Yuba Community College District (PERB 1936E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GARY LEE SCHOESSLER,
Charging Party,
V.
YUBA COMMUNITY COLLEGE DISTRICT,
Respondent.
Case No. SA-CE-2396-E
PERB Decision No. 	1936
December 31, 2007
Appearances: 	Chapman, Popik & White by Raquel A. Lacayo-Valle, Attorney, for Gary Lee
Schoessler; Atkinson, Andelson, Loya, Ruud & Romo by Scott K. Holbrook, Attorney, for
Yuba Community College District.
Before Neuwald, Chair; Wesley and Rystrom, Members.
DECISION
NEUW ALD, Chair: 	This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Gary Lee Schoessler (Schoessler) of a Board agent's dismissal
of his unfair practice charge. 	The charge alleged that the Yuba Community College District
(District) violated the Educational Employment Relations Act (EERA)1 by deciding not to
renew Schoessler' s contract in retaliation for commenting on and participating in a disciplinary
process involving another District employee.2 Schoessler alleged that this conduct constituted
a violation ofEERA section 3543.S(a).
1EERA is codified at Government Code section 3 540, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
2 Schoessler also alleged that the District further retaliated against him, after he retired,
by refusing to compensate him for unused vacation credits. 	Schoessler did not appealthe
dismissal of this allegation, as such, we do not discuss it here and the parties are bound bythe
Board agent's dismissal.

Based on a review of the appeal and entire record, the Board affirms the dismissal for
the reasons discussed below.
BACKGROUND
Schoessler began his career at the District in 1989 as a part-time administrator and
coordinator of the Probation Officer Academy. 	In 1992, Schoessler entered into a written
employment agreement with the District as an educational administrator. He held the position
of director of Public Safety programs. The District renewed Schoessler' s employment contract
each year for 14 years. 	On February 15, 2006, the Board of Trustees decided not to renew
Schoessler's contract as an educational administrator. Albert Alt (Alt), director of Personnel
Services and Human Resources Development, informed Schoessler of the Board of Trustee's
decision in a meeting on February 16, 2006. 	Schoessler requested that the Board of Trustees
delay its decision so that he could have counsel represent him. He received no response to his
request. 	Schoessler then asked Alt to provide him with a statement of the reasons for the
decision. He received a response on February 28, 2006. In this letter, Alt informed Schoessler
that the Board of Trustees, by unanimous vote, decided not to renew his contract pursuant to
Education Code section 72411,3 but was offering him a probationary faculty position pursuant
Education Code section 72411 provides, in pertinent part:
(a) Every educational administrator shall be employed, and all other
administrators may be employed, by the governing board of the district
by an appointment or contract of up to four years in duration. The
governing board of a community college district, with the consent of
the administrator concerned, may at any time terminate, effective on
the next succeeding first day of July, the term of employment of, and
any contract of employment with, the administrator of the district, and
reemploy the administrator, on any terms and conditions as may be
mutually agreed upon by the board and the administrator, for a new
term to commence on the effective date of the termination of the
existing term of employment.
2

to Education Code section 87458.4 The probationary faculty position represented a 40 percent
(b) If the governing board of a district determines that an administrator
is not to be reemployed by appointment or contract in his or her
administrative position upon the expiration of his or her appointment
or contract, the administrator shall be given written notice of this
determination by the governing board. For an administrator employed
by appointment or contract, the term of which is longer than one year,
the notice shall be given at least six months in advance of the
expiration of the appointment or contract unless the contract or
appointment provides otherwise. For every other administrator, notice
that the administrator may not be reemployed by appointment or
contract in his or her administrative position for the following college
year shall be given on or before March 15.
( c) If the governing board fails to reemploy an administrator by
appointment or contract in his or her administrative position and the
written notice provided for in this section has not been given, the
administrator shall, unless the existing appointment or contract
provides otherwise, be deemed to be reemployed for a term of the same
duration as the one completed with all other terms and conditions
remaining unchanged.
4Education Code section 87458 states:
A person employed in an administrative position that is not part of the
classified service, who has not previously acquired tenured status as a
faculty member in the same district and who is not under contract in a
program or project to perform services conducted under contract with
public or private agencies, or in other categorically funded projects of
indeterminate duration, shall have the right to become a first-year
probationary faculty member once his or her administrative assignment
expires or is terminated if all of the following apply:
(a) The process by which the governing board reaches the
determination shall be developed and agreed upon jointly by
representatives of the governing board and the academic senate, and
approved by the governing board. The agreed upon process shall
include reasonable procedures to ensure that the governing board relies
primarily upon the advice and judgment of the academic senate to
determine that the administrator possesses the minimum qualifications
for employment as a faculty member. The process shall further require
that the governing board provide the academic senate with an
opportunity to present its views to the governing board before the
board makes a determination and that the written record of the
decision, including the views of the academic senate, shall be available
for review pursuant to Section 87358.
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reduction in Schoessler' s salary. The letter also stated: "You will be confirmed by the Board
of Trustees in this position at the March 15, 2006 meeting of the board, should you wish to
accept the assignment." Schoessler declined the offer and chose to retire on the expiration of
his contract date of June 30, 2006. 	Schoessler alleges that the District's decision not to renew
his contract constituted retaliation because he initiated a report to the president of the District
that Alt unfairly disciplined one of Schoessler's employees.5 Schoessler filed this unfair
practice charge on December 28, 2006.
(b) Until a joint agreement is reached pursuant to subdivision (a), the
district process in existence on January 1, 1989, shall remain in effect.
( c) The administrator has completed at least two years of satisfactory
service, including any time previously served as a faculty member, in
the district.
(d) 	The termination of the administrative assignment is for any reason
other than dismissal for cause.
( e) This section shall apply to every educational administrator whose
first day of paid service in the district as a faculty member or an
administrator is on or after July 1, 1990. 	[Emphasis added.]
5Schoessler alleged that after he reported the disciplinary issue to the president, all his
interactions with Alt were met "with disdain and oppression." For example:
Mr. Schoessler went to Mr. Alt to deliver several job descriptions he
was working on. Mr. Alt angrily threw down the paperwork, accused
Mr. Schoessler of 'running wild over there' and said that he was going
to put an end to it.
Additionally, shortly thereafter, Schoessler received his first largely negative
performance review in 14 years. Alt also nitpicked Schoessler' s absence at a monthly
management meeting, when typically an absence was addressed through his immediate
supervisor, Rod Beil by. Alt informed Schoessler that if he was going to miss the monthly
meeting, Schoessler was to notify not only Alt, but the president's office, the vice president's
office, and his immediate supervisor.
4

BOARD AGENT'S DISMISSAL
The Board agent found the charge untimely because Schoessler was not terminated
from his employment with the District. The Board agent stated:
Termination of employment is defined as 'a complete severance
of the relationship of employer and employee.' 	(See Black's Law
Diet. (8 th ed. 2004).) Here, the employer-employee relationship
has not been severed as Mr. Schoessler was offered continued
employment with the District as a probationary teacher. 	While
Mr. Schoessler was offered a substantially smaller salary and lost
his prestige as a Director of Public Safety Programs, these facts
alone do not demonstrate a termination. Indeed, even in the
constructive discharge context, such a change in work conditions
would not be actionable. 	(Turner v. Anheuser-Busch, Inc. (1994)
7 Cal. 4 th 1238, 1247 ['a demotion, even when accompanied by
reduction in pay, does not by itself trigger a constructive
discharge'].)
In reaching this conclusion, the Board agent relied on Gavilan Joint Community College
District (1996) PERB Decision No. 1177 (Gavilan) noting that "[ t]he limitations period begins
to run once the charging party knows, or should have known, of the conduct underlying the
charge."
CHARGING PARTY'S APPEAL
Schoessler argues that the Board agent misapplied the statute of limitations:
Instead of beginning the running of the limitations period on June 30,
2006, the date that Mr. Schoessler was terminated from his
employment, the [Board agent] began the running of the limitations
period on February 28, 2006, the date that Mr. Schoessler was
informed by Dr. Alt that his employment contract would not be
renewed. Because of the District's offer of employment to
Mr. Schoessler as a first-year probationary faculty member, the
[Board agent] mischaracterized the employment action taken by the
District as not a complete severance of the employee-employer
relationship ... and more akin to a 'demotion rather than a
termination.'
Specifically, Schoessler argues that the Board agent should have applied Regents of the
University of California (2004) PERB Decision No. 1585-H (Regents), which held that the
5

effective date
of
termination triggers the statute
of
limitations as opposed to when he was
informed
of
his termination, rather than Gavilan.
OPPOSITION TO APPEAL
The District first argues that Schoessler does not have standing because he was a
"confidential" and/or "management" employee. Because the Board agent's dismissal letter did
not discuss standing or "raise this issue again", the District contends the dismissal letter
adopted all
of
the reasons set forth in the warning letter which found that Schoessler lacked
standing.
Next, the District argues that the unfair practice charge
is
untimely. 	Schoessler was not
terminated:
Rather, Mr. Schoessler's one-year contract was not renewed in
accordance with the provisions set forth in the contract itself and in
Education Code section 72411 (b ). Specifically, the District's Notice
of
Release from Administrative Contract, dated February 28, 2006,
set forth the reasons for non-renewal
of
the contract and offered
continued employment in a faculty position pursuant to Education
Code section 87458. At no time was Mr. Schoessler 'terminated,'
'laid off,' or otherwise denied District employment. 	[The Board
agent] correctly applied Gavilan
as
requiring the sixth-month time
limitation set forth in Government Code section 3541.S(a)
of
the
EERA to commence on February 28, 2006 (date
of
Notice). 	[Fns.
omitted.]
DISCUSSION
Schoessler argues that the Board agent misapplied the statute
of
limitations. Schoessler
alleges that the District terminated him from his employment and, as such, Regents should
apply. 	Applying Regents would make Schoessler's claim timely.6 In Regents, the Board held
Schoessler filed the unfair practice charge on December 28, 2006, he was given notice
on February 16, 2006, and his contract expired on June 30, 2006.
6

that an unfair practice charge for termination accrues on the date of dismissal.7 Our analysis,
therefore, turns to whether Schoessler's notice of nonrenewal of his administration contract
pursuant to Education Code section 72411 and "right to become a first-year probationary
faculty member once his or her administrative assignment" terminated is equivalent to a
termination under Regents. 	We find that it is not.
Schoessler was not terminated nor did the District ever sever the employer-employee
relationship. Rather, the District offered him a job which it was obligated to do under
Education Code section 87458. Had the District intended to "terminate" the employment
relationship as argued by Schoessler, the District: (1) could do so at any time; and (2) must
follow other statutorily proscribed procedures. (See Ed. Code, sec. 87660, et seq.) Thus,
Schoessler was not "terminated" and Regents is inapplicable. Therefore, pursuant to Empire
Union School District (2004) PERB Decision No. 1650, Schoessler's charge is untimely and
must be dismissed.8
7The Board relied on the California Supreme Court's decision in Romanov. Rockwell
International, Inc. (1996) 14 Cal.4 th 479 [59 Cal.Rptr.2d 20] which held that under the Fair
Employment and Housing Act (Sec. 12900, et seq.), a cause of action for wrongful termination
accrues on the actual date of termination, not on the date when the employee receives notice of
his termination.
8While the Board agent's warning letter states that Schoessler failed to demonstrate that
he had standing to file his charge, Schoessler cured that defect in his April 17, 2007 amended
charge. 	In his amended charge he alleges that he was a supervisory employee under EERA
section 3540.1 (b ), citing to his duties as director of Public Safety Programs and his lack of
discretion in making changes to policies or programs without the approval of his supervisors.
In evaluating whether a prima facie case has been established, the charging party's essential
allegations are deemed true. 	(San Juan Unified School District (1977) EERB Decision No. 12.
[Prior to 1978, PERB was known as the Ed. Employment Relations Bd. (EERB).])
7

ORDER
The unfair practice charge in Case No. SA-CE-2396-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Wesley and Rystrom joined in this Decision.
8