employees
outside
of
the Southwest office. Mesa testified that these incidents caused him to doubt
Whitney's ability to develop as an investigator. On the other hand, Whitney's protected
activity
of
listing Delgado as a "cc" recipient on his written statement regarding the Chapman-
Wright conversation is relatively minor in nature. Thus, we conclude that Whitney's protected
activity was not the true motivation for Mesa's recommendation. Accordingly, the County
proved it would have released Whitney on probation even
if
he had not sought LIUNA's
assistance regarding the April
1,
2009 written statement.
ORDER
The complaint and underlying unfair practice charge 	Case No. LA-CE-541-M are
hereby DISMISSED.
Chair Martinez and Member McKeag joined in this Decision.
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