State of California (Department of Corrections) (PERB 1826S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JULIA R. ZANCHI,
Charging Party,
v.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS),
Respondent.
Case No. LA-CE-599-S
PERB Decision No. 1826-S
March 3, 2006
Appearances: Law offices of Richard J. Papst by Richard J. Papst, Attorney, for Julia R.
Zanchi; State of California (Department of Personnel Administration) by Linda Nelson, Labor
Relations Counsel, for State of California (Department of Corrections).
Before Duncan, Chairman; McKeag and Neuwald, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Julia R. Zanchi (Zanchi) to an administrative law
judge's (ALJ) proposed decision (attached). The unfair practice charge alleged that the State
of California (Department of Corrections) (DOC) violated section 3519 of the Ralph C. Dills
Act (Dills Act) 1 by retaliating against Zanchi because she filed a grievance. Zanchi alleges
that DOC began investigations (criminal and civil) into claims she presented in a grievance
requesting reimbursement for airline tickets she did not use while in the position of acting
sergeant. She also alleges that she was denied an extension of a limited term assignment and
denied a promotion to the position of correctional sergeant on a permanent basis.
1The Dills Act is codified at Government Code section 3512, et seq.

The original unfair practice charge was dismissed by a Board agent on February 25,
2003. Zanchi appealed to the Board and the dismissal was reversed in State
of
California
(Department
of
Corrections) (2003) PERB Decision No. 1579-S (Corrections). PERB issued a
complaint and the case proceeded to hearing before an ALJ. The ALJ concluded that Zanchi
had met her burden to state a prima facie case, but that DOC also met its burden in presenting
its defense and did not violate the Dills Act. In her proposed decision the ALJ found the case
should be dismissed. Zanchi then filed exceptions to the proposed decision.
We have reviewed the complete record including, but not limited to, the unfair practice
charge and amended charge, the warning and dismissal letters, the appeal
of
the dismissal, the
response to the appeal, the decision reversing the Board agent's dismissal, the complaint,
Zanchi' s post hearing brief, the closing brief
of
DOC, the ALJ' s proposed decision, Zanchi' s
exceptions to the proposed decision and DOC' s response to the exceptions. We find the
proposed decision cannot be adopted as to the issue
of
whether or not Zanchi established a
prima facie case. We agree with the result
of
the ALJ's proposed decision in dismissing the
charges, but not the analysis
of
the case. We find the initial Board agent warning and dismissal
letters were correct in stating that Zanchi did not establish a prima facie case.
We vacate the decision in Corrections and adopt the warning and dismissal letters
of
the Board agent as the decision
of
the Board itself for the reasons stated below.
BACKGROUND
In August 2001, Zanchi and her husband (who is also an employee
of
DOC) purchased
airline tickets for a trip to Paris, France, that was to commence October 29, 2001, with return
to the United States November 5, 2001. Zanchi had approved leave for this time period.
At the end
of
September 2001, Zanchi was offered an assignment as acting sergeant.
The assignment started October 1, 2001. She accepted the assignment and began work. 	She
2

then interviewed for a permanent sergeant position. She received a one year limited term
assignment but was not promoted to a permanent position. The limited term was not extended
beyond one year. At the time she started the acting sergeant assignment it was the policy of
the institution where she worked for those serving in out-of-class assignments to forfeit any
vacation scheduled during that period.2 She inquired of the personnel department as to how
long she would be in the acting sergeant position and asked if she would be able to take the trip
to Paris. She was told the assignment would take three to six months and that she would not be
able to take the vacation because of the cost of overtime in covering her shifts. At some point,
she applied for and received a one year limited term assignment as a sergeant and then applied
for a permanent position. She served one year in the limited term assignment. It was not
renewed and she did not receive a promotion to sergeant.
Zanchi did not take her vacation. She filed a grievance for loss of vacation and
requested reimbursement for the airline tickets that had been purchased. After the fourth level
grievance was denied Zanchi filed the unfair practice charge with PERB. She also charged that
as a result of DOC animus against her she was denied promotional opportunities.
The Board agent advised Zanchi in the February 25, 2003, dismissal letter that Zanchi
had not established a prima facie case. The Board agent said,
... the charge does not state a prima facie case. Zanchi's claim is
that her exercise of the statutorily protected right of filing
grievances caused her to be investigated for conspiracy to commit
fraud against the State and negatively impacted her future job
opportunities. In her grievance, Zanchi asked that the department
vacation policy be changed and [for] reimbursement for non-
refundable airplane tickets. The investigation of the grievance
necessarily entailed inquiry regarding the truth of the information
she provided, and the department determined that the grievance
had no merit. [Fn. omitted.] The criminal and administrative
The policy was changed May 31, 2002. As of that date employees were no longer
required to give up scheduled vacations to be selected for out-of-class assignments.
3

investigations were a natural outgrowth of the grievance
investigation when a question arose regarding reimbursement of
funds under possible false pretenses. These events did not
transpire solely due to the filing of the grievance itself. Had
Zanchi not sought reimbursement, the fraud issue would not have
surfaced and the resulting investigations not been initiated. In
addition, there was no evidence presented that the employer
retaliated against her for filing a grievance versus seeking
monetary reimbursement under possible false pretenses.
The allegation that she suffered further retaliation by being
denied a permanent appointment to correctional sergeant or the
assignment of a second limited term also fails. 	Zanchi has not
shown any nexus between the denial of promotional opportunities
and the filing of her grievance. In fact, she completed her limited
term assignment which was for a specific one year period during
the grievance process, and continued to serve in the position even
after she had been placed under criminal investigation.
Employees in the first three ranks are all 'reachable' to receive
permanent positions. As such, there was no showing that the
failure to promote Zanchi or to receive a second limited term
assignment were in retaliation for the filing of her grievance.
DISCUSSION
Contrary to the Board agent findings, in Corrections the Board found that Zanchi
presented a prima facie case of a violation of the Dills Act by alleging that DOC investigated
her because of the claims she made in her grievance. The Board said, "In evaluating whether a
prima facie case has been established, the charging party's essential allegations are deemed
true." (Golden Plains Unified School District (2002) PERB Decision No. 1489 (Golden
Plains); San Juan Unified School District (1977) EERB3 Decision No. 12.)4 While facts are
taken as true, there must also be a nexus between protected activity and the employer's actions
to establish a prima facie case. As the Board agent correctly noted, there was no nexus.
3Prior to 1978, PERB was known as the Educational Employment Relations Board
(EERB).
4Under Golden Plains, the charging party must allege facts in support of a prima facie
case not merely conclude that nexus is established.
4

The Board found the investigation was an adverse action even though the allegations
against Zanchi were sustained. The Board found further that a complaint should issue based on
DOC' s refusal to extend Zanchi' s limited term assignment and refusal to promote her to
sergeant.
To determine a violation of Dills Act section 3519(a) the charging party must show
that: 	(1) the employee exercised rights under the Dills Act; (2) the employer had knowledge of
the exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employee because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210.)
After the Board ordered a complaint issue, the case was heard by an ALJ. The ALJ
found that Zanchi had established a prima facie case, based on the Corrections decision, but
determined Zanchi did not meet her burden of disproving her misconduct. The ALJ said:
[Zanchi] denies having done anything wrong. However, her
denial is not supported by any other evidence, most notably her
husband's failure to appear at the hearing, and is contradicted by
Mosher's[5l unrebutted testimony and by OIA, which investigated
the matter and sustained the allegations against her.
The ALJ also looked at the facts in light of the Pittsburg Unified School District (1978)
PERB Decision No. 47 case. There, employees were disciplined for distributing a union flyer
that included personnel attacks and sexual innuendo about various employees of the district.
The Board found the district was not motivated by the protected activity of the employees but
by the inflammatory and inappropriate content of the flyers. 	The inappropriate content was not
5Patricia Mosher (Mosher) was a co-worker of Zanchi's husband. Mosher advised her
supervisor that Zanchi's husband told her about planning to cancel the trip to Paris after the
September 11, 2000, attacks and encouraging his wife to file for reimbursement of the airline
tickets.
5

protected. Here, the ALJ found DOC was motivated by the unprotected contents
of
the
grievance which was a fraudulent claim for reimbursement. She then determined there was
insufficient nexus between the denial
of
Zanchi' s promotional opportunities and the protected
activity
of
filing a grievance. The problem with Zanchi was not that she filed a grievance but
that a portion
of
what she said in it was fraudulent. 	She was investigated not because she filed
the grievance but because a co-worker
of
her husband indicated she was making a fraudulent
claim for reimbursement
of
funds.
We agree with the ALJ that there is insufficient nexus and that a fraudulent claim is not
protected activity. We do not agree with the ALJ that Zanchi established a prima facie case.
There must be a nexus between the protected activity and the employer's action for there to be
a prima facie case. Filing a grievance is protected activity. Making a fraudulent claim is not.
As noted above, Zanchi was not investigated because she filed a grievance. She was
investigated because
of
statements her husband made to a co-worker which lead to the
discovery
of
fraud. 	Whether she had filed the grievance or not, she would have been
investigated for making a fraudulent claim.
We also agree with the ALJ that there was no unlawful animus toward Zanchi by DOC
that could have led to her being denied promotional opportunities.
We therefore find there was no prima facie case. We also find that committing fraud is
not a protected activity. Because the fraudulent claim is not protected activity and there was
no nexus between the non-fraudulent portion
of
the grievance and the employer's activity, the
complaint should not have issued and the charge should have been dismissed.
6

ORDER
The Board VACA TES State
of
California (Department
of
Corrections) (2003) PERB
Decision No. 1579-S; and the unfair practice charge filed in Case No. LA-CE 559-S is hereby
DISMISSED WITHOUT LEA VE TO AMEND.
Member McKeag joined in this Decision.
Member Neuwald's concurrence and dissent begins on page
8.
7

NEUW ALD, Member, concurring and dissenting: Based upon the facts and the entire
record in this matter, I believe that State
of
California (Department
of
Corrections) (2003)
PERB Decision No. 1579-S (Corrections) should not be vacated. I believe it was properly
decided and should stand. To overturn this decision would not be instructive. The greater
Public Employment Relations Board (Board) community would be left wondering what unique
or novel distinction the Board wished to eliminate in determining a prima facie case
of
retaliation. Therefore, I dissent to Chairman Duncan's decision that Corrections should be
vacated.
However, I concur with Chairman Duncan that Julia
R.
Zanchi (Zanchi) failed to
demonstrate an unfair practice occurred. The State
of
California (Department
of
Corrections)
(DOC) did not initiate the investigation because Zanchi filed a grievance. Rather, the
fraudulent claim for reimbursement motivated DOC to conduct the investigation. Filing a
grievance, a protected activity, does not shield Zanchi's unprotected conduct. Thus, the
complaint and underlying unfair practice charge in Case No. LA-CE-599-S are without merit
and should be dismissed.
8

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
JULIA R. ZANCHI,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS),
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-599-S
PROPOSED DECISION
(April 21, 2005)
Appearances: Law Offices of Richard J. Papst by Gael G. Mueller, Attorney, and Richard J.
Pabst, Attorney, for Julia R. Zanchi; State of California (Department of Personnel
Administration) by Linda Nelson, Labor Relations Counsel, for State of California
(Department of Corrections).
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
An unfair practice charge was filed on January 8, 2003, by Julia R. Zanchi (Zanchi)
against the State of California (Department of Corrections) (DOC) alleging that the DOC
initiated a criminal and an administrative investigation against her, denied her a promotion to
sergeant, and denied an extension of her limited term assignment, all in retaliation for her
protected activity of filing a grievance. The charge was dismissed by an agent of the Public
Employment Relations Board (PERB or Board) on February 25, 2003. Zanchi appealed, and
on December 31, 2003, the dismissal was reversed in Zanchi v. State of California
(Department of Corrections) (2003) PERB Decision No. 1579-S (Zanchi). Thereafter, on

January 9, 2004, the General Counsel of PERB issued a complaint1 alleging that by the above
conduct the DOC violated the Ralph C. Dills Act (Dills Act) section 3519(a).2
In its answer, DOC denied any wrongdoing. An informal conference held on March 12,
2004, at PERB's Los Angeles office failed to resolve the matter. A formal hearing was held
before me on August 9 and 10, 2004. A review of the record after the hearing revealed that
there was insufficient evidence to make a fair and reasoned determination as to whether the
DOC's conduct was unlawfully motivated. In a telephone conference call which I initiated on
October 14, 2004, I offered Respondent the opportunity to move to reopen the record in order
to call additional witnesses to testify as to DOC's motivation. Thereafter, counsel for the DOC
filed an unopposed motion to reopen the record, which I granted by order of November 17,
2004. The record was reopened and an additional day of formal hearing was held before me on
February 10, 2005.
After the submission of post-hearing briefs, the matter was submitted for decision on
April 11, 2005.
FINDINGS OF FACT
Zanchi is a state employee within the meaning of Dills Act section 3513(c). She has
been a correctional officer since January 2001 and has worked at the California Correctional
Institute (CCI) facility at Tehachapi since July 1998. She is a member of a bargaining unit
1 The complaint alleges that the investigations were unlawfully initiated by the DOC
through its agent Paul Burgess (Burgess), senior special agent, Office oflnternal Affairs
(OIA).
2 The Dills Act is codified at Government Code section 3512 et seq. Section 3519(a)
makes it unlawful for a state employer to:
Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise ofrights guaranteed by this chapter.
2

represented by the California Correctional Peace Officers Association (CCPOA). The DOC is
an employer within the meaning
of
section 3513(j).
The events herein began in late 2001.3 Pursuant to CCI practices, Zanchi obtained
approved vacation leave for the weeks
of
October 29, December 10, and December 17. She
and her husband Tracy, who was also employed by CCI at Tehachapi, were planning a trip to
Paris from October 30 to November 5, for which they had purchased airline tickets on US
Airways in August through Expedia.com, an internet website, for a total cost
of
just under
$800.4 The printed reservation confirmation read: "[T]icket is nonrefundable, non-
exchangeable and nontransferable." Zanchi testified that after 9/11, her husband initially
wanted to cancel the trip. Zanchi therefore called US Airways and was told she had to abide
by the Expedia.com policy. In her unfair practice charge, Zanchi alleged that she also called
Expedia.com; however, at the hearing she could not recall whether she herself contacted
Expedia.com. She testified that Tracy had called Expedia.com, but she could not recall what
he told her about the conversation. According to Zanchi, she and Tracy ultimately decided not
to reschedule or cancel the trip. However, they did not take the trip because
of
subsequent
events described below.
On September 27 or 28, Zanchi was offered an assignment as acting sergeant as
of
October
1.
	She began the assignment, and on October 2 she interviewed for a permanent
position as sergeant. Unwritten CCI policy at that time required an employee serving in an
3 All dates hereafter refer to the year 2001 unless otherwise specified.
4 The Zanchis had incurred other costs, e.g., securing passports, purchasing luggage,
and applying for an international driver's license, but had not yet made hotel reservations.
3

out-of-class assignment to forfeit any vacation scheduled during that period. 5 Thus, on
October 3, Zanchi contacted Sergeant George Katsakaris (Katsakaris)
of
CCI's Personnel
Assignments Office and asked him how long her acting assignment would be and
if
she would
still be able to take her October/November vacation. She claims that she also told him about
the non-refundable airline tickets.6 In this regard, the Memorandum
of
Understanding (MOU)
between the Association and the DOC,
of
which Zanchi became aware at some time during the
events herein, contained the following provision:
If
the State cancels a scheduled vacation or CTO leave and the
employee suffers an economic loss, the State shall reimburse the
employee for all reasonable and documented economic loss
of
the
employee provided the employee:
1.
	Notifies the employer at the time he/she is told
of
the
vacation/CTO leave cancellation that economic loss will result;
2.
	Makes all reasonable attempts to recover his/her
expenses; and,
3. Provides the employer documentation
of
the economic
loss.
Katsakaris told Zanchi that her acting assignment would be from three to six months
and she would forfeit her vacation unless Lisa Stradley (Stradley), CCI's captain
of
operations,
decided otherwise. Zanchi then phoned Stradley, who also told her she could not take her
vacation, principally because
of
the overtime CCI would incur in replacing her during her
absence. According to Zanchi, Stradley said that
if
she decided to tum down the acting
5 On May 31, 2002, a memo from the warden notified CCI employees that they would
no longer forfeit their vacations while serving out-of-class assignments. It is undisputed that
this change in policy was due to Zanchi' s grievance at issue herein.
6 In his testimony, Katsakaris said he did not recall that Zanchi mentioned the airline
tickets.
4

assignment in favor
of
the vacation, she would harm her promotional abilities and her career.
Zanchi claims she told Stradley about the airline tickets.7 Stradley said she would look into it.
Stradley testified that
if
she made any remark at all to Zanchi regarding her career, it
was that she would be more likely to be promoted to sergeant from an acting position.
Stradley adamantly denied that Zanchi mentioned anything about purchasing airline tickets.
However, Katsakaris testified that shortly after he spoke with Zanchi, Stradley called and told
him Zanchi had airline tickets. Zanchi next contacted Dan Walker (Walker)
of
CCI's
Employment Relations Office, who explained her right to file a grievance and sent her
grievance forms.
Zanchi accepted the acting assignment and did not take the vacation.
On November 19 Zanchi filed a grievance against CCI for loss
of
her vacation and for
reimbursement
of
the airline expense. 8 She claims she did not file it earlier because she did not
know what the filing deadline was; further, she wanted to wait until the week
of
the scheduled
vacation, in case Stradley's decision was overturned and she would be allowed to take the
vacation after all. The grievance accused CCI
of
"practicing a double standard policy in
regards to whom they allow or disallow to take a Vacation while in an acting assignment," and
of
failing "to show any empathy for
staffs
economic losses or morale." She also complained
that "the lack
of
concern from CCPOA is intolerable." The response
of
CCI' s then-Warden M.
Yarborough (Yarborough) stated that notwithstanding its untimeliness, the grievance had been
7 Zanchi could not recall whether she was aware at that time
of
the MOU's provision
regarding reimbursement, but acknowledged that she did not discuss the possibility
ofreimbursement
of
the tickets with Stradley.
8 Zanchi did not seek reimbursement for the costs of passports or luggage, as she felt
these could be used in the future.
5

reviewed and was denied, as the acting assignment "was a competitive and personal choice"
and there was no "financial reimbursement obligation by the State."
On November 26, Zanchi was offered, and accepted, a twelve-month limited-term
assignment as sergeant.
On January
1,
2002,9 Zanchi submitted a third-level grievance rebuttal, claiming that
the grievance was timely and reiterating her vacation and reimbursement arguments. The
February
21
response from DOC's Labor Relations Office reiterated CCI's position. Zanchi
then submitted a fourth-level rebuttal, claiming that Walker had "mislead" her and
"intentionally or negligently" failed to inform her
of
the proper procedure and the filing
deadline. Zanchi further alleged that "the Labor Relations Branch did not fully or thoroughly
review the grievances that were submitted to your office."
On June 10, Zanchi submitted a memo to the California Department
of
Personnel
Administration (DPA) describing her entitlement to a vacation and to reimbursement for the
airline tickets. DP A denied her request by letter
of
July 8, which stated, inter alia: "[l]t is
Captain Stradley' s contention that she would have made an allowance in order for you to take
your vacation,
if
she had known that you had nonrefundable Airline tickets. She freely
admitted to making similar types
of
allowances for other staff." The July 8 letter also informed
Zanchi that DPA received a memo from another staff member, alleging that after 9/11 Zanchi
and her husband decided not to take their trip to Paris and that Tracy encouraged his wife to
file a grievance and seek reimbursement for the tickets, and therefore the matter was being
referred to Dave Goodman (Goodman)
of
the CCI Employment Relations Office.
The author
of
that memo was Patricia Mosher (Mosher), a coworker
of
Tracy, who
testified at the hearing that she and Tracy had a history of "personnel differences" because he
9 All dates hereafter refer to the year 2002 unless otherwise specified.
6

was a compulsive talker and would talk to her daily about subjects on which he was
"adamant," e.g., Christianity. Mosher would complain to her supervisor but apparently no
action was taken. According to Mosher, within days after 9/11 Tracy said he and his wife had
canceled their trip to Paris due to the danger
of
flying, bemoaned the fact that the airline tickets
were non-refundable, and talked about encouraging his wife to file a grievance complaining
that CCI forced her to cancel the trip because
of
her acting assignment and requesting
reimbursement for the tickets. At one point, Mosher claimed, Tracy said he was getting closer
to his wife "seeing it his way." Mosher also reported these comments to her supervisor and, at
Goodman's request, documented them by memo dated July 3.
10
As noted above, Zanchi admitted that after 9/11 she and Tracy initially considered
canceling the Paris trip, but insisted that they ultimately decided not to reschedule or cancel it.
Neither Zanchi nor Tracy, who did not testify, rebutted Mosher's testimony.
On July 13, Zanchi wrote to the California Office oflnspector General (OIG) alleging
that DOC violated the MOU provision regarding reimbursement for cancelled travel expenses;
OIG responded that alleged contract violations should be handled through the CCPOA's
grievance procedures. On August 21, Zanchi submitted a fourth level grievance response
accusing DPA Labor Relations Officer Tim Virga (Virga)
of
being "so engrossed with finding
a reason to deny my grievance that he never attempted to address the issue at hand," i.e.,
10
In support
of
its suspicions
of
fraud, DOC also presented as exhibits two memos and
one e-mail from three CCI employees to Labor Relations documenting their phone
conversations with US Airways and Expedia.com in August 2004. According to these memos,
Expedia.com said it worked closely with its suppliers to accommodate customers requesting
post-9/11 reschedules and cancellations. US Airways allegedly said that it allowed ticket
holders to reschedule their post-9/11 flights although additional costs would be incurred, that
passengers "in such circumstances" are "always" notified that they may reschedule, and that
the Zanchis did not reschedule or cancel their flight. 	I do not credit this evidence, as the
conversations and memos took place long after the events herein.
7

DOC's
contract violation, and requesting further review. Virga responded
by
memo
of
August
28 denying further review.
On October 15,
CCI's
then-Warden Arthur Calderon (Calderon)° informed Zanchi that
her limited-term assignment was about to end and that she would return to her permanent
position as correctional officer on November 25. She has remained in that position since that
time. Zanchi contends that other correctional officers had received permanent positions as
sergeant at the end
of
their limited-term assignments and that she was denied a promotion
because
of
her grievance. In support, she presented a CCI document entitled "Personnel
Movement" showing that five correctional officers were promoted to sergeant on October 31,
four
of
them from temporary positions. Zanchi claims that she had more seniority than one
of
the four, and almost as much seniority as the other three.
By
memo
of
December
21
to
DOC's
Personnel Office, Zanchi complained about not
being promoted and requested a review
of
CCI's illegal hiring and promotion practices. In
early 2003, Zanchi made the same request to DOC's Office
of
Personnel Management. That
office responded by letter
of
March 4, 2003, stating that three
of
the four correctional officers
promoted to sergeant had more seniority than Zanchi, and the fifth was a sergeant reinstated
from a limited-term to a permanent appointment. On March 19, 2003, Zanchi appealed to the
California State Personnel Board, asking that it investigate CCI's "continued and admittedly
illegal hiring practices" and that she be promoted.
DOC presented no evidence as to why Zanchi did not receive an extension
of
her
limited-term assignment, but argued that when Zanchi accepted the assignment she knew it
would only last for one year. 	Regarding the promotion, DOC, in addition to its explanation
of
the five promotions which it granted, presented evidence that two other correctional officers
11
Calderon replaced Yarborough in September 2002.
8

serving limited term assignments at the same time as Zanchi were also not promoted.
However, the record reveals that these two officers were not yet qualified, as Zanchi was, for a
permanent position as sergeant. Calderon, the sole witness to appear at the reopening
of
the
record on February 10, 2005, testified that he considered more than six days' sick leave to be
excessive and that Zanchi had exceeded that amount. 	He testified that when he becomes aware
that an employee has used excessive sick leave, he holds a conference with the employee and
his/her supervisor. However, he did not hold such a conference with Zanchi. Further, he could
not recall whether Zanchi's absences, or any other reason, contributed to her not receiving a
promotion.
In the meantime, on September 11, 2002, Zanchi received a letter from Burgess
notifying her that OIA received a complaint alleging that she "may have conspired to commit
fraud against the State" and that an investigation would be conducted. Burgess testified that
OIA has no authority to either initiate an investigation or to take action upon finding merit;
those decisions are within the purview
of
the hiring agency. In the instant case, he had
received a fraud investigation request from the warden, whereupon Burgess ordered an
investigation to be conducted under his supervision. In this regard, Calderon testified that by
the time he took over as warden the Zanchi investigation was under way, having been initiated
by his predecessor, Yarborough, and that he (Calderon) did not know why it was requested or
implemented. Yarborough did not testify.
By letter
of
November 27, 2002, OIA notified Zanchi that the "criminal investigation"
had been completed and that an "administrative investigation is now being initiated." This was
Zanchi's first knowledge that the investigation was criminal in nature, and she was never told
what the results of that investigation were. Burgess explained that a criminal investigation is
conducted only if requested by the agency, and only if there is an alleged violation of the
9

Criminal Code; he was not asked what crime Zanchi allegedly committed. Burgess also stated
that it is not OIA policy to inform the subject employee
of
the results
of
a criminal
investigation. Apparently, OIA did not refer the criminal matter to the district attorney's
office. As to the administrative investigation, OIA found that Zanchi had attempted to defraud
CCI regarding the airline tickets.
12
Burgess reported this back to Calderon, who was then the
warden, and by letter
of
January 21, 2003, from OIA, Zanchi was told that "the allegation
against you has been sustained." However, no personnel action was taken against her, as
reflected in a memo she received from Calderon dated July
1,
2003, entitled "Adverse Action
Withdrawal" stating that the investigation was completed and that "[A]fter review
of
this case
factors, it has been determined that no further action will be taken." Zanchi testified that CCI
took adverse action against Tracy, but Tracy did not testify and there is no evidence as to what
action was taken against him.
ISSUE
Did DOC retaliate against Zanchi because
of
her protected activities, in violation
of
Dills Act section 3519(a)?
CONCLUSIONS OF LAW
To demonstrate a violation
of
Dills Act section 3519(a), the charging party must show
that: (1) the employee exercised rights under the Dills Act; (2) the employer had knowledge
of
the exercise
of
those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because
of
the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
1 During its investigation, OIA interviewed, inter alia, Mosher as well as Zanchi.
10

Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer's
cursory investigation of the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
Evidence of adverse action is also required to support a claim of discrimination or
reprisal under the Novato standard. (Palo Verde Unified School District (1988) PERB
Decision No. 689.) In determining whether such evidence is established, the Board uses an
objective test and will not rely upon the subjective reactions of the employee. (Ibid.) In a later
decision, the Board further explained that:
... The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
11

employment. 	[Newark Unified School District (1991) PERB
Decision No. 864; emphasis added; footnote omitted.]
It is undisputed that Zanchi engaged in protected activity by filing a grievance
(California State University (San Francisco) (1986) PERB Decision No. 559-H), and that DOC
was fully aware
of
this activity. As to adverse impact, DOC witnesses testified that OJA
investigations which do not result in adverse action would have no impact on an employee's
career path. However, as the Board stated in Zanchi:
...
Zanchi is a peace officer and as such is held to a higher
standard
of
conduct. [Citations.] Honesty and credibility are
crucial to the proper performance
of
a peace officer's duties and
dishonesty is generally never tolerated
...
The fact that the
allegations against Zanchi were apparently sustained further
supports a finding that her career was potentially damaged.
Accordingly, I find that the investigations constituted adverse action. I also find that DOC's
failure to extend Zanchi's limited term assignment and to promote her to sergeant were adverse
actions. 	(Lemoore Union High School District (1982) PERB Decision No. 271; Little Lake
Industries (1977) 233 NLRB 1049 [75 LRRM 1101].)
As to nexus, PERB held in Zanchi that the charging party had established a sufficient
prima facie case
of
nexus between the investigations and her grievance to warrant issuance
of
a
complaint. PERB discussed the shifting burdens
of
proof:
...
[T]he legitimacy
of
the employer's proffered defense is not
part
of
the charging party's prima facie case ... In other words, the
charging party is not required to refute an employer's proffered
defense to establish a prima facie case
....
Zanchi has established direct evidence
of
motive since it is
undisputed that the investigations were initiated because
of
the
claims made in Zanchi' s grievance
....
In establishing a prima facie case, the charging party should not
be required to establish the respondent's state
of
mind, or lack
thereof. This is especially true where the respondent's state of
mind is a fact placed in contention solely by the respondent.
...
12

[Emphasis in original.]
PERB further stated that DOC's argument that it would have conducted the investigation
regardless of Zanchi's grievance does not go to the issue of nexus or defeat the prima facie
case, but rather goes to DOC's defense to be presented at the formal hearing.
As to Zanchi not getting a promotion, PERB stated in the same decision:
... [V]iewed in isolation, the Board agrees that Zanchi has
presented insufficient evidence of nexus between her grievance
and the denial of promotional opportunities. However, these
separate adverse actions should not be viewed in isolation, since
they stem from the same protected activity .... the unlawful
animus established as a result of the criminal and administrative
investigations may also be used to establish unlawful animus for
the denial of promotional opportunities ....
Accordingly, following Zanchi as the law of the case, I find that Zanchi has established a
prima facie case.
Once the charging party has established a prima facie case, the burden of proof shifts to
the employer. Normally in a retaliation case, the employer must establish that it would have
taken the action complained of even in the absence of the employee's protected activity.
(Healdsburg Union High School District (1997) PERB Decision No. 1885; Martori Brothers
Distributors v. Agricultural Labor Relations Board (1981) 29 Cal. 3d 721 [175 Cal.Rptr. 626].)
In the instant case, however, the adverse action arose directly from the employee's protected
activity, i.e., Zanchi's grievance. In analyzing the burdens of proof in such a situation, NLRB
v. Burnup & Sims, Inc. (1964) 379 U.S. 21 [57 LRRM 2385] (Burnup & Sims)13 is instructive.
There, the Court held that an employer acts unlawfully by discharging an employee for
misconduct arising out of a protected activity when it is shown that the misconduct never
13 PERB and the California courts have long held that federal decisions interpreting
similar statutes, e.g., those prohibiting retaliation, may be persuasive. (Inglewood Teachers
Association v. PERB (1991) 227 Cal.App.3d 767 [278 Cal.Rptr. 228].)
13

occurred. In its decision, the Court cites, inter alia, Rubin Bros. Footwear, Inc. (1952) 99
NLRB 610 [30 LRRM 1109] (Rubin Bros.), which "made a qualification as to burden
of
proof'
by
holding that the employer no longer needs to prove that the misconduct did in fact
occur, but only that it had an honest belief in the misconduct, after which the burden shifts to
the charging party to prove that the misconduct did not occur. The Bumup & Sims decision
does not alter the respective burdens set forth in Rubin Bros.
Here, I find that DOC has met its burden under these federal cases. 	Its defense rests on
the unrebutted evidence that after 9/11 Tracy spoke to Mosher about canceling the Paris trip
and encouraging Zanchi to file a grievance in order to get reimbursed for the airline tickets,
which the Zanchis believed they were unable to do on their own as the tickets were
nonrefundable. Mosher reported these comments to her supervisor and drafted a memo to
CCI's Employment Relations Office; CCI passed this memo on to OIA and requested an
investigation; OIA interviewed Mosher during its investigation and sustained the allegation
of
fraud against Zanchi. Thus, notwithstanding Yarborough's failure to testify and thereby
produce evidence as to his own personal motivation, the evidence which DOC presented
clearly establishes the basis for a reasonable good-faith belief in Zanchi' s misconduct and for
Yarborough's request for an OIA investigation.
I do not find that Zanchi has sustained her burden
of
disproving the misconduct. She
denies having done anything wrong. However, her denial is not supported
by any other
evidence, most notably her husband's failure to appear at the hearing, and is contradicted by
Mosher's unrebutted testimony and by OIA, which investigated the matter and sustained the
allegations against her. Nor does the fact that no personnel action was taken against her
necessarily prove her innocence; that decision may have been based on other factors, possibly
14

including a view that Tracy bore a heavier responsibility for the wrongdoing. I therefore
cannot find that no misconduct occurred.
Also instructive is a PERB case, Pittsburg Unified School District ( 1978) PERB
Decision No. 47 (Pittsburg). There, three employees were disciplined for distributing a union
flyer which contained personal attacks and sexual innuendos against various employees
of
the
school district. 	The administrative law judge, whose decision was adopted
by
the Board, did
not use a Bumup & Sims or a Rubin Bros. analysis. Rather, he made a comprehensive analysis
of
the purpose for the statutory protection
of
union activities and
of
the factors necessary to
find that an employer interfered with or retaliated against those activities, citing several NLRB
cases. The administrative law judge determined that the school district was not motivated by
the protected activity
of
distributing the flyers, but rather by the inflammatory and
inappropriate content
of
the flyers themselves. Therefore, the discharges were not unlawful.
By
analogy, in the instant case, I find it clear that CCI, which initiated the investigation, was
not motivated by Zanchi's protected activity in filing a grievance, but rather by the unprotected
contents
of
the grievance itself, i.e., a fraudulent claim for reimbursement.
Thus, under either a Bumup & Sims, Rubin Bros., or Pittsburg analysis, I conclude that
the DOC did not unlawfully retaliate against Zanchi by conducting an investigation
of
her
conduct.
Once having come to this conclusion, pursuant to the reasoning in Zanchi, there is no
longer a base upon which to find that DOC's denial
of
Zanchi's promotional opportunities was
motivated by unlawful animus. Those actions must now be viewed in isolation. I therefore
find insufficient nexus between DOC's actions in this regard and Zanchi's protected activity.
Accordingly, I conclude that DOC did not violate the Dills Act by initiating criminal
and administrative investigations of Zanchi' s claim for reimbursement of airline expenses, by
15

failing to extend her limited term assignment, or
by
failing to promote her to a permanent
position as sergeant.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, it is found that the complaint and underlying unfair practice charge in Case No.
LA-CE-599-S, Julia R. Zanchi v. State
of
California (Department
of
Corrections), are without
merit and they are hereby DISMISSED.
Pursuant to California Code
of
Regulations, title
8,
section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close
of
business
(5 p.m.) on the last day set for filing. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California Code
of
Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies
16

and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party
or
filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
17
Ann L. Weinman
Administrative Law Judge