Eastern Municipal Water District (PERB 2715M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DORIAN FRANCIS CORLISS,
Charging Party,
v.
EASTERN MUNICIPAL WATER DISTRICT,
Respondent.
Case No. LA-CE-1335-M
PERB Decision No. 2715-M
May 13, 2020
Appearance: Atkinson, Andelson, Loya, Ruud & Romo by Nate J. Kowalski and Eric
T. Riss, Attorneys, for Eastern Municipal Water District.
Before Banks, Shiners, and Krantz, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Eastern Municipal Water District (District) to the
proposed decision of an administrative law judge (ALJ). The complaint alleged that
the District violated the Meyers-Milias-Brown Act (MMBA)1 and PERB Regulations2 by
terminating Dorian Francis Corliss (Corliss) in retaliation for his protected activities,
and by interfering with employee rights. In a pre-hearing memorandum, the ALJ found
that the District’s answer admitted most material facts and raised no properly pled
1 The MMBA is codified at Government Code section 3500 et seq.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

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affirmative defenses. At Corliss’s request, the ALJ authorized the parties to file
motions for summary judgment in advance of the formal hearing, and Corliss did so.
On the two dates set for formal hearing, the ALJ denied the District’s requests to
amend its answer, and granted Corliss’s summary judgment motion as to his
retaliation claims and one of his two interference claims. After hearing limited
testimony, the ALJ dismissed the remaining interference claim. The ALJ explained his
rulings in a lengthy proposed decision.
In its exceptions, the District mainly contends the ALJ erred in these
conclusions: that the District admitted facts establishing a prima facie case of
retaliation; that the District waived all affirmative defenses by not sufficiently pleading
them in its answer; that allowing the District to amend its answer to cure the perceived
pleading defects would prejudice Corliss; and that partial summary judgment should
be granted in Corliss’s favor. Corliss did not file an opposition to the District’s
exceptions and filed no exceptions of his own. Having reviewed the record in this
matter and considered it in light of applicable law, we reverse the grant of partial
summary judgment and remand for further proceedings consistent with this decision.
BACKGROUND
Corliss filed the instant unfair practice charge on October 3, 2018. The District
responded by filing a five-page position statement with attached exhibits. The District
generally denied that Corliss’s rights had been violated “in any way.” More
specifically, the District contended that Corliss was terminated for “legitimate reasons
of multiple violations of policies as noted in the Notice of Proposed Discharge and final
Order of Discharge[,]” that Corliss engaged in threatening and insubordinate behavior,

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and that Corliss’s inappropriate behavior raised concerns of safety in the workplace.
The discharge notices and supporting materials originally attached to those
documents, totaling about 220 pages, constituted the exhibits to the position
statement.
On December 4, 2018, PERB’s Office of the General Counsel issued a
complaint. Paragraph 3 alleged that Corliss participated in certain activity protected
by the MMBA, including, on April 10, 2018, informing District Human Resources
Director Laura Zamora (Zamora) that “he was not happy with [announced] major job
changes and that he intended to file a grievance,” and on April 11, 2018, invoking his
“Weingarten rights” during a meeting with one of the District’s managers.3 In
paragraphs 4 and 6, the Complaint identified three adverse actions allegedly taken in
reprisal for Corliss’s protected activity: that on April 12, 2018, the District served
Corliss with a Notice of Proposed Discharge and an Administrative Leave Letter, and
on May 1, 2018, the District finalized his proposed discharge. Paragraphs 5 and 7
alleged that the District took these adverse actions because of Corliss’s various
protected activities described elsewhere in the Complaint.
The Complaint also alleged two counts of interference with employee rights.
Paragraphs 8 and 9 alleged the District’s Administrative Leave Letter interfered with
protected rights by prohibiting Corliss from entering District property or “contact[ing]
3 In National Labor Relations Board v. J. Weingarten, Inc. (1975) 420 U.S. 251,
the U.S. Supreme Court affirmed that an employer must grant an employee’s request
for union representation during an investigative interview which the employee
reasonably believes may result in discipline. (Jurupa Unified School District (2015)
PERB Decision No. 2450, p. 15, fn. 8; County of San Bernardino (Office of the Public
Defender) (2015) PERB Decision No. 2423-M, p. 36.)

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any District employee,” other than Corliss’s designated representative, without first
contacting Zamora (the “gag order” allegation). Paragraphs 10 and 11 alleged that
Zamora interfered with protected rights when she “laughed very loudly” and yelled at
Corliss in the District’s parking lot after Corliss expressed his dissatisfaction with
proposed job changes and said he intended to file a grievance over the matter (the
“parking lot” allegation).
On December 17, 2018, the District timely answered the Complaint by admitting
certain facts, including that it had taken the adverse actions against Corliss described
in paragraphs 4 and 6, and that it had issued the “gag order” described in paragraph
8. The District’s answer generally and specifically denied that Corliss had engaged in
protected activity, as alleged in paragraph 3, and likewise generally and specifically
denied that it took any actions against Corliss because of protected activity.
The District’s answer asserted two affirmative defenses. Its first affirmative
defense stated: “The charging party fails to state an unfair labor practice. The
Respondent’s position is set forth in a November 6, 2018 letter to PERB, incorporated
herein by reference.”4 The District’s second affirmative defense stated: “The charging
party has provided no evidence of a prima facie case that the District has committed
an unfair practice under MMB[A] and/or PERB Regulations.”
4 The “November 6, 2018 letter to PERB” was the District’s initial position
statement, which we summarize ante at pages 2-3. The ALJ referred to the same
document by the date that PERB actually received it, which was November 7, 2018.
We refer to the position statement without mentioning either its letterhead date or its
receipt date, except when we quote the District or ALJ in their references to such
dates.

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Thereafter, the matter was transferred to PERB’s Division of Administrative
Law, and the assigned ALJ noticed the matter for formal hearing. Corliss requested
leave to file a summary judgment motion, which the District opposed. On July 9,
2019, the ALJ issued a pre-hearing memorandum “clarifying the issues in advance of
the hearing,” and addressing Corliss’s request for leave to file a summary judgment
motion. The ALJ observed that the District admitted in its answer that it took adverse
actions against Corliss, as alleged in Complaint paragraphs 4 and 6, and that it issued
the “gag order” as alleged in paragraph 8. The ALJ continued:
“The District’s answer also asserts two affirmative defenses:
that Corliss has failed to state a legal claim and a prima facie
case of an unfair labor practice under the MMBA and PERB
Regulations. 	Although 	the 	District’s 	answer 	seeks 	to
incorporate by reference the contents of its November 7,
2018 	position 	statement, 	it 	does 	not 	specifically 	assert
business necessity, waiver by contract, or any other legal or
equitable doctrine cognizable as a ‘but for’ defense to the
reprisal allegations of paragraphs 3 and 6 of the Complaint.
Nor does it assert any legitimate business justification in
response to the interference allegations in paragraphs 9 and
11 of the Complaint.”
The ALJ granted Corliss leave to file a summary judgment motion.
On July 22, 2019, Corliss filed a summary judgment motion and supporting
documents. Corliss’s motion relied throughout on the above-quoted passage from the
ALJ’s pre-hearing memorandum. On August 2, 2019, the District filed its Opposition
to Corliss’s motion, reiterating affirmative defenses to the retaliation claims first raised
in its position statement, asserting a business justification defense to the “gag order”
interference allegation, and disputing multiple facts raised in Corliss’s motion.

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On August 7, 2019, the first day of hearing, the District made the first of two oral
motions to amend its answer. In this initial motion, the District sought to include
additional affirmative defenses asserting that issue preclusion and/or claim preclusion
applied based on concluded District administrative proceedings upholding Corliss’s
discharge. The ALJ denied the District’s motion, finding these defenses to be untimely
and unduly prejudicial to Corliss.5 The ALJ then issued a tentative ruling granting
Corliss’s summary judgment motion as to the retaliation claims and the “gag order”
allegation.
On August 12, 2019, the second and final day of hearing, the District made an
oral motion to continue the hearing to allow it to amend its answer to state more
particularly which defenses in its November 2018 position statement it asserted as
affirmative defenses to the Complaint. In the absence of a joint agreement on a
continuance, the ALJ denied the District’s request. The ALJ found the motion was
untimely and would result in unfair prejudice by permitting the District to raise new
affirmative defenses while Corliss’s summary judgment motion was pending.
On September 30, 2019, the ALJ issued the proposed decision, explaining his
reasons for dismissing the parking lot claim and granting Corliss summary judgment
with respect to the retaliation claims and the “gag order” interference claim.6 The
District filed timely exceptions to the proposed decision.
5 Corliss explained that he had relied on “the existing state of the pleadings
when moving for summary judgment,” and consequently had not addressed defenses
that had not been raised.
6 The ALJ permitted testimony on the parking lot interference allegation but did
not permit testimony on any other allegations. In describing the parking lot incident,

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DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 6.)
Under this standard, we review the entire record and are free to make different factual
findings and reach different legal conclusions than those in the proposed decision.
(City of Milpitas (2015) PERB Decision No. 2443-M, p. 12.) The Board may affirm,
modify, or reverse the proposed decision, order the record re-opened for the taking of
further evidence, or “take such other actions as it considers proper.” (PERB
Reg. 32320, subd. (a)(2); Regents of the University of California (2018) PERB
Decision No. 2601-H, p. 12 (Regents).)
I. 	PERB’s Liberal Pleading and Amendment Standards
Sound public policy reasons support PERB’s preference for hearing cases on
their merits, notwithstanding technical non-compliance with matters of form. (County
of Santa Clara (2018) PERB Decision No. 2613-M, p. 7, citing United Farm Workers of
America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 916.) “We are
sensitive to the fact that PERB is not a court, but an administrative agency, and that
the formalities of practice and procedure in the judicial system are not always
appropriate for fulfillment of PERB’s mission, which includes assisting parties and
representatives who are laypersons.” (County of San Luis Obispo (2015) PERB
Zamora denied that she “laughed very loudly” or yelled. Corliss presented no
contravening testimony. At the close of Corliss’s case-in-chief, the ALJ granted the
District’s oral motion to dismiss the parking lot interference allegation for lack of proof.
Neither party filed exceptions regarding the parking lot allegation. Accordingly, the
ALJ’s conclusions regarding that issue are not before the Board and we do not disturb
the ALJ’s decision to dismiss that allegation.

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Decision No. 2427-M, p. 28.) Generally, “[a]dministrative proceedings are not bound
by strict rules of pleading.” (City of Davis (2018) PERB Decision No. 2582-M, p. 11,
fn. 5, quoting Pacific Gas & Electric Co. v. Public Utilities Com. (2015) 237
Cal.App.4th 812, 862.) Thus, PERB has observed that so long as a party is informed
of the substance of the charge or defense and afforded the basic, appropriate
elements of procedural due process, the party “cannot complain of a variance
between administrative pleadings and proof.” (City of Roseville (2016) PERB Decision
No. 2505-M, p. 23.)
PERB similarly favors the liberal amendment of pleadings, “so that parties are
not deprived of the opportunity to have their issues heard on the merits due to legal
technicalities.” (Regents, supra, PERB Decision No. 2601-H, p. 12.) PERB
Regulations explicitly provide that a party may amend a complaint during a hearing
unless the amendment “would result in undue prejudice to other parties.” (PERB
Reg. 32648; Contra Costa Community College District (2019) PERB Decision
No. 2669, p. 8 (Contra Costa), citing Fresno County Superior Court (2017) PERB
Decision No. 2517-C, p. 11, partially set aside on other grounds, Superior Court v.
Public Employment Relations Bd. (2018) 30 Cal.App.5th 158.) Even if an amended
pleading would prejudice the other party, it is appropriate to grant the requested
amendment if the ALJ can order accommodations that sufficiently alleviate the
prejudice, typically a continuance that allows additional time to prepare the case.
(Contra Costa, supra, PERB Decision No. 2669, p. 8.) Although PERB Regulations do
not explicitly reference amendments to an answer, we hold that a Board agent’s broad

9
powers under Regulation 32170 warrant treating motions to amend an answer on the
same basis as motions to amend a complaint.
Contra Costa, supra, PERB Decision No. 2669, issued just days before the
instant proposed decision, is particularly instructive. There, after the charging party
rested his case-in-chief, the respondent made a motion to dismiss the complaint.
After hearing oral argument from both parties, the ALJ ordered a recess for the rest of
the day to deliberate on the motion. During that recess, and before the respondent
presented any evidence, the charging party e-mailed the ALJ a motion to amend the
complaint to include new factual allegations. (Id. at p. 3.) The ALJ granted the
respondent’s motion to dismiss and denied the charging party’s motion to amend,
finding the amendment to be untimely and prejudicial. (Id. at p. 7.)
On appeal, we disagreed and remanded for consideration of the proposed
amendments. We explained that the “rationale behind requiring a respondent to show
undue prejudice in order to prevent an amendment at hearing is that a lenient
amendment standard promotes [fairness and] judicial economy [citation], and the ALJ
can and should give the respondent additional time to respond to any such
amendment,” thereby alleviating any prejudice. (Contra Costa, supra, PERB Decision
No. 2669, p. 8; see also, e.g., Regents of the University of California (1987) PERB
Decision No. 615-H, adopting proposed decision at p. 3.) We contrasted the lenient
amendment standard which arises before or during a hearing with the stricter
unalleged violations standard which attaches after all parties have rested and the
hearing record is closed. (Contra Costa, supra, PERB Decision No. 2669, p. 8.) We
found that a motion to amend made at the halfway point in the hearing is less likely to

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cause non-mitigable prejudice than a motion made at the close of a hearing. (Ibid.)
We instructed that the same core question must be answered, however, no matter
when the motion is made: Is there undue prejudice that cannot be sufficiently
mitigated by scheduling additional hearing time after an appropriate continuance?
(Ibid.)7
In some cases, however, a proposed amendment may cause so little prejudice
that there is no need for a continuance. For instance, in Orcutt Union Elementary
School District (2019) PERB Decision No. 2626, on the first day of hearing the
charging party moved to dismiss respondent’s newly amended answer alleging two
additional affirmative defenses. The ALJ found there was no prejudice to the charging
party in accepting the respondent’s amended answer “because the facts and
argument underlying the [respondent’s] impossibility and business necessity defenses
have been known to the [charging party] since the [respondent] filed its position
statement.” (Id., adopting proposed decision at pp. 2-3.)
7 In Beverly Hills Unified School District (1990) PERB Decision No. 789 (Beverly
Hills), we affirmed the ALJ’s finding that the respondent could not raise an untimely
contract waiver defense, because the ALJ had directly inquired about the potential
relevance of the contract at the outset of the hearing and the respondent at that time
stated it would not rely on the contract as a defense. (Id. at p. 13, adopting proposed
decision at pp. 18-19.) Similarly, in Los Angeles Unified School District (1988) PERB
Decision No. 659, the ALJ directly asked the parties if a particular issue would be in
dispute and received assurances that it would not. We therefore affirmed the ALJ’s
decision not to allow the charging party to amend the complaint late in the hearing,
after the respondent (relying on the earlier assurance) had already presented its case.
(Id. at p. 13, adopting proposed decision at pp. 42-44.)

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II. 	The District’s Motions to Amend its Answer
As noted above, the District moved to amend its answer on both of the two
hearing days. The second of these motions directly sought to address the ALJ’s belief
that the District had not adequately pled its affirmative defenses in its answer.
Specifically, at the start of the second day of hearing, before Corliss opened his case-
in-chief, the District sought to continue the hearing and amend its answer to state
more particularly which defenses in its November 2018 position statement it was
asserting as affirmative defenses to the Complaint. The ALJ denied the motion,
concluding that Corliss would be unfairly prejudiced if the District raised new
affirmative defenses while the summary judgment motion was pending.
In rejecting the District’s effort to cure perceived procedural defects in the
answer, the ALJ apparently believed that to avoid prejudice to Corliss, the District was
required to move to amend its answer before Corliss filed his motion. But, as we held
in Contra Costa, there is no absolute bar to curing or otherwise amending a pleading
while a dispositive motion is pending. Indeed, we reached the same result in Contra
Costa. (Contra Costa, supra, PERB Decision No. 2669, pp. 7-9; see also Bostrom v.
County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662-1663 [party opposing
summary judgment motion should be given opportunity to amend its pleading before
entry of judgment, when it appears from opposition materials that opposing party could
cure deficiency].)
Furthermore, prejudice typically means that a party has been prevented from
preparing or presenting evidence or argument. It does not typically mean that an
amendment improves one party’s pleadings and thereby presents an additional

12
obstacle to the opposing party; were that the case, nearly every proposed amendment
would be prejudicial. If Corliss was prejudiced by the District’s proposed
amendments, the ALJ could have granted a continuance to allow him to amend his
summary judgment motion and/or prepare for the hearing.8
We therefore answer in the negative our core inquiry: Corliss would not have
suffered undue prejudice if the District had been allowed to amend its answer at the
hearing, and if some prejudice was shown, it could have been mitigated sufficiently via
an appropriate continuance.9
8 We need not determine whether Corliss had sufficient grounds to obtain such
a continuance. However, we note that Corliss apparently was (or should have been)
aware of certain affirmative defenses prior to the District’s motions to amend. The
District’s primary affirmative defense—its alternative, non-discriminatory basis for its
adverse actions—was clear in the District’s November 2018 position statement. To
the extent the District’s position statement did not spell out legitimate business
justification as an affirmative defense to the “gag order” interference allegation, the
District’s opposition to Corliss’s summary judgment motion made it express.
9 We note significant contrasts between the instant case and Regents, supra,
PERB Decision No. 2601-H, on which the ALJ heavily relied. There, the respondent
filed no answer whatsoever. On the day prior to the hearing, the respondent sought to
avoid a default judgment by seeking leave to file a tardy answer. (PERB Reg. 32644,
subd. (c) explicitly provides that a respondent waives any right to a hearing by failing
to file an answer.) However, the respondent’s counsel admitted that he had been
aware of the need to file such a motion for more than eight weeks, yet waited until the
day before the hearing to do so. (Id. at p. 16.) The ALJ found, and the Board
affirmed, that the respondent failed to establish good cause for the late filing. (Id. at
p. 17.) Thus, as in Beverly Hills, supra, PERB Decision No. 789, and Los Angeles
Unified School District, supra, PERB Decision No. 659, PERB’s liberal pleading and
amendment rules were not allowed to make gamesmanship permissible. In contrast,
here the District filed an answer that generally and specifically denied critical elements
of Corliss’s retaliation case and asserted affirmative defenses. The District sought to
amend its answer only after the ALJ pointed out perceived deficiencies in the answer.
Although it did not move to amend immediately upon being notified of those
deficiencies, the District nonetheless moved to amend the answer prior to any

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III. 	Corliss’s Summary Judgment Motion
A Board agent may reach a final decision on the merits without holding an
evidentiary hearing if the pleadings (together with any stipulations and any facts that
may be administratively noticed) establish that there are sufficient undisputed facts to
make a hearing unnecessary. (PERB Reg. 32207; see, e.g., Cal Fire Local 2881
(Tobin) (2018) PERB Decision No. 2580-S, p. 2.) This case does not fall into that
category of cases, however, as there are facts in dispute that are material to the
outcome.
For instance, while the District’s answer admitted taking the adverse actions
alleged in paragraphs 4 and 6 of the Complaint, the District generally and specifically
denied that Corliss engaged in protected activity (paragraph 3) or that it took adverse
action against Corliss because of his protected activity (paragraphs 5 and 7). The
District’s general and specific denials of both the protected activity and the nexus
allegations in the Complaint provided notice to Corliss that it would attempt to rebut
these prima facie elements of the retaliation claim. (Regents, supra, PERB Decision
No. 2601-H, p. 14; Beverly Hills, supra, PERB Decision No. 789, pp. 12-13.) Likewise,
evidence being presented at the hearing. Because this delay does not indicate
gamesmanship, the District should not be penalized for waiting until the start of the
second day of hearing to move to amend its answer. (Contra Costa, supra, PERB
Decision No. 2669, pp. 7-9.)
Moreover, having found that the ALJ should have permitted the District to
amend its answer, we need not determine whether the District initially stated its
affirmative defenses in a defective manner. Resolving that issue would require us to
address a procedural question of first impression: whether a respondent’s answer may
properly incorporate by reference all or some of the respondent’s earlier position
statement. We express no opinion on that issue, as it is immaterial to the outcome
and does not appear to be a recurring issue in need of resolution.

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the District’s general and specific denials in paragraph 9 of the answer that the “gag
order” interfered with protected rights put Corliss on notice that the District would
attempt to rebut the prima facie elements of that interference claim. Accordingly,
Corliss was required to establish those contested elements at hearing, regardless of
affirmative defenses put forward by the employer. (Grossmont Community College
District (1980) PERB Decision No. 117, pp. 3-4.) Thus, even if the District’s
affirmative defenses were procedurally deficient, and even setting aside our
conclusion that the District should have been permitted to amend its answer, summary
judgment was still inappropriate as to the retaliation claim and the “gag order”
interference claim, as it remained Corliss’s burden to introduce sufficient evidence to
establish a prima facie case. (Ibid.; San Bernardino County Superior Court (2014)
PERB Decision No. 2392-C, p. 8, fn. 11 [“Even if this matter were treated as a motion
for summary judgment, a moving party bears the burden of proving that no disputed
issue of fact exists and that it is entitled to judgment as a matter of law.”].)10
10 We note that discrimination and retaliation cases are particularly ill-suited to
resolution by motion without a hearing. In deciding such a case, “we weigh the
evidence supporting the employer’s justification for the adverse action against the
evidence of the employer’s unlawful motive.” (San Diego Unified School District
(2019) PERB Decision No. 2666, p. 7.) Evidence offered in support of the charging
party’s prima facie case may undermine or support the respondent’s affirmative
defense, while evidence offered in support of the defense may undermine or support
the prima facie case. (See, e.g., Regents of the University of California (2020) PERB
Decision No. 2704-H, pp. 24-41, 44-45 [employer’s cursory investigation of
employees’ alleged misconduct indicated unlawful motive and undermined justification
for adverse action].) “As a result, the outcome of a discrimination or retaliation case
ultimately is determined by the weight of the evidence supporting each party’s
position.” (San Diego Unified School District, supra, PERB Decision No. 2666, p. 7.)
Because discrimination and retaliation cases are inherently fact-specific, it is the rare
case that can be decided on a dispositive motion.

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In sum, the proposed decision erred by: (1) granting partial summary judgment
to Corliss despite the presence of material disputed facts; and (2) failing to apply the
proper lenient amendment standard to the District’s motion to amend its answer, and
instead finding the equivalent of a waiver or technical default. In doing so, the
proposed decision departed from PERB’s longstanding policy of “not depriv[ing
parties] of the opportunity to have their issues heard on the merits due to legal
technicalities.” (Regents, supra, PERB Decision No. 2601-H, p. 12.)
An ALJ’s primary responsibility is to “[i]nquire fully into all issues and obtain a
complete record upon which the decision can be rendered.” (PERB Reg. 32170.)
Consistent with this mandate, ALJs should decide the merits of a case on a dispositive
motion only when the facts truly are undisputed and the parties have had full
opportunity to assert any claims or defenses that do not prejudice the other party.
ORDER
For the foregoing reasons, the partial grant of summary judgment in Case No.
LA-CE-1335-M is hereby REVERSED and the matter is REMANDED to the Division of
Administrative Law. The only part of the proposed decision that shall remain in force
as the law of the case is the ALJ’s dismissal of the allegations contained in
paragraphs 10 and 11 of the Complaint.
On remand, the assigned ALJ shall set a deadline by which the District may file
a renewed motion to amend its answer to plead the affirmative defenses the District
raised in its oral motions on August 7 and August 12, 2019. The ALJ shall resolve any
such renewed motion in a manner consistent with this decision. The ALJ shall then
resolve the merits of the parties’ claims and defenses based upon the evidence

16
presented at hearing and any stipulations, as well as any facts that may be subject to
administrative notice.
Members Banks and Shiners joined in this Decision.