County of Contra Costa (PERB 2174M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KAREN BRUNO,
Charging Party,
V.
COUNTY OF CONTRA COSTA,
Respondent.
Case No. SF-CE-670-M
PERB Decision No. 2174-M
March 25, 2011
Appearances: Karen Bruno, on her own behalf; Christina J. Ro-Connolly, Deputy County
Counsel, for County of Contra Costa.
Before Dowdin Calvillo, Chair; McKeag and Miner, Members.
DECISION
MINER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Karen Bruno (Bruno) from a Board agent's partial dismissal of an
unfair practice charge. 	The charge alleged that the County of Contra Costa (County) violated
the Meyers-Milias-Brown Act (MMBA) 1 when it laid her off in retaliation for having engaged
in protected activity. The Board agent determined that the charge failed to state a prima facie
violation of the MMBA with respect to the allegation of retaliatory layoff and therefore
dismissed the charge in part. 2
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to be Government Code.
2 The Office of the General Counsel issued a complaint based upon additional
allegations that the County retaliated and discriminated against Bruno when it failed to rehire
her and failed to notify her of a vacant position following her layoff. These allegations are not
at issue in this appeal.

The Board has reviewed the partial dismissal and the record in light of Bruno's appeal,
the County's response, and the relevant law. Based on this review, the Board affirms the
partial dismissal of the charge for the reasons discussed below.
BACKGROUND3
Bruno was employed by the County as a part-time Public Health Nurse (PHN) at the
California Children's Services (CCS) Administration.4 Bruno's position was in a bargaining
unit that was exclusively represented by the Public Employees Union, Local 1 and covered by
a memorandum of understanding (MOU). 	Sometime after the 2006-2007 fiscal year, Bruno
became a union steward. Prior to becoming a union steward, Bruno received favorable
performance evaluations.
The charge alleges that, after taking on the role of union steward and filing several
grievances, Bruno began receiving negative feedback from her supervisor, CCS Nurse Program
Manager Elizabeth Faulkner (Faulkner). 	On August 28, 2008, Bruno filed a grievance alleging
that Faulkner had made false statements in a recent performance evaluation. On September 2,
2008, Bruno filed a second grievance against Faulkner alleging that she had engaged in
"harassment" in violation of the MOU. On September 23, 2008, Faulkner agreed to settle the
August 28, 2008 grievance by rewriting Bruno's performance evaluation and also rescinded a
counseling memo that was apparently the basis for the September 2, 2008 grievance.
On October 28, 2008, the County administrator recommended local departmental
budget cuts to the County Board of Supervisors.
Only those allegations relevant to the claim of retaliatory layoff are set forth herein.
4 While the record does not clearly reveal when Bruno was hired by the County, it
appears that she worked for approximately two years prior to her termination.
2

On October 29, 2008, Bruno received a memo from the County stating that there would
be workforce reductions in the coming months. Bruno was initially told by her union
representative that she should attend a meeting on November 26, 2008 regarding layoffs, but
was later informed that the meeting had been cancelled and there would be no PHNs laid off.
On November 4, 2008, the County hired two new full-time PHNs.
At some point prior to December 3, 2008, the County terminated an interdepartmental
contract that resulted in the elimination of three full-time and two part-time PHN positions.5
The charge alleges that the County then created three new permanent full-time PHN positions
by combining one or more existing vacant permanent part-time PHN positions and hired the
three full-time PHNs whose positions had been eliminated by the termination of the EHSD
contract into those positions. One of the displaced part-time EHSD nurses had more seniority
than Bruno and therefore "bumped" Bruno from her position. The other part-time nurse had
less seniority than Bruno but was able to return to a position in another class within the County
where she had worked previously for a long time.
On December 4, 2008, Bruno attended a meeting at which Health Services Division
Personnel Officer Shelley Pighin (Pighin) and Health Services Personnel Analyst
The charging documents refer to a contract between "EHSD" and the Department of
Public Health. According to the County, "On or about November 12, 2008, Joe Valentine,
Director of Employment and Human Services (hereinafter, "EHSD") notified Dr. William
Walker, Director of Health Services, that due to a serious budgetary situation, five Public
Health Nurses from the Health Services Department that supported EHSD's In-Home
Supportive Services, Adult Protective Services, and the Multipurpose Senior Services Program
had to be eliminated." In evaluating whether an unfair practice charge states a prima facie case,
PERB is not required to ignore facts provided by the respondent and consider only the facts
provided by the charging party. (Service Employees International Union #790 (Adza) (2004)
PERB Decision No. 1632-M.)
3

Teji O'Malley (O'Malley) were present.6 At that meeting, Bruno was informed that she would
be bumped by the more senior part-time PHN and that, because there were no vacant PHN
positions within the County, she would be laid off. Bruno requested to temporarily fill in for a
part-time PHN who was out on maternity leave, but O'Malley denied her request. 	O'Malley
also informed Bruno that the County would not create any new part-time positions and would
be eliminating upcoming vacant part-time positions in the future because they are more costly
than full-time positions, and that she could only be recalled to a part-time position.
The County laid Bruno
off
and terminated her employment on December 31, 2008.
The charge alleges that the layoff was authorized by Pighin, who signed the layoff notice.
Bruno was the only PHN who lost her job as a result
of
the layoffs. The full-time PHNs hired
on November 4, 2008 were not subject to layoff. Bruno asserts that the County avoided her
inquiries and failed to provide her with assistance in obtaining another position.
On December 5, 2008, O'Malley denied Bruno's request for a meet-and-confer
meeting.
DISCUSSION
New Allegations and Evidence
PERB Regulation 326357 governs PERB 's review
of
a Board agent's dismissal
of
an
unfair practice charge. 	Pursuant to Section 32635(a), the appeal must: "(1) State the specific
issues
of
procedure, fact, law or rationale to which the appeal is taken; (2) Identify the page or
part
of
the dismissal to which each appeal is taken; and (3) State the grounds for each issue
6 While the charge indicates that this was a meeting held for part-time PHNs, it does not
specify who else was present at the meeting.
7 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
4

stated." In addition, PERB Regulation 32635(b) prohibits a charging party from submitting
new allegations and new supporting evidence on appeal absent good cause.8 (See, e.g.,
Fremont Unified School District (2003) PERB Decision No. 1571; Lodi Unified School
District (2002) PERB Decision No. 1486; Peralta Community College District (2001) PERB
Decision No. 1418; Regents
of
the University
of
California (1998) PERB Decision
No. 1271-H.) The purpose
of
this regulation "is to require the charging party to present its
allegations and supporting evidence to the Board agent in the first instance, so that the Board
agent can fully investigate the charge prior to deciding whether to issue a complaint or dismiss
the case." (South San Francisco Unified School District (1990) PERB Decision No. 830.)
The appeal contains the following new allegations that were not raised before the Board
agent: 	(1) on December 10, 2008, Bruno requested to be considered for vacant full-time PHN
positions, but Faulkner denied her request; (2) the County failed to follow the layoff
procedures set forth in the MOU; and (3) Faulkner further retaliated against Bruno by
increasing her workload. In addition, the appeal includes several documents that were not
submitted to the Board agent, including communications she had with the County during
December 2008, and communications with Faulkner dated September 2008. Bruno has
provided no showing as to why these allegations and evidence could not have been submitted
previously to the Board agent. (State
of
California (Department
of
Forestry & Fire
Protection) (2004) PERB Decision No. 1619-S.) In the absence of such a showing, and
because the new allegations and evidence predate the dismissal letter and therefore were
known to Bruno, we do not find good cause to consider them. (Solano County Fair
8 PERB Regulation 32635(b) states: "(b) Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence."
5

Association (2009) PERB Decision No. 2035-M; Los Angeles County Office of Education
(2005) PERB Decision No. 1743.)
Grounds for Appeal
As indicated above, PERB Regulation 32635(a) requires the charging party to:
( 1) State the specific issues of procedure, fact, law or rationale to which the appeal is taken;
(2) Identify the page or part of the dismissal to which each appeal is taken; and (3) State the
grounds for each issue stated. The appeal asserts: "Please consider my appeal for layoff by
displacement as retaliatory due to my Union protected activities." It does not, however,
identify the specific issues to which the appeal is taken or the page or part of the Board agents
dismissal appealed, nor does it state the grounds for appeal. Therefore, the appeal fails to
comply with the requirements set forth in PERB Regulation 32635(a).
Moreover, the appeal fails to address the Board agent's conclusion that the charge
failed to state a prima facie case of retaliatory layoff because the charge failed to allege facts
demonstrating that the decision to lay Bruno off was motivated by her protected activity.
Instead, the appeal argues only that Faulkner failed to offer Bruno vacant positions both before
and after her layoff. Therefore, the Board need not consider her initial claim that the decision
to lay her off was made in retaliation for her protected activities. (!BEW Local 1245 (Neronha)
(2008) PERB Decision No. 1950-M; County of Solano (Human Resources Department) (2004)
PERB Decision No. 1598-M.) Nonetheless, even ifwe were to do so, we would affirm the
Board agent's partial dismissal for the reasons set forth below.
Retaliatory Layoff
MMBA section 3506 prohibits public agencies from discriminating or retaliating
against employees for having exercised their right to engage in protected activity. PERB
6

Regulation 32603(a) similarly makes it an unfair practice for a public agency to discriminate or
retaliate against an employee for having engaged in protected activity.
To demonstrate that an employer discriminated or retaliated against an employee in
violation of MMBA section 3506 and PERB Regulation 32603(a), the charging party must
show that: 	(1) the employee exercised rights guaranteed by the MMBA; (2) the employer had
knowledge of the employee's exercise of those rights; (3) the employer took 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 (Novato); County of
San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M.) In determining
whether evidence of adverse action is established, the Board uses an objective test and will not
rely upon the subjective reactions of the employee. (Palo Verde Unified School District (1988)
PERB Decision No. 689.) In a later decision, the Board further explained:
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
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; fn.
omitted.)
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 (North Sacramento)), 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
7

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 (City of
Torrance (2008) PERB Decision No. 1971-M; Coast Community College District (2003)
PERB Decision No. 1560); (5) the employer's failure to offer the employee justificationat the
time it took action or the offering of exaggerated, vague, or ambiguous reasons ( Oakland
Unified School District (2003) PERB Decision No. 1529); (6) employer animosity towards
union activists (Jurupa Community Services District (2007) PERB Decision No. 1920-M;
Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any other
facts that might demonstrate the employer's unlawful motive. (North Sacramento; Novato.)
Protected Activity
PERB has long held that the filing of a grievance is protected activity. (Trustees of the
California State University (2008) PERB Decision No. 1970-H; Los Angeles Unified School
District (2005) PERB Decision No. 1787.) The County does not dispute that Bruno engaged in
protected activity under the MMBA when she filed grievances against her supervisor,
Faulkner. 	Therefore, the first prong of the Novato test is satisfied.
Adverse Action
The elimination of a position and layoff of an employee holding that position is an
adverse action. (Klamath-Trinity Joint Unified School District (2005) PERB Decision
No. 1778.) 	Therefore, the third prong of the Novato test is satisfied.
8

Employer Knowledge and Nexus
As indicated above, to establish a prima facie case of discrimination, the charging party
must provide sufficient facts that, if proven at a hearing, would establish that the employer
took that adverse action because of the employee's protected activity. In this case, Bruno has
provided no direct evidence that the decision to eliminate her position and lay her off was
based upon her protected activity of filing grievances against her supervisor. Instead, she
asserted to the Board agent that a number of factors, when considered together, demonstrated
that the County's decision was part of a "strategically orchestrated" plan to terminate her
employment. These factors included: the termination of the interdepartmental contract
between EHSD and the public health department, thereby displacing three full-time and two
part-time PHNs; the County administrator's recommendation of local departmental budget cuts
to the County Board of Supervisors; the rescheduling of a meeting to discuss layoffs from
November 26, 2008 to December 4, 2008; the hiring of two more full-time PHNs; the
elimination of all the part-time PHN jobs; and the denial of Bruno's request to fill in
temporarily for a part-time PHN on maternity leave.
The charge failed to establish that the person or persons responsible for terminating the
EHSD contract and recommending budget cuts had any knowledge of Bruno's protected
activities in filing grievances against her supervisor or acting as a union steward. While it is
conceivable that Pighin and O'Malley, as employees in the personnel department, had
knowledge of Bruno's protected activities, the charge failed to allege facts demonstrating any
of the "nexus" factors identified above and therefore failed to alleged any facts that would
support a finding that the decision to hire two full-time PHNs, the elimination of all part-time
position, or the denial of Bruno's request to fill in temporarily for another employee were
9

motivated by Bruno's protected activity. 9 Accordingly, the charge fails to establish a prima
facie case that Bruno was laid off in retaliation for her protected activities.
10
CONCLUSION
Bruno has failed to establish a prima facie case
of
retaliatory layoff. Accordingly, the
charge is dismissed in part.
ORDER
The unfair practice charge in Case No. SF-CE-670-M is hereby DISMISSED IN PART
WITHOUT LEAVE TO AMEND.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.
As indicated above, the Board does not consider Bruno's assertion for the first time on
appeal that the County failed to follow the layoff procedures set forth in the MOU.
10 With regard to Bruno's claim that Faulkner failed to offer her vacant positions, the
charge fails to identify any vacant part-time PHN position that was available prior to her layoff
on December 31, 2008. A complaint has been issued with respect to her allegations that the
County failed to rehire her and failed to notify her about a vacant position after she was laid
off.