San Diego Community College District (PERB 2625E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOY MENT RELATIONS BOARD

SCOTT DOUGLAS,
Charging Party, Case No. LA-CE-5972-E
v. PERB Decision No. 2625
SAN DIEGO COMMUNITY COLLEGE February 20, 2019
DISTRICT,
Respondent.

Appearances: Scott Douglas, on his own behalf; Best Best & Kreger by Joseph Sanchez,
Attomey, for San Diego Community College District.

Before Banks, Shiners, and Krantz, Members.
DECISION

SHINERS, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Scott Douglas (Douglas) to the attached proposed decision
of an administrative law judge (ALJ), which dismissed the complaint and Douglas’ unfair
practice charge against the San Diego Community College District (District). The complaint
alleged that the District violated the Educational Employment Relations Act (EERA or Act)!
by subjecting Douglas to an extra and unnecessary performance evaluation in Spring 2014, and
not offering him an adjunct teaching assignment in Fall 2014, because he pursued a class
assignment preference under the collective bargaining agreement (CBA) with the assistance of
his union. Following an evidentiary hearing, the ALJ dismissed the complaint, finding that

although there was evidence suggesting the District acted because of Douglas’ protected

' EERA is codified at Govemment Code section 3540 et seq. All statutory references
are to the Government Code unless otherwise indicated.

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activity, the District nonetheless proved that it would have taken the same actions in the
absence of his protected activity.
Based on our review of the proposed decision, the entire record, and relevant legal
authority in light of the parties’ submissions, we conclude that the ALJ’s factual findings are
supported by the record and, except as noted below, her conclusions of law are well-reasoned
and consistent with applicable law. We therefore adopt the proposed decision as the decision
of the Board itself, except for its discussion of Douglas’ Spring 2014 performance evaluation
at pages 22 through 26, and as supplemented by the following discussion.
BACKGROUND2
Beginning in the 2007-2008 school year, a hiring freeze was in place under which the
District would not replace full-time faculty who retired or left the District. During the freeze,
the Mathematics Department at the District’s Miramar College (Department) had to hire
several adjunct instructors (adjuncts) because mathematics is a requirement for every student
in every degree and certificate program.
In 2011, Douglas started working as an adjunct in the Department. He taught evening
classes because he had a full-time job during the day. Beginning in Fall 2013 and at all
relevant times thereafter, Francois Bereaud (Bereaud) was the chair of the Department, and
Paulette Hopkins (Hopkins) was the Dean of the School of Mathematics, Biological, Exercise
& Physical Sciences.
When Bereaud became chair, the Department had only three full-time faculty, down
from ten about four years prior. Two days before the Fall 2013 semester started, the chancellor
2 We summarize the material facts here to provide context for our discussion. A full
recitation of the facts and procedural history can be found in the attached proposed decision.
2

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announced the District’s hiring freeze was being lifted. The School of Mathematics,
Biological, Exercise & Physical Sciences received the first ten positions for hiring. With more
full-time faculty on the way, the Department had less need for adjuncts.
On November 20, 2013, Douglas requested Priority of Assignment (POA) status under
the CBA. Adjuncts with POA status receive priority over other adjuncts, but not full-time
faculty, to teach classes listed in their POA documents. Pursuant to the CBA, the list of classes
must include classes the adjunct is teaching at the time of the POA request, and may include
other classes approved by the appropriate manager.
On December 18, Douglas met with Hopkins to discuss his POA request. Douglas was
unhappy with how the meeting progressed and told Hopkins he needed to contact his union
before proceeding. Douglas then contacted his union, American Federation of Teachers Guild,
Local 1931 (AFT), and was assigned AFT grievance officer Darrell Harrison (Harrison).3
Harrison interacted with Bereaud by e-mail to arrange another POA meeting.
On January 13, 2014, the Department hired four full-time faculty members.
Meanwhile, Bereaud felt the Department had not done enough evaluations during the hiring
freeze and decided to evaluate faculty in two or three consecutive semesters.
On February 4, Douglas received an e-mail stating he was to be evaluated. Douglas
e-mailed Bereaud that since he had been evaluated in the prior semester, he did not believe he
was due to be evaluated again. Bereaud responded:
With more full-timers on board to help, I am implementing a
policy where we evaluate all new part timers in each of their first
two or three semesters. Although you are not new, your first ever
evaluation was last semester, hence my request.
3 Harrison was also the chair of the Business Department at Miramar College.
3

On February 19, Douglas, Harrison, Bereaud, and Hopkins met about the POA request.
Hopkins offered to put two classes on Douglas’ POA list, but no more. Douglas argued that
refusing to consider more classes violated the spirit of the CBA, and he pushed for more
classes to be added to his POA list. Harrison asked to speak to Douglas alone and
recommended he accept the offer, but once they returned to the meeting, Douglas stated he
needed to consult with his union further before he would agree with what was offered.
On March 6, Hopkins approached Douglas and told him that since he had applied for
POA, she wanted Bereaud, as department chair, to evaluate him. Douglas said he would
consider it and e-mailed Hopkins on March 12, asking why he was being evaluated at that
time. Hopkins responded the next day:
As Francois and I stated earlier, the department is behind in
completing evaluations. We have been remiss in your evaluation
process because you have only one evaluation in your file since
your hire date in 2011. Miramar is striving to stay current with
evaluations for accreditation purposes. Specifically, all adjuncts
in the department who are applying for a POA assignment for the
first time are evaluated as standard process. Thus, as a POA
applicant, you and all other first time POA applicants in the
department have been assigned as peer evaluator, the Department
Chair, Francois Bereaud.
Douglas was evaluated on April 10 and the result was a positive review. On or about
April 22, he received a Priority Assignment Application form with Hopkins’ signature that
showed POA status for the two classes previously offered by Hopkins.
On April 24, Douglas e-mailed Bereaud for information about his course assignment
for the fall semester. Bereaud replied that he was still working on the schedule and was
uncertain when he would have an answer for Douglas. On May 13, Douglas e-mailed Bereaud
for an update. On May 14, Hopkins e-mailed Douglas to notify him that the Department did
not have an assignment for him in Fall 2014.
4

Douglas was one of at least twelve adjuncts in the Department who did not receive an
assignment for Fall 2014. Two additional full-time faculty began teaching in the Fall 2014
semester. Both of the classes on Douglas’ POA list were assigned to full-time faculty that
semester.
DISCUSSION
To establish a prima facie case that an employer has discriminated or retaliated against
an employee in violation of EERA section 3543.5, subdivision (a), the charging party must
show that: (1) the employee exercised rights under EERA; (2) the employer had knowledge of
the employee’s exercise of those rights; (3) the employer took adverse action against the
employee; and (4) the employer took the adverse action because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210, pp. 6-8 (Novato).)
Once the charging party establishes a prima facie case, the burden shifts to the
employer to prove it would have taken the same adverse action even if the employee had not
engaged in protected activity. (Novato, supra, PERB Decision No. 210, p. 14; Martori
Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730;
Wright Line (1980) 251 NLRB 1083, p. 10.) To prevail, the employer must show that it had an
alternative non-discriminatory reason for taking the adverse action and that it acted because of
this alternative non-discriminatory reason, not because of the employee’s protected activity.
(Palo Verde Unified School District (2013) PERB Decision No. 2337, pp. 12-13.)
The primary issue raised by the exceptions is whether the District met its burden to
prove that, despite Douglas’ protected activity, it would have evaluated him for a second
5

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consecutive semester in Spring 2014 and would not have offered him a teaching assignment in
Fall 2014.4 We address each action below.
1. 	The Spring 2014 Evaluation
The ALJ found the District met its burden to show it evaluated Douglas in Spring 2014
for non-discriminatory reasons because the evidence showed the Department was catching up
on delayed evaluations, which led to the evaluation of other adjuncts in the same consecutive
semesters. In his exceptions, Douglas argues the District did not meet its burden because he
was not similarly situated with other adjunct faculty who received an accelerated evaluation
that semester.
Before turning to Douglas’ argument, we address the ALJ’s conclusion that the Spring
2014 evaluation was an adverse action.5 PERB uses an objective test to decide whether an
employer’s action is adverse to an employee. (Santa Clara Valley Water District (2013) PERB
Decision No. 2349-M, pp. 28-29.) The question is “whether a reasonable person under the
same circumstances would consider the action to have an adverse impact on the employee’s
employment.” (Jurupa Unified School District (2013) PERB Decision No. 2309, p. 8
(emphasis added); Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12.)
In finding Douglas’ Spring 2014 evaluation was an adverse action, the ALJ relied on
Jurupa Unified School District (2012) PERB Decision No. 2283 (Jurupa I) and Jurupa Unified
4 Douglas also faults the ALJ for declining to resolve the parties’ competing
interpretations of the CBA language regarding POA status. The proposed decision properly
and adequately addressed the parties’ arguments on this point and the Board need not further
analyze them. (City of Calexico (2017) PERB Decision No. 2541-M, pp. 1-2.)
5 Although not argued by either party in its submissions, we address this issue sua
sponte to prevent the ALJ’s erroneous ruling from becoming Board precedent. (State
Employees Trades Council United (Ventura, et al.) (2009) PERB Decision No. 2069-H,
pp. 6-7; ABC Unified School District (1991) PERB Decision No. 831b, p. 4.)
6

School District (2015) PERB Decision No. 2458 (Jurupa II). In Jurupa I, the Board held that
evaluating a permanent certificated employee in two consecutive school years was an adverse
action because, in the circumstances of that case, it signaled a performance deficiency.
(Jurupa I, supra, PERB Decision No 2283, pp. 18-19.) The Board noted that under the
applicable CBA and Education Code section 44663, subdivision (a)(2), the typical evaluation
cycle was bi-annual. (Ibid.) In that environment, the Education Code establishes a “uniform
system of evaluation” of certificated employees where permanent employees receive an
evaluation at least every other year and an annual evaluation schedule is reserved for
probationary employees and those permanent employees who have received an unsatisfactory
evaluation. (Id. at p. 18.) The Board also emphasized the statutory standard was incorporated
into the parties’ CBA. (Ibid.) As a result, the Board concluded that requiring a consecutive
year evaluation of a permanent employee treats the employee as though she were probationary
and signals a performance deficiency. (Id. at p. 19.) Thus, it functions as the equivalent of an
unsatisfactory evaluation. (Ibid.)
In Jurupa II, the Board affirmed its holding in Jurupa I. (Jurupa II, supra, PERB
Decision No. 2458, p. 15.) The Board explained that in Jurupa I, a consecutive annual
evaluation was an adverse action because it was “[o]nly in exceptional circumstances” that an
employee was subject to consecutive annual evaluations. (Id. at pp. 15-16.) Since the “default
evaluation cycle for permanent certificated employees who are performing satisfactorily is
every two years,” a more frequent evaluation schedule singled out the employee for treatment
reserved for performance deficiencies. (Ibid.) Thus, in those circumstances, a reasonable
person would consider a consecutive annual evaluation to have an adverse impact on their
employment.
7

Jurupa I and Jurupa II are distinguishable. The Education Code does not create the
same system of evaluation for community college faculty as it does for certificated employees
in elementary and secondary education. (Compare Ed. Code §§ 87660-87664 with §§ 44660-
44664.) As noted above, under Education Code section 44664, subdivision (a)(2), the regular
evaluation cycle for certificated employees is bi-annual, i.e., every other year. Subdivision (b)
of that section, however, mandates annual evaluations of an employee who “has received an
unsatisfactory evaluation . . . until the employee achieves a positive evaluation or is separated
from the district.” Subdivision (b) was the basis for the Board’s holding in Jurupa I that,
under this system, “a consecutive annual evaluation is the functional equivalent of an
unsatisfactory evaluation, and thus adverse.” (Jurupa I, supra, PERB Decision No. 2283,
p. 19.)
Education Code section 87663, subdivision (a), sets out a different system governing
the frequency of evaluations for community college faculty:
Contract employees shall be evaluated at least once in each
academic year. Regular employees shall be evaluated at least
once in every three academic years. Temporary employees shall
be evaluated within the first year of employment. Thereafter,
evaluation shall be at least once every six regular semesters, or
once every nine regular quarters, as applicable.
(Emphasis added.) The parties’ CBA tracks this provision in that it requires the District to
evaluate each adjunct at least once every six semesters. Unlike Education Code section 44663,
section 87663 and the parties’ CBA contain no language requiring more frequent evaluations
of a faculty member who has received an unsatisfactory evaluation. Consequently, we
examine all surrounding circumstances to determine whether the District took adverse action
by evaluating Douglas more frequently than once every six semesters.
8

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The undisputed evidence shows the Department’s practice is to schedule a new
evaluation whenever an adjunct requests POA for the first time.6 Nirmala Kashyap (Kashyap),
who applied for POA at the same time as Douglas, was also evaluated in Spring 2014, less than
six semesters after her prior evaluation in Fall 2012. Far from suggesting a performance
deficiency, an early evaluation in these circumstances signaled the adjunct was merely
undergoing an evaluative process related to an important contractual protection for adjuncts.
Thus, a reasonable person in these circumstances would not consider Douglas’ consecutive
semester evaluation adverse.
But even if we were to treat Douglas’ Spring 2014 evaluation as an adverse action, we
still would find that the District proved it would have evaluated him then regardless of his
protected activity. Douglas was one of at least seven adjunct faculty members in the
Department who were evaluated ahead of schedule in Spring 2014 as part of a new policy to
capitalize on having “more full-timers on board to help” evaluate adjuncts and to catch up on
evaluations that backlogged during the hiring freeze. Indeed, at least six other adjuncts were
evaluated in both Fall 2013 and Spring 2014, just as Douglas was. Douglas argues he was not
similarly situated to these other evaluated adjuncts because they were all newly hired for the
Fall 2013 semester. The evidence is inconclusive as to when most of these adjuncts were
hired. Nonetheless, among them was Kashyap, who had taught every semester since Fall 2010,
and received her prior evaluation in Fall 2012. Thus, contrary to Douglas’ argument, he was
similarly situated to other adjunct faculty who received early evaluations in Spring 2014. This
fact, coupled with the Department’s undisputed practice of evaluating adjuncts again at the
6 The Department was not alone in this practice: Harrison testified, “as a chair, I would
do an evaluation of anyone who just requested POA.”
9

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time they apply for POA status, demonstrates the Department would have evaluated Douglas in
Spring 2014 regardless of his protected activity. We thus affirm the ALJ’s conclusion that the
District satisfied its burden to prove it evaluated Douglas in Spring 2014 for a non-
discriminatory reason.
2. 	No Class Assignment for Fall 20147
The ALJ found the District met its burden to show it would not have offered Douglas a
teaching assignment for Fall 2014 even if he had not engaged in protected activity. In his
exceptions, Douglas asserts he was at least as qualified as other adjuncts who received
assignments in Fall 2014, implying that the District’s reasons for hiring them over him were
pretextual.
As the ALJ noted, the undisputed evidence at the hearing showed that Bereaud selected
the best adjuncts for the needs of the students and demands of each course for each adjunct
assignment. While we need not address an argument where, as here, the proposed decision
adequately addresses it (City of Calexico, supra, PERB Decision No. 2541, p. 12), we
supplement the ALJ’s analysis by noting that in his exceptions, Douglas raises no specific
critique of Bereaud’s method and agrees the selected adjuncts were qualified. Nor does
Douglas explain how the evidence before us shows that he was more qualified for any
7 In his exceptions, Douglas also argues the District did not give him an assignment in
Spring 2015 for unlawful reasons. However, no allegation concerning Spring 2015 appears in
the complaint or the unfair practice charge, and Douglas did not move to amend the complaint
to include such an allegation. Nor does the record show that Douglas put the District on notice
that he intended to litigate the Spring 2015 class denial or that the parties fully litigated that
issue at the hearing. Indeed, the e-mail on which Douglas relies for this argument was
admitted into evidence over the District’s relevance objection based on the complaint not
including an allegation of adverse action in Spring 2015. Accordingly, we cannot consider
Douglas’ claim of an unlawful denial of a class assignment in Spring 2015 under our unalleged
violation doctrine. (County of Santa Clara (2017) PERB Decision No. 2539-M, pp. 14-18.)
10

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particular class than any of the adjuncts who were selected instead of him.8 We thus find no
basis to discredit the District’s evidence that it selected the most qualified adjuncts for the
courses available in Fall 2014.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5972-E are
DISMISSED.
Members Banks and Krantz joined in this Decision.
8 The proposed decision cites Bellevue Union Elementary School District (2003) PERB
Decision No. 1561, p. 4 (Bellevue), for the proposition that “it is within the discretion of an
employer to select those employees it considers to be the most superior for its program.”
(Proposed decision, p. 39.) But Bellevue merely held that where an employer had an across-
the-board policy of granting tenure only to probationary teachers rated as “superior,” and
followed that policy with regard to two teachers who engaged in protected activity, the
employer proved it denied the teachers tenure for a non-discriminatory reason. (Jurupa II,
supra, PERB Decision No. 2458, p. 24; Oakland Unified School District (2007) PERB
Decision No. 1880, adopting proposed decision, at p. 70, fn. 27.) We therefore do not read
Bellevue as broadly as the proposed decision suggests.
11

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SCOTT DOUGLAS,
Charging Party,
v.
SAN DIEGO COMMUNITY COLLEGE
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5972-E
PROPOSED DECISION
(February 24, 2017)
Appearances: Scott Douglas, on his own behalf; Best, Best & Krieger by Joseph Sanchez,
Attorney, for San Diego Community College District.
Before Valerie Pike Racho, Administrative Law Judge.
INTRODUCTION
An adjunct Mathematics instructor alleges in this case that his community college
district employer subjected him to an off-cycle performance evaluation and failed to offer him
a course assignment because he requested help from his union regarding enforcement of a
contractual procedure that creates seniority among adjunct instructors. The employer denies
any statutory violation, arguing that the employee’s performance evaluation was in accord with
the contract and the lack of course assignment was for legitimate business reasons that were
unrelated to the employee’s protected conduct.
PROCEDURAL HISTORY
On October 1, 2014, Scott Douglas filed an unfair practice charge with the Public
Employment Relations Board (PERB or Board) against the San Diego Community College

________________________
District (District) alleging retaliation for protected activities in violation of the Educational
Employment Relations Act (EERA) section 3543.5, subdivision (a).1
On November 3, 2014, the District responded to the allegations in the charge through a
position statement.
On November 16, 2015, Douglas withdrew from the charge an allegation that the
District had attempted to coerce him to abandon his request to obtain priority in teaching
assignments. That same day, the PERB Office of the General Counsel issued a complaint
alleging that the District violated the above section of EERA by requiring Douglas to undergo
an “extra and unnecessary” performance evaluation and by failing to rehire him to teach any
courses for the Fall 2014 semester.
On December 3, 2015, the District filed its answer to the complaint, denying any
substantive violation of EERA and raising various affirmative defenses, including that the
charge is untimely under the applicable statute of limitations.
On February 2, 2016, an informal settlement conference was held but the disputed
matters were not resolved and the case was thereafter scheduled for formal hearing to
commence in June 2016.
On June 17, 2016, a pre-hearing conference was held to resolve certain issues that had
arisen over Douglas’s request for the issuance of subpoenas and the availability of witnesses.
The hearing was rescheduled for September 2016.
On September 26 through 28, 2016, the formal hearing was held.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.
2

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By December 5, 2016, the parties had filed closing briefs with PERB. At that time, the
record was closed and the case was submitted for decision.
FINDINGS OF FACT
Jurisdiction
The District admits that it is a public school employer within the meaning of EERA
section 3540.1, subdivision (k), and therefore under PERB’s jurisdiction. At all relevant times
in this matter, Douglas was a public school employee within the meaning of EERA section
3540.1, subdivision (j).
Background
The District is composed of three colleges—Mesa College, Miramar College, and San
Diego City College—and a division of Continuing Education, which function independently
from each other and have separate administrations. Douglas began employment with the
District in 2003 as an adjunct instructor teaching Mathematics at Mesa College. He possesses
a Master’s degree in Mathematics. In 2011, Douglas left Mesa and began teaching at Miramar
College. Adjunct faculty are represented in their employment relations with the District by
American Federation of Teachers Guild, Local 1931 (AFT). AFT also represents the District’s
full-time, “contract” faculty. AFT and the District are parties to a collective bargaining
agreement (CBA) that was in effect during all relevant times. Adjunct faculty are generally
considered under the CBA and Education Code to be temporary, at-will employees who have
no re-employment rights absent certain contractual conditions being met as discussed further
below.2
2 See CBA, Article V, section 5.1; Education Code, section 87482.5, subdivision (a), in
relevant part:
3

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During his time at Miramar, Douglas taught five different Mathematics courses: Math
121 (Spring 2011), Math 46 (Fall 2011 and Spring 2012), Math 38 (Fall 2012), Math 151
(Spring 2013 and Spring 2014), and Math 252 (Fall 2013). Higher-level Mathematics courses,
such as those suitable for students majoring in the subject, are numbered 100 and above, and
lower-level Mathematics courses are numbered under 100. Adjunct instructors complete a
form for each upcoming semester indicating the times that they are available to teach. The
adjunct instructor also states courses that he or she has previously taught and those that he or
she is “willing to teach.” Douglas has a full-time, non-teaching job during the day so he
always noted on these availability forms that he was only available to teach evening classes.
Douglas also stated on the forms, including the one he submitted for Fall 2014, that he was
willing to teach any course, but his preference was always for higher-level courses.3
The department chair, who is included in AFT’s bargaining unit, is responsible, among
other things, for creating the course schedule and recommending the faculty to be assigned to
teach each course. The dean then has final approval over the schedule and faculty course
assignments. As a threshold matter, courses are assigned under the following hierarchy based
on the employment status of the instructor: (1) contract faculty; (2) “overload” contract
Notwithstanding any other law, a person who is employed to
teach adult or community college classes for not more than 67
percent of the hours per week considered a full-time assignment
for regular employees having comparable duties shall be
classified as a temporary employee, and shall not become a
contract employee under Section 87604.
3 Douglas stated on the Fall 2014 teaching availability form under the heading “Courses
Willing to Teach”: “Any but I prefer college level; would be nice to do 150, 104, 118, 119, or
141; but only one.”
4

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faculty;4 (3) “pro-rata” faculty;5 (4) adjunct faculty with priority of assignment (POA); and (5)
adjunct faculty without POA. The POA process is central to the dispute in this case and will
be discussed in detail below.
It is undisputed that the Mathematics department at Miramar prefers that contract
faculty teach all courses, but especially higher-level courses. There was a shortage of contract
faculty in the department starting in 2008 due to the imposition of a District-wide hiring freeze
responding to the budget crisis in California that commenced around that time. The hiring
freeze prevented the District from hiring new contract faculty, even to replace those who had
retired or otherwise left employment. As a result, adjunct faculty were heavily relied upon.
The hiring freeze was lifted in 2013, allowing the Miramar Mathematics department to begin
filling vacant full-time faculty positions. In the Fall 2013 semester, the department had only
three contract faculty. During the following semester (Spring 2014), the department hired four
new tenure-track contract faculty, and then two more contract faculty were hired for the Fall
2014 semester. During Fall 2013, there were 33 adjunct faculty teaching 62 course sections in
the department. By Fall 2014, there were only 21 adjunct faculty teaching 34 course sections
in the department.
Priority of Assignment
The CBA at Article V covers certain terms and conditions of employment specific to
adjunct faculty. Section 5.2.1.1 provides that, ordinarily, adjunct faculty should not have an
annual FTEF (i.e., “full-time equivalent” course load) of more than 67 percent during any
4 Overload refers to a contract faculty member who received more course assignments
than what is regularly required for full time status.
5 Pro-rata are retired contract faculty who are permitted to teach with a reduced course
load while collecting retirement benefits.
5

academic year. The at-will employment status of adjunct faculty generally allows the District
to dismiss them from service at any time and for any reason. If adjunct faculty meet certain
criteria discussed below they may attain POA status, which, among other things, provides them
the right to be assigned a certain course or courses before other adjuncts who do not have POA
for a particular course or courses. Section 5.2.3, “Eligibility for Priority of Assignment,” states
in relevant part:
5.2.3.1 Adjunct faculty who have completed six (6) semesters of
service…within a specific discipline at a particular college will
become eligible to participate in the priority of assignment
process in that discipline.
5.2.3.2 Two semesters prior to becoming eligible to participate
in the priority of assignment process for a particular discipline,
the adjunct faculty member shall request, in writing, to meet with
the appropriate manager and department chair and mutually
determine which assignments within the discipline in which
he/she holds priority of assignment rights. At minimum, this list
of assignments will include those assignments the adjunct faculty
member holds at the time of the request. In the case where
mutual agreement cannot be reached on additional assignments,
the appropriate manager shall make the final determination. The
final determination of the list of assignments must be made prior
to the end of the semester during which the adjunct faculty
member requests the above meeting. The list of assignments may
subsequently be modified upon mutual agreement of the adjunct
faculty member, appropriate manager, and department chair.
5.2.3.3 Priority of assignment rights will not be granted to
adjunct faculty who have not requested the above meeting with
their appropriate manager. In cases where an adjunct faculty
member requests the above meeting subsequent to the completion
of five (5) semesters of service in the discipline, he/she shall
become eligible to participate in the priority of assignment
process effective two (2) semesters following the request.
However, any accumulated FTEF will apply only to the prior four
(4) semesters.
(Emphasis added.)
6

POA status affords adjunct faculty with other employment protections aside from
simply gaining priority over other adjuncts in course assignments. Relevant here, section
5.2.6.1 provides:
Adjunct faculty who are not given any assignment for
circumstances beyond their control (course cancellations,
contraction of discipline, etc.) will retain their accumulated FTEF
for a period of eighteen (18) months. Adjunct faculty shall
remain in contact with the appropriate manager during this time
period so that they may be called back if conditions warrant.
Section 5.2.10, “Termination,” states at 5.2.10.1: “Adjunct faculty members who have not
qualified for priority of assignment rights within a specific discipline within a college, shall
have no re-employment rights within that discipline and may have their assignment terminated
at any time.” In contrast, section 5.2.10.2 provides regarding adjunct faculty with POA:
Adjunct faculty members who have qualified for priority of
assignment rights within a specific discipline within a college,
may have their assignment terminated at any time as a result of
reasons which are delineated in the California Government Code,
Education Code, Penal Code, District Policies and Procedures,
and District Human Resources Manual. The reason(s) shall be
provided in writing. Termination per this Section of the Article
shall not be grievable.
It is noteworthy that only AFT is entitled to file a grievance over an alleged violation of
contractual procedures regarding POA. (Section 5.2.8.) Thus, individual employees are
precluded from seeking contractual redress for alleged violations of these sections. It is
undisputed that, even with POA, an adjunct instructor has no right to a course assignment over
contract, overload contract, or pro-rata faculty.
AFT publicizes POA through informational brochures and in-person presentations to
adjunct employees and encourages them to apply for it. In its publication, “Adjunct Faculty
Survival Guide,” AFT describes the process of requesting and ultimately attaining POA status,
7

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noting that it does not become effective until after six semesters are completed. Regarding the
POA meeting and resulting course list discussed above, AFT notes:
At the meeting you, your department chair, and your dean will
discuss which courses qualify for your priority of assignment.
These should be all of the courses within your discipline that the
dean and the chair concur you are qualified to teach….(Your dean
has the final say if there is disagreement regarding which courses
should be on your “list,” although at a minimum all courses you
are currently teaching must be listed[.])
(Emphasis added.)
Douglas’s Request for POA
On November 20, 2013, Douglas sent a letter to then-dean Paulette Hopkins and
Mathematics department chair Francois Bereaud, stating his desire to begin the POA process.6
As Douglas had been working continuously at Miramar since Spring 2011, he requested to
begin the POA process during his sixth semester.7 Having heard nothing from Hopkins or
Bereaud within a couple of weeks after sending the letter, Douglas followed up with an e-mail
to them both on December 6, 2013. Hopkins responded, saying that she would schedule a
meeting between the three of them soon.
Bereaud also sent an e-mail reply to Douglas on December 6, 2013, leaving Hopkins
off that message. Bereaud stated: “Sorry to drop the ball here as well. I’m in no way trying to
dissuade you from this course, but there are some disadvantages to having POA [(]as well as
the obvious advantages of course) which I could share with you if you’d like.” Douglas was
intrigued and replied that he was interested in what Bereaud had to say. Bereaud then replied
6 During the time relevant to this matter, Hopkins was the dean of the Mathematics and
Science departments at Miramar. On July 1, 2015, Hopkins became the interim vice president
of Instruction at Miramar.
7 It is undisputed that POA is college-specific; thus, Douglas’s history at Mesa had no
bearing on his POA request at Miramar.
8

that he and Douglas should talk on the phone, which they did. Bereaud admits he told Douglas
in that conversation that Hopkins followed the contract very closely regarding POA
applications and she would likely only offer a POA list containing the class that Douglas was
currently teaching. Bereaud also said that Douglas’s POA list might not ever expand to
include other courses. Douglas feared that his future assignments might also be restricted to
the classes on his POA list. At hearing, Bereaud explained that at the time of his conversation
with Douglas, it was his first semester as department chair. Since then, he has discovered that
he was incorrect about POA lists not expanding for adjunct faculty with POA status. Bereaud
was able to provide two recent examples of adjunct faculty—Nirmala Kashyap and Lance
Gordon—whose POA lists were later modified to include other courses beyond those that were
initially offered to them.
On December 18, 2013, Douglas met with Hopkins to discuss his request for POA.
Bereaud was unable to attend the meeting for a reason related to child care. Hopkins initially
offered for the POA list Math 252, the class Douglas was currently teaching. During their
conversation, Hopkins added Math 151 to the list, since Douglas was slated to teach that class
the following semester. Douglas protested that the list was not acceptable, stating that he
understood the purpose of the meeting to be a discussion of all of the courses that he was
qualified to teach, and which should therefore populate his POA list. Douglas also expressed
that he was unhappy the meeting was occurring without Bereaud. Douglas said he needed to
speak with AFT about the situation. Hopkins then asked Douglas if he was withdrawing his
POA request. Douglas replied that he was not withdrawing anything, but he needed to consult
AFT before he proceeded further.
9

Douglas contacted the AFT president, Jim Mahler, immediately following his meeting
with Hopkins. After that, AFT grievance officer, Darrel Harrison, was assigned by AFT to
assist Douglas with his request for POA. Douglas sent an e-mail to Hopkins on December 20,
2013, which, among other things, expressed Douglas’s desire to hold a “proper POA meeting”
with Bereaud participating, and also with an AFT representative there to represent him. A
little more than an hour later, Douglas received an e-mail from Hopkins, which purported to be
“a follow up” to the POA meeting held on December 18, 2013. Hopkins recapped that
Douglas had refused to accept the classes he had been offered for POA because he felt he was
also qualified to teach others. Hopkins quoted the contractual language discussed previously,
which noted, at minimum, the POA list must include those classes taught by the adjunct at the
time of the request and that if agreement on other classes cannot be reached, then the dean
makes the final determination. Hopkins stated that the offer she made to Douglas was
compliant with the contract and would stand. She also stated that unless Douglas informed her
otherwise by December 23, 2013, she would assume that his refusal to sign the POA
agreement meant that he was “declining the assignment.” Hopkin’s e-mail to Douglas did not
acknowledge the e-mail that Douglas had sent to her earlier in the day asking for another POA
meeting with union representation.
Douglas forwarded Hopkins’s December 20, 2013 e-mail to Harrison and Bereaud.
Harrison then asked Bereaud to provide him with a statement in writing that Bereaud was
unavailable to attend Douglas’s POA meeting in December, had not yet consulted with
Douglas regarding Bereaud’s absence or regarding suitable POA course offerings, and was
available for a future meeting with all parties. Bereaud complied with Harrison’s request that
same day.
10

On December 23, 2013, Harrison sent Hopkins an e-mail, requesting a POA meeting
for Douglas with the participation of the department chair and AFT. In a private e-mail
between Harrison, Mahler, and Douglas shortly thereafter, Harrison noted that Hopkins had a
“vindictive side” and warned Douglas to be respectful during the next POA meeting. Harrison
also stated that Hopkins was “perfectly within her rights” to offer only a minimal POA list to
Douglas and that he should accept it. At hearing, Harrison testified that his statement about
Hopkins being vindictive was based upon his experience with her but did not otherwise
elaborate.
Before the second POA meeting was held, Douglas asked the former Mathematics
department chair, Harvey Wilensky, to accompany him to an informal meeting with Bereaud to
discuss the upcoming POA meeting and Douglas’s hope that Bereaud would advocate for his
POA list to be expanded. Wilensky testified, but could not recall the substance of this meeting.
Wilensky testified generally that he believed Douglas to be qualified to teach any of the course
offerings in the Mathematics department. It is not clear, though, that Wilensky shared that
opinion during the informal meeting.
Douglas testified that he felt he was not getting his point across to Bereaud during the
informal meeting. According to Douglas, Bereaud stated that Douglas wanted every class on
his POA list. Douglas said that was not true; he just wanted a conversation about his
qualifications to be considered before the list was finalized. Bereaud then said that, in the past,
the department had been “burned” by some adjuncts. Bereaud, however, was not questioned
during the hearing about that last statement that was attributed to him by Douglas.
On February 19, 2014, the reconvened POA meeting was held with Douglas, Harrison,
Bereaud, and Hopkins attending. Again, Hopkins offered only Math 151 and Math 252 for the
11

POA list, said her offer was firm, and this was how she always handled POA requests.
Douglas protested that refusing to consider anything but the bare contractual minimum violated
the spirit of the CBA, as the purpose of the POA meeting was to have a discussion over
qualifications and attempt to reach an agreement over the list. Douglas also stated what
Bereaud had told him in their private conversation about it being likely that his POA list would
not expand from the initial offered courses. Harrison then asked to speak to Douglas alone.
Harrison told Douglas that Douglas should not “throw his department chair under the bus,” and
urged Douglas to accept the courses being offered to him because that was all that was
required under the CBA. Once everyone was back in the meeting, Hopkins assured Douglas
that the classes he was being offered were likely to be available for teaching assignments in the
future and, in any event, he would not be restricted to teaching only those classes. Despite
having heard Harrison’s opinion over what he should do, Douglas told Hopkins that wanted to
further consult with AFT over actions that could be taken as he did not agree with what the
department had offered. Hopkins asked if he was withdrawing his request for POA, to which
Douglas responded that he was not, but simply need further consultation with AFT before
acting. Douglas testified at hearing that he wanted AFT’s opinion on whether a grievance
should be pursued.
The Performance Evaluation and the Conclusion of Douglas’s POA Process
A few weeks before the second POA was meeting was held, Douglas was informed that
he was due to be evaluated. Douglas’s first notice of this came via e-mail on February 4, 2014,
from Joan Thompson, an administrator in charge of coordinating faculty evaluations. Douglas
had just been evaluated for the first time at Miramar in Fall 2013, during the immediately
previous semester. This recent evaluation was in all respects positive. The CBA at Article
12

________________________
XV, section 15.1.14.1, provides regarding the frequency of performance evaluations: “Adjunct
faculty must be evaluated during the first year of employment and at least once every six (6)
regular semesters thereafter.” (Emphasis added.)
Douglas believed that since he had just received a positive performance evaluation, the
department must have been in error to require another evaluation so soon. He sent an e-mail to
Thompson and Bereaud asking for his personnel file to be checked for accuracy in that regard.
To that, Bereaud responded to Douglas:
With more full-timers on board to help, I am implementing a
policy where we evaluate all new part timers in each of their first
two or three semesters. Although you are not new, your first ever
evaluation was last semester, hence my request.
On February 13, 2014, Douglas sent an e-mail to Bereaud with the names of three peer
evaluators whom Douglas had secured as being willing and available to perform his
evaluation.8 Section 15.1.14.3 of the CBA evaluation article allows for the adjunct faculty
member to submit a list of three peer evaluators to his or her department chair from which the
dean shall either select one of those persons to perform the employee’s evaluation, or further
consult with the department chair and the employee to select another peer evaluator.
After Douglas’s class concluded on the evening of March 6, 2014, Hopkins approached
Douglas and asked him to step into her office for a moment. Hopkins told Douglas that since
he had applied for POA, she wanted Bereaud, being department chair, to conduct Douglas’s
performance evaluation. Douglas said he would consider it. After consulting with Harrison,
Douglas e-mailed Hopkins on March 12, 2014, asking her to explain why he was being
evaluated at this time. Hopkins replied to Douglas the next day:
8 Before Douglas submitted the names of peer evaluators, Douglas had communicated
with Harrison and expressed the belief that the department was requiring him to be evaluated
because he was fighting the department over his POA request.
13

As Francois and I stated earlier, the department is behind in
completing evaluations. We have been remiss in your evaluation
process because you have only one evaluation in your file since
your hire date in 2011. Miramar is striving to stay current with
evaluations for accreditation purposes. Specifically, all adjuncts
in the department who are applying for a POA assignment for the
first time are evaluated as standard process. Thus, as a POA
applicant, you and all other first time POA applicants in the
department have been assigned as peer evaluator, the Department
Chair, Francois Bereaud.
On March 19, 2014, Douglas e-mailed Hopkins, copying Bereaud and Harrison.
Douglas stated that on the advice of AFT, he refused to have Bereaud be his evaluator and
requested that the department select for that role one of the persons he had previously
submitted as being acceptable to him per the CBA evaluation article. In early April 2014,
Douglas was contacted by one of the peer evaluators, Mike Charles, to arrange the date for the
evaluation. It was conducted by Charles on April 10, 2014, and resulted in a positive review.
On April 16, 2014, Douglas sent an e-mail asking Bereaud what impact his recently
completed evaluation would have on his POA request. Harrison was copied as well. Bereaud
responded to Douglas by including Hopkins and deferring responsibility for an answer to her,
noting that the issue was one for management. Hopkins responded to Douglas the next day,
stating that her offer of Math 151 and Math 252 remained unchanged and that was her final
decision. The next day, Douglas informed Hopkins that he would tentatively accept the
department’s offer pending further advice from AFT. Harrison testified that AFT determined
not to file a grievance over the District’s handling of Douglas’s POA process because in his
and Mahler’s estimation, the District had not violated any contractual terms governing POA.
On or about April 23, 2014, Douglas received in his faculty mailbox the department’s
“Priority Assignment Application” form bearing Hopkins’s signature and showing POA in
14

Math 151 and Math 252. As Douglas understood the situation, his receipt of this form meant
that his POA status in those two courses was already in effect.
Douglas Does Not Receive a Course Assignment for Fall 2014
On April 24, 2014, Douglas sent Bereaud an e-mail asking for information over his
course assignment for the next semester. Bereaud replied the same day, stating that he was
still working on the schedule and had not yet received final “allocation numbers,” so he was
uncertain of when he would have an answer for Douglas. Having still heard nothing about his
assignment, on May 13, 2014, Douglas sent another e-mail to Bereaud asking if there was any
news. Douglas knew at that point that some other adjuncts had already been informed of their
assignments. The next day, Hopkins sent Douglas an e-mail message stating that she did not
have a course assignment for him for Fall 2014. She invited Douglas to remain in contact with
the department for his teaching availability in Spring 2015. It is undisputed that the evening
sections of both Math 151 and Math 252, the classes taught most recently by Douglas and
those for which he had been offered POA, were assigned by the department to contract faculty
for Fall 2014.
Bereaud and Hopkins testified about the manner in which courses are scheduled and
assigned. Hopkins testified that the department chair “takes the lead” after she provides him or
her with the allocation, or budget, and the department chair then determines which courses
should be offered based on student need. The overarching principle in matching instructors
with available courses was to assign the instructor that the department believed to be the best
fit for the particular course. Bereaud testified that he considered several factors when making
recommendations to the dean about whom should be assigned to particular courses. Bereaud
considered the length of time the faculty member had been teaching for the District, whether
15

________________________
the faculty member had taught a particular course in the past, whether the faculty member had
expressed a preference for teaching a particular course, the faculty member’s relevant teaching
experience outside of the District, and the advanced degrees held by the faculty member. As
noted previously, contract faculty in all respects had priority over adjunct faculty whether or
not POA was a factor. Bereaud testified about the reasons that he selected eight of the adjuncts
that were assigned evening courses for Fall 2014, noting the factors discussed above, such as
length of service, course assignment history, the possession of advanced degrees, etc.9 All but
two of them were assigned in Fall 2014 to the course he or she had taught during the
immediately preceding semester. Of the two who were assigned a course for Fall 2014 that
they did not teach during the previous semester, one of them, Spoon, also taught at Mesa
College, had previously been full-time at Miramar, and possessed a Ph.D.10 The other, Daud,
was assigned for Fall 2014 a statistics class, a subject in which he was earning a second
Master’s degree.
Hopkins testified that her area of academic expertise was in Exercise Science. As she
does not have a background in Mathematics, she especially relied upon the Mathematics
department chair’s course assignment recommendations. There is no evidence in the record
showing that Hopkins went against any of Bereaud’s course assignment recommendations for
Fall 2014.
9 Bereaud was questioned about the following adjunct faculty who were assigned
courses by the department for Fall 2014: Mitra Ashan (Math 38), Nemie Capacia (Math 46),
Natalia Navarova (Math 96), Lamia Raffo (Math 141), Earl Toler (Math 104), Alireza Farahani
(Math 121), Solomon Daud (Math 119), and Kelly Spoon (Math 150).
10 It did not appear that Spoon taught at Miramar in Spring 2014. At the time of the
hearing, Spoon had become a contract faculty member at Mesa.
16

Douglas Learns That His POA Rights Never Went Into Effect
On September 19, 2014, Douglas sent an e-mail to Hopkins and Bereaud, stating that
per CBA section 5.2.6.1, he was remaining in contact with them since his lack of assignment
the previous semester was for reasons beyond his control. Hopkins responded to Douglas on
September 22, 2014. She thanked Douglas for his interest, but stated, “Article 5.2.6.1 does not
pertain to you since you do not have priority of assignment rights having not completed the (6)
semesters condition for eligibility defined in Article 5.2.3.” Hopkins also informed Douglas
that she did not have a course to offer him for Spring 2015.
The Way the POA Process and Evaluations Were Handled for Other Adjunct Faculty
Hopkins testified that she handled around a dozen other adjunct faculty employees’
requests for POA during her tenure as dean. After she received a request from an adjunct
employee to begin the POA process, Hopkins would print a history of the instructor’s course
assignments in advance of the POA meeting. Labeling the semester of the request as number
four, Hopkins would then count back three previous semesters and add up the sum of these
four semesters to attain the adjunct employee’s accumulated FTEF. The accumulated FTEF
number provides a method of determining seniority among adjunct faculty with POA in the
same courses. Hopkins consistently offered to adjunct employees seeking POA the course(s)
they were currently teaching and, if different, the course(s) they were already scheduled to
teach for the following semester. The documentary evidence submitted by the District for
several other adjunct instructors’ POA requests showed that Hopkins never deviated from this
approach in handling employees’ requests for POA.
At the same time that Douglas requested POA in Fall 2013, adjunct Mathematics
instructor Kashyap, who was discussed briefly above, also requested POA. At the time of her
17

request, Kashyap was teaching Math 38 and Math 104. She was scheduled to teach Math 96
the following semester. Kashyap was offered those three courses for her POA list. Kashyap
had a performance evaluation during Spring 2014 by Bereaud. Her most recent performance
evaluation before that had been in Fall 2012. Kashyap’s POA went into effect during Spring
2015. At the time of the hearing, she was still employed by the District at Miramar. An
adjunct employee in the Science department, Dustin Wood, also applied for POA with Hopkins
in Fall 2013, was only offered the courses he was currently teaching, and his POA went into
effect beginning Spring 2015. Hopkins explained that, in her view, the CBA requires the
completion of six semesters before POA takes effect. The semester of the employee’s request
is considered the fourth semester. The next two semesters are the fifth and sixth. Then, the
following semester (the seventh) is when the POA status is actually conferred.
Two adjunct instructors who worked at San Diego City College in the Spanish and
Drama departments testified regarding their POA processes. Both were only offered for their
POA lists the courses they were currently teaching during the semesters of their requests. 	The
Spanish instructor did not receive any course assignment during the semester after his POA
process occurred because the courses he had been teaching were assigned to contract faculty.
The Drama instructor continued to receive course assignments and was still employed by the
District at the time of the hearing.
The District introduced evidence regarding the frequency of adjunct faculty evaluations
in the Mathematics department at Miramar. In addition to Douglas, six other adjunct
instructors were evaluated in both the Fall 2013 and Spring 2014 semesters. For five of the six
other adjunct instructors who were evaluated in consecutive semesters, Bereaud was the
evaluator for at least one of those evaluations.
18

________________________
ISSUES
Did the District retaliate against Douglas for his protected activities by requiring an
“extra and unnecessary” performance evaluation and by failing to offer him a course
assignment in Fall 2014?11
CONCLUSIONS OF LAW
To demonstrate that an employer discriminated or retaliated against an employee in
violation of EERA section 3543.5, subdivision (a), the charging party must show by a
preponderance of evidence that (1) the employee exercised rights under EERA, (2) the
employer had knowledge of the exercise of those rights, (3) the employer took adverse action
against the employee, and (4) the employer took the action because of the exercise of those
rights. (Novato Unified School District (1982) PERB Decision No. 210, pp. 6-8 (Novato).)
11 The District raised untimeliness as a defense in its answer to the complaint. In its
position statement, the District asserted that the evaluation allegation was untimely.
Untimeliness was not argued in the District’s closing brief, however. Once a complaint has
been issued by PERB, the burden of proof is on the respondent to demonstrate that a charge is
untimely and no tolling exception to the statute of limitations applies. (Los Angeles Unified
School District (2014) PERB Decision No. 2359, p. 3.) In a case where termination of
employment was at issue, the Board stated that the actual date of the adverse action, rather than
notice to the employee of the employer’s intent to pursue it, triggered the running of the
limitations period because negotiated or statutory procedures may be at play and significantly
extend the time between the notice and the action. (Monterey Peninsula Unified School
District (2014) PERB Decision No. 2381, p. 34; see also State of California (Department of
Youth Authority) (2000) PERB Decision No. 1403-S, proposed dec., p. 29 [date of
investigatory meeting, not notice of investigation, triggered running of limitations period].)
The evidence here shows that while Douglas was initially informed by the department that he
would be required to have a performance evaluation in February 2014, which was outside of
the six-month limitations period, the evaluation was not actually performed until April 10,
2014, which was within the limitations period. In the interim, there had been communication
between Douglas and Hopkins over why Douglas needed to be evaluated and who should be
the evaluator under relevant CBA provisions. The rationale from the above cases is persuasive
here, where negotiated evaluation procedures were discussed between the parties for some time
before the evaluation was actually scheduled by the department. Accordingly, the date of the
evaluation itself, not the earlier notice of it to Douglas, triggered the limitations period and the
allegation is therefore timely.
19

________________________
The test for determining whether an action taken by a respondent against an employee is
adverse to the employment interests of that employee is an objective one, and therefore does
not rely on the employee’s subjective reactions to it. (Palo Verde Unified School District
(1988) PERB Decision No. 689, p. 12.) As explained by the Board:
The test which must be satisfied is…whether a reasonable person
under the same circumstances would consider the action to have
an adverse impact on the employee’s employment.
(Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12.)
A causal connection between the employee’s protected activity and the respondent’s
adverse action is the critical final element of the charging party’s prima facie case. Evidence
of a respondent’s unlawful motive can be shown by either direct or circumstantial evidence.
When considering circumstantial evidence of unlawful motive, PERB looks to the timing of
the protected conduct relative to the adverse action to provide an inference that the action
occurred because of the employee’s exercise of statutory rights. (California Teachers
Association, Solano Community College Chapter, CTA/NEA (Tsai) (2010) PERB Decision
No. 2096, p. 11.) But close timing by itself is not determinative for finding a violation.
(Moreland Elementary School District (1982) PERB Decision No. 227, p. 13)
Additionally, PERB examines other factors, at least one of which must be present, to
demonstrate the requisite nexus between protected conduct and adverse action. These factors
include: (1) the employer’s disparate treatment of the employee (State of California
(Department of Transportation) (1984) PERB Decision No. 459-S, p. 6); 12 (2) the employer’s
12 That case was decided under the Ralph C. Dills Act (Gov. Code, § 3512 et seq.)
When interpreting EERA, it is appropriate for PERB to derive guidance from court and
administrative decisions interpreting the National Labor Relations Act (NLRA) (29 U.S.C. §
151 et seq.) and parallel provisions of California labor relations statutes. (San Diego Teachers
Assn. v. Superior Court (1979) 24 Cal.3d 1, 12-13.)
20

departure from established procedures and standards when dealing with the employee
(Santa Clara Unified School District (1979) PERB Decision No. 104, p. 20); (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, p. 15); (4) the
employer’s cursory investigation of the employee’s misconduct (City of Torrance (2008)
PERB Decision No. 1971-M, p. 19; (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, p. 10) or the offering of exaggerated, vague, or ambiguous reasons (McFarland
Unified School District (1990) PERB Decision No. 786, pp. 13-14); (6) employer animosity
towards union activists (Jurupa Community Services District (2007) PERB Decision
No. 1920-M, pp. 15-16;); or (7) any other facts that might demonstrate the employer’s
unlawful motive (North Sacramento School District (1982) PERB Decision No. 264, p. 22).
If the charging party produces sufficient evidence demonstrating a prima facie case, and
therefore establishes an inference of unlawful motivation, the burden shifts to the respondent to
prove that it had an alternative, non-discriminatory reason for the challenged action. The
respondent’s burden includes proving that it, in fact, acted because of this alternative non-
discriminatory reason and not because of the employee’s protected activity. (Palo Verde
Unified School District (2013) PERB Decision No. 2337, p. 31 (Palo Verde).)
Turning to the facts in this case, there is no question that Douglas engaged in activities
protected by EERA, as alleged in the complaint, when he asserted rights under the negotiated
evaluation and POA procedures in the CBA (Jurupa Unified School District (2012) PERB
Decision No. 2283, p. 16 (Jurupa I)) and sought representation from AFT regarding his view
that CBA procedures were not being followed. (Jurupa Unified School District (2015) PERB
21

________________________
Decision No. 2420, p. 37.) Hopkins, the ultimate decision-maker for both alleged adverse acts,
was aware of Douglas’s protected activities. Thus, the first two elements of the Novato
discrimination standard are met for both allegations. There is also no question that the failure
to receive a course assignment effectively ended Douglas’s employment with the District,
which is a clear adverse action. (Cabrillo Community College District (2015) PERB Decision
No. 2453, p. 18.) The remaining disputed elements of the prima facie case for both allegations
are discussed below.
1. 	Adverse Action - Performance Evaluation
The District argues that the CBA only sets a minimum frequency for adjunct
instructors’ performance evaluations because of the phrase noting that adjunct employees must
be evaluated “at least once every six regular semesters” at section 15.1.14.1. (Emphasis
added.) The District believes it has the right to perform evaluations more often than the
contractual minimum, so its action was routine and therefore not adverse to Douglas’s
interests. PERB has addressed a similar issue in two cases involving the same parties. In the
first case, Jurupa I, supra, PERB Decision No. 2283, the Board concluded that because the
Education Code requires evaluation of a permanent certificated employee “at least once every
other year,”13 and only when an employee receives an unsatisfactory evaluation must the
employee be annually assessed, then requiring a consecutive year evaluation where there was
not a previous negative one “signals a performance deficiency requiring remediation,” which is
the functional equivalent of a negative evaluation. (Id. at pp. 18-19.) The Board then partially
reversed the dismissal of the charge and remanded the case to the PERB Office of the General
Counsel to issue a complaint. (Id. at p. 32.) After a hearing on the merits, the employer took
13 Education Code section 44664, subdivision (a)(2).
22

exception before the Board to the finding of the Administrative Law Judge (ALJ) that the
consecutive year evaluation in that matter was an adverse action under the holding of Jurupa I.
The Board in Jurupa Unified School District (2015) PERB Decision No. 2458 (Jurupa
II), rejected the employer’s argument and upheld its previous conclusion regarding the adverse
nature of an off-cycle evaluation, noting that “the default evaluation cycle for permanent
certificated employees who are performing satisfactorily is every two years[,]” under both the
Education Code and the parties’ contract. (Id. at pp. 17-18.) The Board found it significant
that the Education Code enforces a more frequent evaluation cycle only where an employee
has received a negative evaluation (Educ. Code, § 44664, subd. (b)) and concluded that when
Education Code sections 44664 (a)(2) and (b) were read together, these provisions establish a
default cycle of every other year for the evaluation of satisfactorily performing permanent
teachers. (Jurupa II, supra, PERB Decision No. 2458, pp. 15-16.) The Board further
concluded that a more frequent evaluation cycle than that allowed under the Education Code
was a matter reserved for collective bargaining. (Id. at p. 16.) Thus, the Board found that to
require an employee who was performing satisfactorily to undergo more frequent evaluations
than the default cycle was an adverse action. (Ibid.)
In this case, although adjunct instructors working for community college employers do
not enjoy the full panoply of statutory procedural due process protections afforded to
permanent certificated employees in the K-12 system, the Education Code does set an
expectation regarding the normal frequency of performance evaluations for adjunct, i.e.,
“temporary” employees. Education Code section 87663, subdivision (a) states:
Contract employees shall be evaluated at least once in each
academic year. Regular employees shall be evaluated at least
once in every three academic years. Temporary employees shall
be evaluated within the first year of employment. Thereafter,
23

evaluation shall be at least once every six regular semesters, or
once every nine regular quarters, as applicable.
(Emphasis added.)
As in the Jurupa cases, the CBA language here also mirrors applicable Education Code
provisions regarding evaluation frequency, signaling that AFT and the District have agreed to
follow the Education Code procedures. Likewise, the same “at least once” language at issue
here was also present in the applicable Education Code and contractual provisions at issue in
both Jurupa cases. Thus, the Board has confronted the argument that the Legislature’s use of
the term “at least once” implies that a more frequent evaluation cycle might be permitted under
some circumstances. (Jurupa II, supra, PERB Decision No. 2458, pp. 15-17.) The Board
nonetheless has concluded that there is a “default” evaluation cycle for satisfactorily
performing permanent certificated employees of every other year. (Id. at p. 17.) Unlike for
permanent certificated employees in the primary and secondary school system, the Education
Code does not mandate that a temporary employee in the community college system must be
evaluated annually after receipt of an unsatisfactory performance evaluation. The likely reason
for this difference is that temporary employees in the community college system, in contrast to
permanent certificated employees, are at-will and may be released from employment without
cause. Thus, a temporary employee receiving a negative review may simply be released from
service without further ado. There is no reason to believe the Board would find the absence of
procedures for negative evaluation in the Education Code in this circumstance, given these
procedural due process differences, significant enough to warrant a different approach here.
Douglas was not evaluated in his first year of employment at Miramar as he should
have been under the Education Code and the CBA. However, his first evaluation occurred
during Fall 2013. Under the Board’s rationale in Jurupa II, after Douglas’s first evaluation,
24

the Education Code and the identical negotiated procedures between AFT and the District set
an expectation that his next evaluation would be due in six regular semesters. Because the
District required Douglas to be evaluated again the very next term, especially while he was
applying for POA, it could imply that his performance was deficient. Thus, the off-cycle
evaluation may objectively be considered an adverse action.
2. 	Nexus – Performance Evaluation and Failure to Assign a Course
As discussed above, in the absence of direct evidence of unlawful motivation, close
timing alone between an employee’s protected activity and the employer’s adverse action is
not determinative for demonstrating that the action was taken because of the protected acts.
Other circumstantial evidence must also be present to prove up this critical element of the
prima facie case. In the present matter, Douglas first challenged Hopkins’s interpretation of
the POA eligibility article and told her that he would seek AFT’s help on December 18, 2013.
After that, Harrison contacted Hopkins on Douglas’s behalf and appeared to represent Douglas
at the second POA meeting in February 2014. Douglas also frequently communicated with
Hopkins through April 2014, discussing his consultation with AFT over POA and evaluation
issues, and disputing that the department was following the CBA regarding either topic. Thus,
the District’s requirement that Douglas submit to a performance evaluation during Spring
2014, and its notification to Douglas in May 2014 that he would not be assigned a course for
the next semester, occurred close in time to his ongoing exercise of protected rights. In
addition to this close timing, there is some other evidence that Hopkins may have been
unlawfully motivated.
In both POA meetings, each time that Douglas expressed displeasure with the classes
being offered to him for his POA list and said that he needed to consult with AFT before
25

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making a decision, Hopkins responded by asking if Douglas meant to withdraw his request for
POA. Similarly, when Douglas e-mailed Hopkins on December 20, 2013, stating that he
wanted a second POA meeting with an AFT representative present, Hopkins ignored his
request and wrote immediately afterward that he had three days to confirm whether he was
accepting the POA offer or withdrawing his request for same. Hopkins offered no explanation
during the hearing over why she ignored Douglas’s e-mail on December 20 and continuously
asked Douglas if he was withdrawing his request for POA each time he discussed involving
AFT. Her seeming rush to dispense with Douglas’s POA process by having him withdraw it
may show hostility toward a unit member exercising contractual rights or animus against AFT
becoming involved. Hopkins’s behavior in this regard, coupled with Harrison’s testimony that
Hopkins had a vindictive nature based on his past experiences with her, which one can
reasonably assume were as a representative, and Bereaud’s attempt to caution Douglas
regarding enforcing his contractual right to POA with Hopkins, provides enough evidence to
suggest that the ultimate decision-maker in this case may have harbored some animus toward
union activities. This evidence, in conjunction with the close timing between Douglas’s
protected conduct and the adverse actions, is sufficient to demonstrate unlawful motivation for
the purpose of establishing a prima facie case.14
Because Douglas has shown all of the elements of a prima facie case under the standard
in Novato, supra, PERB Decision No. 210, the burden shifts to the District to show that its
actions against Douglas were taken for non-discriminatory reasons.
14 This is the only convincing evidence I found of nexus between Douglas’s protected
activity and the adverse actions at issue. Arguments regarding other evidence of nexus raised
by Douglas are discussed in the next section of the proposed decision in connection with the
District’s defenses.
26

The District’s Defense
Where, as here, the charging party has produced sufficient evidence demonstrating a
prima facie case, the burden shifts to the respondent to prove that it had an alternative non-
discriminatory reason for the challenged action; and that it in fact acted because of this
alternative non-discriminatory reason and not because of the employee’s protected activity.
(Palo Verde, supra, PERB Decision No. 2337, p. 31.) Where there is evidence that the
respondent’s adverse action was motivated by both lawful and unlawful reasons, “the question
becomes whether the [adverse action] would not have occurred ‘but for’ the protected
activity.” (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d
721, 729-730 (Martori Bros.).) The “but for” test is “an affirmative defense which the
respondent must establish by a preponderance of the evidence.” (McPherson v. Public
Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.)
In assessing the evidence, PERB’s task is to determine whether the respondent’s “true
motivation for taking the adverse action was the employee’s protected activity.” (Regents of
the University of California (2012) PERB Decision No. 2302-H, p. 3, citations omitted; see
also Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 23.) Further,
PERB “weighs the respondent’s justifications for the adverse action against the evidence of the
respondent’s retaliatory motive.” (Baker Valley Unified School District (2008) PERB Decision
No. 1993, p. 14.) If PERB determines that a respondent’s action was not taken for an unlawful
reason, it has no authority to also determine whether the action was otherwise justified or
proper. (City of Santa Monica (2011) PERB Decision No. 2211-M, p. 17.)
In this case, it is not difficult to see things from Douglas’s perspective. He was
worried, despite assurances from Hopkins, that the classes he was being offered for POA
27

would limit his assignments in the future. Douglas’s concern was induced, at least in part, by
the warning over such possibility by his own department chair. In the middle of the somewhat
adversarial POA process, Douglas learned he was to be evaluated when he did not expect to be.
Then, immediately after the POA process, he failed to receive an assignment for the next
semester. Douglas’s concerns appear, on the surface, to have been well taken. However, when
the entire record is taken into account, the evidence of retaliatory motive here is weak when
compared with the District’s reasons for both evaluating Douglas in Spring 2014 and not
having a class to offer him for the next semester.
1. 	Performance Evaluation
Regarding the evaluation, the evidence shows that Douglas was not treated differently
than other adjuncts in the department, either in his being subjected to an evaluation in
consecutive semesters or because he had requested POA. Douglas did not dispute that the
department was behind in conducting adjunct employee evaluations because of the low number
of contract faculty employed during the years of the hiring freeze. It is also undisputed that he
had had only one previous evaluation before he was asked to submit to another. The District
provided a reasonable explanation that it was taking advantage of the newly hired contract
faculty, as the hiring freeze had just been lifted, in an attempt to become current with the
adjunct evaluation process.
The District’s explanation in this regard is also bolstered by the fact that in addition to
Douglas, at least six other adjuncts in the department were also evaluated in both Fall 2013 and
Spring 2014. And Kashyap, who had also applied for POA at the same time as Douglas, was
similarly evaluated in Spring 2014 and was assigned Bereaud for that task. Kashyap’s most
recent previous evaluation had occurred only two semesters earlier. 	Kashyap’s evaluation
28

during her POA process could also then be considered off-cycle. The District’s view that the
CBA permitted more frequent evaluations than just once every six semesters is apparent in the
consistency in which the department actually performed evaluations on adjunct faculty more
often than what it viewed as the minimum requirement. Given that the contractual language
says “at least once” rather than “at most once,” the District’s interpretation is not without
reason. The fact that Douglas was being treated in exactly the same way as other similarly
situated employees provides the most compelling evidence that Douglas’s protected activity
was not the actual motivation behind the District’s action in this regard. If other employees
were also being routinely subjected to evaluations more often than what might be expected
under the CBA and the Education Code, then it is not likely that Douglas’s contemporaneous
protected conduct was the true motivator behind the District’s action.
It is also important to note that the decision to evaluate Douglas in Spring 2014 appears
to have originated from Bereaud, not Hopkins. While it is clear that Hopkins also believed that
Douglas should be evaluated, Bereaud testified that he was the person who had decided all
adjuncts should be evaluated at least twice in their first two or three semesters and was trying
to catch-up where that had not happened. That Bereaud had made the decision to evaluate in
this instance is also apparent in Bereaud’s response to Douglas’s e-mail in which Douglas
asserted he was not due for evaluation. Bereaud is not a management representative and is also
included in the AFT bargaining unit. There is no evidence that Bereaud harbored any animus
toward either AFT or Douglas’s exercise of contractual rights. For instance, Bereaud
cooperated easily with AFT’s request to provide a written statement about his availability for a
second POA meeting and lack of participation in the first. And although Bereaud tried to
caution Douglas about what he perceived at the time to be the pitfalls of POA status, that
29

appears to have been motivated by a desire to help Douglas rather than any hostility toward an
employee exercising contractual rights. Later, Bereaud realized that he had been mistaken
about employees’ POA lists not expanding from the original offerings as he began to see
examples of that occurring after he gained more experience in the role of department chair.
His explanation of his changed opinion was believable.
For all of these reasons, it is likely that Douglas would have been evaluated in
consecutive semesters even if he had not applied for POA and enlisted the help of AFT, as he
only had one previous evaluation on file. Thus, I cannot conclude that “but for” Douglas’s
protected conduct, the evaluation would not have occurred. (Martori Bros., supra, 29 Cal.3d
721, 729-730.) Additionally, given that the department also evaluated the other POA applicant
at the same time and assigned Bereaud to do it, this further shows that Douglas was not being
treated any differently because of his protected activities. The District has therefore met its
burden that it had and acted because of non-discriminatory reasons in deciding to evaluate
Douglas in Spring 2014.
2. 	Failure to Offer a Course Assignment for Fall 2014
According to the District, the reason that Douglas was not offered a course for
Fall 2014 is because the courses he taught the previous two semesters, Math 151 and Math
252, were assigned to newly hired contract faculty. Full-time faculty members always have
priority for course assignments over adjunct employees, whether or not the adjunct employee
has POA. Thus, there was simply no course available for Douglas. As noted previously,
PERB has held that an employer proves its affirmative defense when it demonstrates that it has
“both an alternative non-discriminatory reason for its challenged action, and that the
challenged action would have occurred regardless of the employee’s protected activity” (Palo
30

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Verde, supra, PERB Decision No. 2337, p. 13, emphasis added); and when the adverse action
is “justified by criteria wholly unrelated to the employees’ protected activity” (Rio Hondo
Community College District (1982) PERB Decision No. 272 at p. 5). The District has met that
burden here as the hiring of full-time faculty for the classes that Douglas was previously
teaching was wholly unrelated to Douglas’s protected conduct.
Douglas argues that the District’s reason in this regard is pretextual and reveals only the
District’s unlawful motivation. PERB has found that an employer’s stated reasons for its
actions were pretext where the evidence contradicted those reasons. (Chula Vista Elementary
School District (2011) PERB Decision No. 2221, pp. 21-23.) The crux of Douglas’s theory of
retaliation in this case is that because he challenged Hopkins during the POA process, she
determined to end his employment at Miramar. Douglas argues that he achieved POA status at
the end of the Spring 2014 semester and, therefore, Hopkins’s later refusal to acknowledge that
fact reveals her animosity toward the exercise of his contractual right to POA.15 Douglas also
argues that Hopkins’s arbitrary refusal to offer for his POA list more courses than what he was
teaching or slated to teach, without providing any valid reasons for such decision, shows that
she must have intended to limit his course opportunities in the future, which then allowed him
to be effectively fired at the next available opportunity. Douglas also believes that the reason
things worked out regarding Kashyap’s POA request is because, unlike him, Kashyap did not
cause any trouble and simply accepted what was offered to her, including having Bereaud as
her evaluator. Douglas thus offers Kashyap’s situation as illustrative of disparate treatment
15 It is noted that these events occurred outside of the timeframe of the complaint and
Douglas did not state an intention at hearing or in his brief to pursue a separate allegation of
unfair practice in this regard. Nonetheless, it is appropriate to consider events that fall outside
of the statutory limitations period as relevant background information when they may shed
light on timely alleged violations. (San Diego Unified School District (1991) PERB Decision
No. 885, p. 38.)
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and the department’s antipathy toward his protected activity. Douglas argues finally that the
District hired two new adjunct instructors for Fall 2014 rather than give him an assignment,
which shows its discriminatory motive. These arguments are addressed in turn below.
A. POA Status
Regarding Douglas’s belief that he had already achieved POA status at the time that the
District refused to offer him a course for the following semester, there are two important points
to be made. First, even if he did achieve POA for Math 151 and Math 252, that would not
have helped him attain an assignment for either of those particular courses in Fall 2014, since
they were assigned to contract faculty. In addition, if he was to have been assigned a course
for Fall 2014, the most likely candidate would have been Math 151, as that is what he taught
the immediately previous semester. The evidence showed that Bereaud usually recommended
assigning an adjunct instructor to continue teaching the same course he or she had been
previously teaching. The lifting of the years long hiring freeze occurred contemporaneously
with Douglas’s request for POA. The newly-bolstered ranks of contract faculty thus took a
much larger share of the available course assignments by Fall 2014. The department went
from having 33 adjunct faculty teaching 62 course sections in Fall 2013, to just 21 adjunct
faculty teaching 34 course sections by Fall 2014. So, Douglas was by no means the only
adjunct faculty member who found himself without an assignment in Fall 2014 because of
newly hired full-timers.16 It is quite likely then that even if Douglas had not pursued POA, he
still would not have received an assignment for Fall 2014.
Second, the CBA provisions explaining when POA eligibility commences are open to
more than one reasonable interpretation. PERB may interpret contractual terms to the extent
16 Besides Douglas, nine other adjunct employees failed to receive a course assignment
for Fall 2014.
32

such interpretation is necessary for determining a violation of the statutes under its jurisdiction.
(City of Riverside (2009) PERB Decision No. 2027-M, p. 10.) PERB applies the traditional
rules of contract interpretation embodied in Civil Code sections 1638 and 1641. (King City
Joint Union High School District (2005) PERB Decision No. 1777, pp. 4-5.) Accordingly,
each contract clause must be read in conjunction with the phrases surrounding it, and the
interpretation should harmonize any potential conflict between provisions of the agreement so
that there is a “reasonable, lawful and effective meaning” given to all terms. (Ibid.) The
interpretation given must avoid leaving any provision without meaning. (Bellflower Unified
School District (2015) PERB Decision No. 2455, proposed dec., p. 13, and the cases cited
therein.) Where a contract is susceptible of two interpretations, one of which is reasonable and
fair, and the other is unreasonable or unfair, the latter interpretation must be rejected and the
first accepted. (Civ. Code, § 1643; Division of Labor Law Enforcement Dept. of Indus.
Relations v. Safeway Stores, Inc. (1950) 96 Cal.App.2d 481, 490.)
Douglas argues that because he made his request for POA during his sixth semester of
service with Miramar (Fall 2013), and he taught the following semester (Spring 2014), then his
POA went into effect by Fall 2014 as he had completed more than six semesters of service by
that time. Douglas further argues that section 5.2.3.3 implies that is expected that a faculty
member will make the request for POA during the fifth semester of service, and then POA
status is granted after the completion of semester six. (§ 5.2.3.1.) Hence, there is only one
“waiting” semester before it becomes effective, not two, as asserted by the District. Douglas
also argues:
If it was the intent of Section 5.2.3.1 that the faculty member
should make the request during the fourth (4th) semester of
service, this would render nonsensical the provision that the
accumulated FTEF is from the four (4) semesters prior to the
33

semester of the application; for, if that were the case, the
applicant would have only provided service for three (3)
semesters prior to the semester of the application.
The District interprets Article 5.2.3 slightly differently than Douglas. Hopkins testified
that adjunct employees are first eligible to apply for POA during their fourth semester of
service and then there is a two semester waiting period before it becomes effective, as six
semesters must first be completed before the status is conferred. Hopkins also pointed to the
language in section 5.2.3.3 that notes POA status becomes effective two semesters following
the employee’s request for it.
The language in the three sections of Article 5.3.2 regarding when POA takes effect is
somewhat ambiguous, so either party’s interpretation has some merit and thus neither one can
be rejected outright. Douglas’s position about sections 5.3.2.1 and 5.3.2.2 requiring only one
waiting semester before POA becomes effective is reasonable. Section 5.2.3.1 states that
adjunct faculty must have completed six semesters within a specific discipline before becoming
eligible to participate in POA. That logically means that POA eligibility would take effect at
the beginning of the seventh semester. And section 5.2.3.2 states that an adjunct employee
may first request to begin the POA process two semesters prior to becoming eligible. If one
becomes eligible at the beginning of the seventh semester, then two semesters before that is the
fifth semester. Hence, if an employee requested the POA meeting at his or her earliest
opportunity, during the fifth semester, then after completing one additional semester (the
sixth), POA would take effect. But the language in section 5.2.3.3 is open to a different
interpretation about when the status is conferred. This section applies to the situation where an
adjunct employee has not requested POA at his or her earliest opportunity. The section begins
by noting that POA is not granted to adjunct instructors who have not requested a POA
34

meeting with their manager. Thus, POA is not automatic. So even if one has been employed
by the District for many years as a member of the adjunct faculty, longevity alone does not
confer POA status. Next, this section notes where an adjunct faculty member requests the
POA meeting after he or she has completed five semesters of service, which is exactly what
Douglas did here, “he/she shall become eligible to participate in the priority of assignment
process effective two semesters following the request.” (Emphasis added.)
Hopkins always interpreted the POA eligibility article to require two waiting semesters
before an adjunct employee’s POA status became operative, no matter when the employee
applied to begin the process. Because section 5.2.3.3 states that POA should not become
effective until after two semesters have passed from the time of the employee’s request, this
interpretation of the CBA language is equally as plausible as Douglas’s contrary one.
Ultimately, it does not matter whose interpretation is the most “correct” because PERB’s role
is not to enforce the contract, but to determine whether an employer’s actions that were
adverse to employment interests were pursued for an unlawful reason. Hopkins applied the
same interpretation of the POA eligibility article to Douglas’s request as she did for every
other employee who requested POA in the Math and Science departments while she was the
dean. Douglas and Kashyap both applied for POA in the Mathematics department during Fall
2013. Kashyap’s POA did not take effect until two full semesters later, in Spring 2015. Since
Hopkins interpreted these CBA provisions in Douglas’s situation in the same manner as she
did for all other similarly situated employees, then Douglas’s protected activity cannot be
found to have had any significant effect on her analysis.
35

Because I find no fault with Hopkins’s interpretation of the POA eligibility article,
which was the same interpretation she applied to all other POA applicants within her purview,
I cannot conclude with Douglas that her refusal to recognize that he had achieved POA by
Fall 2014 showed any animus toward his protected activities, disparate treatment, or a
departure from established procedures. Thus, Hopkins’s statements to Douglas in
September 2014 do not reveal any unlawful motivation behind her earlier decision that there
were no classes available for Douglas to teach in Fall 2014.
B. POA Process
Hopkins showed some impatience with Douglas’s responses to her POA offers to be
sure. If she had not initially ignored Douglas’s request for a second POA meeting with union
representation and repeatedly inquired if Douglas was going to withdraw his POA request
every time he balked over her offers and stated his intent to seek help from AFT, the analysis
would not have reached this point as there would have been no prima facie case. However,
this slight evidence of animus toward union activities by Hopkins, as noted above, is tenuous
when viewed in the context of the entire record. Although Douglas clearly believes he was
treated unfairly during the POA meetings and that the “spirit” of the CBA was violated by
Hopkins’s seeming refusal to attempt to reach an agreement with him over all of the courses he
was qualified to teach, Hopkins still acted within her authority under section 5.2.3.2 to make a
final determination over the POA course list in the absence of agreement. The idea that an
adjunct instructor’s POA list “should be all of the courses…that the dean and the chair concur
the [adjunct] is qualified to teach” (emphasis added) derives from an internal AFT publication.
That “should” language is not found in the POA eligibility article in the CBA, however. The
36

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CBA is what actually defines the rights and obligations of the parties’ to the agreement and
what is owed to the employees who are subject to its terms.
Hopkins did not handle Douglas’s request for POA any differently than she handled
that of all other employees who requested POA while she was the dean.17 She always only
offered to POA applicants the course(s) they were currently teaching and, if different, the
course(s) already assigned for the following semester. There was nothing unique about her
approach to Douglas’s situation, despite Douglas’s subjective feelings of mistreatment. Even
if Douglas had not protested the POA offer and involved AFT, it is likely that the exact same
result would have occurred. Since she never deviated from her approach to POA, it is unlikely
that animus toward Douglas’s union activities had any influence over the courses he was
offered for POA. And since the evidence showed that Hopkins relied upon the recommended
course assignments that Bereaud suggested for the department and there is no evidence that she
rejected any of those recommendations for Fall 2014, it can be fairly surmised that Bereaud did
not find a course to assign Douglas that term and Hopkins simply accepted that fact. As
previously concluded, Bereaud did not show any hostility toward Douglas’s protected
activities. Accordingly, there is really no convincing evidence that Hopkins’s handling of
Douglas’s POA request played any substantial part in the decision not to assign him a course in
Fall 2014.
17 It is noted that the testimony of the two San Diego City College adjunct employees
who were called by Douglas to explain the circumstances of their own POA processes did not
provide any compelling evidence showing that there were any applicable District-wide
procedures regarding the handling of POA requests that were then deviated from by Hopkins.
37

C. The Handling of Kashyap’s POA Request
Douglas argues that the District treated Kashyap more favorably than him due to his
exercise of protected rights under EERA. As a threshold point, although Douglas concludes
that Kashyap simply accepted what was offered to her for POA and did not involve AFT in the
matter, there is actually no information in the record over whether Kashyap did or did not ask
AFT for help with POA, or whether she individually raised any concerns to Hopkins over the
courses she was being offered, as none of the pertinent witnesses were asked questions that
would confirm or deny such possibilities. Bereaud did confirm, however, that Kashyap did not
object to him performing her evaluation in Spring 2014. Just like Douglas, Hopkins offered
Kashyap the courses she was teaching during the semester of her POA request and the course
she was slated to teach the following semester. Again, the evidence shows that Hopkins
treated Douglas and Kashyap the same way. Bereaud was not questioned about the reasons for
his recommendations over Kashyap’s course assignments for Fall 2014. Accordingly, the only
conclusion that can be reached based on the evidence in the record is that Hopkins handled
Kashyap’s and Douglas’s requests for POA in precisely the same manner. I therefore reject
Douglas’s argument that Kashyap remaining employed by the District after she requested POA
shows any disparate treatment of Douglas by the District.
D. The Selection of Other Adjunct Instructors for Course Assignments in Fall 2014
Instead of Douglas
Douglas’s main argument about the District’s selection of other adjunct instructors
over him for course assignments in Fall 2014 is that the department preferred to hire two new
adjunct faculty—Sarah Mohanty and Mohamed El-Ansary—rather than select him to teach an
evening course during the semester after his contentious POA process. Douglas argues that
those two instructors must be newly hired because they do not appear in the published course
38

schedules (Charging Party’s Exh. 5) or the department’s program reports (Respondent’s Exh.
26) for the three previous semesters. Douglas concludes that the department’s preference for
newly hired adjuncts over him, when he was qualified to teach any course offering in the
department, must show that the department failed to select him for a discriminatory reason.
There are at least two reasons that the argument is not persuasive.
First, as noted above, Bereaud was questioned by both Douglas and the District’s
counsel about the reasons that he recommended courses to be assigned to several adjunct
instructors who appeared, along with Mohanty and El-Ansary, in the Fall 2014 program report.
Bereaud was not questioned, however, about his reasons for recommending Mohanty and El-
Ansary for course assignments or even to verify whether these employees were newly hired in
the District. Hopkins was also not questioned about these two employees. Hopkins did testify
generally that she could not tell simply from looking at the department’s program reports
whether an employee was a new hire, because people often took breaks in service. Second, the
department’s program report for Fall 2014 shows an asterisk next to the names of both
Mohanty and El-Ansary. An asterisk next to the name of an employee on the report denotes
that the employee works at more than one college in the District. Spoon, whom Bereaud
confirmed worked at more than one college in the District, also had an asterisk next to her
name on the Fall 2014 program report. For these reasons, I reject Douglas’s conclusion,
without factual support, that Mohanty and El-Ansary were newly hired in the District, and do
not find that their course assignments in Fall 2014 reveal anything about the District’s actions
against Douglas.
PERB has recognized that it is within the discretion of an employer to select those
employees it considers to be the most superior for its program. (Bellevue Union Elementary
39

School District (2003) PERB Decision No. 1561, p. 4.) 	Bereaud testified about the rationale
used in his recommendations for course assignments and about specific reasons why he paired
certain adjunct instructors with particular course selections in Fall 2014. Bereaud’s specific
reasons for his recommendations corresponded with the criteria he testified about. There is no
basis to find that his reasons were pretextual. There was also no indication that Bereaud or
Hopkins found fault of any kind with Douglas’s performance as an instructor. By all accounts,
Douglas had very good performance reviews. Rather, because there were more contract
faculty hired after the hiring freeze abated, there were less course sections available for adjunct
faculty, in particular for the higher level courses that Douglas had been teaching and which he
expressed that it was his preference to continue teaching. The District’s justifications here
were supported by the evidence. It has therefore met its burden to show that it failed to assign
Douglas a course in Fall 2014 because of non-discriminatory reasons, and not because of
Douglas’s protected conduct. (Palo Verde, supra, PERB Decision No. 2337, p. 31.)
Conclusion
Although Douglas met his burden of stating a prima facie case of retaliation, the
evidence of unlawful motivation was slight in comparison with the District’s evidence of its
non-discriminatory reasons for evaluating Douglas when it did and not having a course to offer
him in Fall 2014. For all of the above reasons, the allegations in the complaint in this matter
must be dismissed.
PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire record in this
case, the complaint and underlying unfair practice charge in Case No. LA-CE-5972-E, Scott
Douglas v. San Diego Community College District, are hereby DISMISSED.
40

Right to Appeal
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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
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, § 32300.)
A document is considered “filed” when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd.
(a).) A document is also considered “filed” when received by facsimile transmission before the
close of business together with a Facsimile Transmission Cover Sheet or received by electronic
mail before the close of business, which meets the requirements of PERB Regulation 32135,
subdivision (d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds.
(b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090, 32091 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
41

on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
42