State of California (Correctional Health Care Services) (PERB 2760S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KEVIN M. HEALY,
Charging Party,
v.
STATE OF CALIFORNIA (CORRECTIONAL
HEALTH CARE SERVICES),
Respondent.
Case No. SF-CE-290-S
PERB Decision No. 2760-S
April 12, 2021
Appearances: Kevin M. Healy, on his own behalf; California Department of Human
Resources by Jennifer M. Pearson, Assistant Chief Counsel, and Marvin H. Stroud,
Labor Relations Counsel, for State of California (Correctional Health Care Services).
Non-Party Informational Briefs: Alvin Gittisriboongul, Chief Counsel, and Dorothy
Backsai Egel, Senior Attorney, for California State Personnel Board; Theresa C.
Witherspoon, Assistant Chief Counsel, for Service Employees International Union,
Local 1000; Weinberg, Roger & Rosenfeld by David Rosenfeld and Anne I. Yen,
Attorneys, for International Union of Operating Engineers Locals 3, 39, and 501, and
Union of American Physicians and Dentists; Messing Adam & Jasmine by Gary M.
Messing and Lina Balciunas Cockrell, Attorneys, for Cal Fire Local 2881; Suzanne L.
Jimenez, Managing Counsel, for California Correctional Peace Officers Association.
Before Banks, Chair; Shiners and Krantz, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by the State of California (California Correctional
Health Care Services) (CCHCS) and Kevin M. Healy to the attached proposed
decision of an administrative law judge (ALJ). The complaint in this matter alleged that

CCHCS violated the Ralph C. Dills Act (Dills Act)1 by refusing to promote Healy in
retaliation for his activities as a shop steward for Service Employees International
Union (SEIU) Local 1000. More specifically, the complaint alleged that CCHCS
discriminated or retaliated against Healy when it denied him promotion into the Health
Care Compliance Analyst (HCCA) position at California State Prison, San Quentin
(San Quentin).2
After an evidentiary hearing, the ALJ ruled in Healy’s favor. As part of the
proposed remedy, the ALJ ordered CCHCS to offer Healy the next available
SSA/AGPA position at San Quentin and to make Healy whole for the time in which he
was denied such a promotion. CCHCS excepted to the ALJ’s liability findings and
associated remedy. Healy filed limited cross-exceptions, asking the Board to adjust
one factual finding and one aspect of the remedy. The California State Personnel
Board (SPB) requested leave to submit an informational brief about the ALJ’s
proposed remedy. We granted the request and at the same time provided employee
organizations representing state employees the opportunity to submit informational
briefs about the remedy.
We have reviewed the proposed decision, the entire record, briefs submitted by
the parties and interested non-parties, and relevant legal authority. We conclude that
1 The Dills Act is codified at Government Code section 3512 et seq. All statutory
references are to the Government Code, unless otherwise specified.
2 CCHCS posted the vacant HCCA position as falling within the Associate
Governmental Program Analyst (AGPA) classification or, alternatively, the Staff
Services Analyst (SSA) classification. Healy claims that, but for unlawful
discrimination, he would have been the successful applicant and thereby become a
permanent AGPA.
2

the record supports the ALJ’s factual findings and that the proposed decision’s legal
conclusions are consistent with applicable law. Accordingly, we adopt the proposed
decision as the decision of the Board itself, subject to and as supplemented by the
following discussion. We adjust the ALJ’s remedial order to effectuate the Dills Act in a
more tailored manner.
BACKGROUND
Most relevant facts are set out in the attached proposed decision. We briefly
summarize and supplement these findings to provide context for our discussion of the
parties’ exceptions.3
CCHCS provides medical, dental, and mental health services to inmates at
institutions within the California Department of Corrections and Rehabilitation. At all
times relevant to this case, CCHCS employed Healy as an Office Technician (OT) at
San Quentin. In 2014 and 2016, Healy completed several out of class (OOC)
assignments in an AGPA position. Separately, he was paid as an SSA for four months
while he performed a special project. Positions in the SSA and AGPA classifications
receive higher pay than those in the OT classification. Healy has served as an SEIU
shop steward since at least 2016.
I. 	The Hiring Process for Civil Service Positions at San Quentin
Article VII of the California Constitution provides that permanent appointment
and promotion in the civil service “shall be made under a general system based on
merit ascertained by competitive examination.” (Id., art. VII, § 1, subd. (b).) The State
3 With only minor exceptions, neither party has excepted to the ALJ’s factual
findings. Nonetheless, after thoroughly reviewing the record, we have made several
factual findings that the ALJ did not make.
3

Civil Service Act implements the merit principle.4 (§§ 18500-19799.) The Civil Service
Act generally requires appointing powers to fill vacant positions “by appointment” and
generally requires appointments to “be made from employment lists.” (§§ 18524,
19050.) An “employment list” includes an “eligible list,” meaning “a list of persons who
have been examined in an open competitive examination and are eligible for
certification for a specific class.” (§§ 18532, 18537.) Eligible lists are “established as a
result of free competitive examinations open to persons who lawfully may be
appointed to any position within the class for which these examinations are held and
who meet the minimum qualifications requisite to the performance of the duties of that
position as prescribed by the specifications for the class or by [state personnel] board
rule.” (§ 18900, subd. (a).) The names of those who have attained passing marks in
the examination “shall be placed on the [eligible or promotional] list in the order of final
earned ratings.” (§ 18937.)
A hiring department must screen applications to determine which candidates
meet minimum qualification requirements and are eligible for appointment. After
determining which candidates to interview, the department must develop job-related
interview questions and scoring criteria, as well as determine who will serve on an
interview panel. After the interviews, the panel ranks the candidates. The Civil Service
Act’s “rule of three ranks” requires certification of a list to the appointing power with
the names of those eligible employees who place in the top three ranks of scores and
4 The merit principle embodies “the concept under which public employees are
recruited, selected, and advanced under conditions of political neutrality, equal
opportunity, and competition on the basis of merit and competence.” (Pacific Legal
Foundation v. Brown (1981) 29 Cal.3d 168, 184, fn. 7, internal quotations omitted
(Pacific Legal Foundation).)
4

who are willing to accept appointment under the conditions of employment specified.
(§ 19057.1; Cal. Code Regs., tit. 2, § 254.) The appointing power must select a
candidate from the three highest ranking candidates but need not select the one with
the highest score. (Cal. Code Regs., tit. 2, § 254.) The rule of three ranks is designed
to assure that one of the better candidates, if not the best, will be chosen. (Kidd v.
State of California (1998) 62 Cal.App.4th 386, 404 (Kidd).)
At all relevant times, Human Resources (HR) Analysts Janet Somosierra-
Francisco and Maria Moore oversaw the civil service process for hiring medical
personnel at San Quentin.5 Moore and Francisco reported to Staff Services Manager
Isaac Obando.
At San Quentin, an interview panel typically recommends the top three
candidates for reference checks, because one or more candidates could turn down the
position. The interview panel members perform the reference checks and after doing
so the panel then recommends to the hiring authority the panel’s top candidate. If the
top interview scores are close, the panel looks to recommend for hiring the candidate
who would be the best fit, which may not be the highest ranked candidate.
If one or two of the top candidates decline a position, the standard practice at
San Quentin has been to recommend for hiring the other candidate(s) in the top three.
Typically, the hiring authority follows the panel’s recommendation.6 Most importantly,
5 In accord with the proposed decision, we refer to Somosierra-Francisco as
“Francisco.”
6 While Obando noted that the hiring authority need not follow the panel’s
recommendation, this testimony focused more on the hiring authority’s general powers
than on the usual practice at San Quentin.
5

in this instance the HCCA hiring authority, San Quentin’s then-Chief Executive Officer
Stephen Harris, indicated he would have picked Healy if the panel had recommended
that he do so.
II. 	San Quentin’s HCCA Vacancy
The HCCA, also known as the Americans with Disabilities Act (ADA)
Coordinator, serves as an internal watchdog focusing on compliance with inmates’
disability rights. Among other duties, the HCCA conducts audits to determine whether
medical personnel are effectively communicating with their patients (EC audits). The
HCCA also provides patients with required durable medical equipment and
investigates patient complaints that their ADA needs are not being met. Carla
Thompson-McKinney supervised the HCCA position during the relevant period.7
San Quentin’s incumbent HCCA departed in early August 2017.8 CCHCS
posted both the permanent position and an OOC opportunity to perform the HCCA
work during the selection process for a permanent replacement. To fill an OOC
position, the hiring authority must select from qualified civil service candidates but may
appoint any eligible candidate without completing further steps in the civil service
hiring process, such as holding competitive interviews.
The job announcement for the permanent HCCA position listed it as falling
within the AGPA classification but indicated that appointment at the SSA level would
be considered in the alternative. Employees were eligible to apply if they were on the
7 In accord with the proposed decision, we refer to Thompson-McKinney as
“McKinney.”
8 All future dates refer to 2017, except where otherwise indicated.
6

SSA eligibility list or the AGPA eligibility list, provided they had at least 12 months’
experience in such classifications. Healy was on the AGPA eligibility list and had the
requisite 12 months experience. He applied for both the OOC and the permanent
HCCA position.
A. 	CCHCS Places Healy in the OOC HCCA Position Just
as His Shop Steward Duties Increase.
Harris offered Healy the OOC position after the other applicant declined. Harris
thought Healy would do a “fine job” in the position. Healy received an e-mail notifying
him of his selection and indicating that his OOC assignment would continue “for 120
days, or until the position has been filled.” Healy began serving as the HCCA on
August 8, working out of class in the AGPA classification.
Just as Healy began his new OOC HCCA role, Healy’s shop steward duties
required him to represent an employee, Nicole Smith, who was directly complaining
about McKinney, who was now Healy’s supervisor in the HCCA position. Smith
claimed that on July 31, McKinney came to Smith’s office to retrieve a file, and the
interaction turned physical, with McKinney doing a “chicken head, bob and weave,”
and almost “chest bump[ing]” Smith. Smith asserted that she tried to leave her own
office to escape the situation, and McKinney blocked her egress. This incident
occurred three days after Smith complained to San Quentin Chief Support Executive
Chad Hickerson regarding pressure McKinney exerted on her to breach operating
procedure.9
9 The issues in dispute in this case do not require us to determine whether
Smith’s allegations against McKinney were well founded. Rather, the import of these
allegations is that they drew Healy into representing Smith in a union complaint
7

Smith sought Healy’s help addressing McKinney’s alleged bullying. Healy wrote
an e-mail for Smith to send regarding McKinney’s allegedly hostile management style.
On August 9, Smith sent the e-mail to Harris and Hickerson, and she copied Healy.
The e-mail asked Hickerson his plans to deal with McKinney and stated that Smith
would escalate the matter to Harris “if we don’t have some solid progress with a
specific path forward on this by close of business on Monday,” August 14.10 As a
result of Smith’s complaint, Harris spoke with McKinney about the July 31 incident.
Healy also followed up with a further e-mail to Harris regarding additional union
complaints against McKinney.11
On August 14, several days into Healy’s OOC assignment, McKinney entered
Healy’s office, interrupting a conversation between Healy and Smith. McKinney
grabbed papers out of Healy’s hands and told him that he needed to stop performing
his union duties and focus solely on his HCCA duties, because that job was the only
one he should be worried about. Don Fox, the supervisor to whom Healy regularly
reported, overheard McKinney telling Healy that the OOC job was “serious,” and that
against McKinney, which we find was one motivating factor behind McKinney’s
retaliatory conduct.
10 Hickerson had previously spoken to McKinney about union complaints
against her, including one dating back to November 2016. In that instance, Hickerson
required McKinney to allow two employees time off to vote, requests which she had
earlier denied.
11 McKinney testified that she did not have “a problem with” Harris speaking to
her about the incident with Smith. However, we infer from the totality of the evidence it
is more likely than not that McKinney was upset there was another union complaint
against her, which had caused Harris to meet with her.
8

Healy would not have the time to do union work and the OOC work. Harris soon
learned from Smith that McKinney had grabbed papers out of Healy’s hands.
Shortly after McKinney left Healy’s work area, Healy e-mailed McKinney and
San Quentin Labor Relations Analyst Barbara Brown, notifying them that he would
need union leave time to represent a Pharmacy Technician in an internal affairs
investigation the next day. Healy also indicated that while he would be able to
complete both his union steward duties and his HCCA work, “this will require a degree
of trust and flexibility all the way around.” Healy wrote, in part:
“I am hoping that LRA Brown can echo how critically
important it is for our ongoing success at San Quentin for
Union Stewards to be able to do their jobs AND be Union
Stewards. Not only is it contractually required, but it makes
good working sense. The conta [sic] (i.e. to imply or say
that one can’t keep a job/promotion if he/she is a [sic]
working as a steward) is actually a Dills Act violation. The
bottom line is we can do both jobs and we should do both
jobs.”
(Emphasis in original.)
McKinney responded shortly thereafter:
“Thank you for the information. As stated in our previous
conversations, I do not have a problem with you conducting
your union steward duties. However, your duties as the
OOC ADA Analyst takes priority.”
McKinney and Brown spoke later that day. McKinney wanted to talk to Brown
“about how to deal with [Healy].” According to Brown, they discussed Healy’s “duties
as an SEIU job steward.” Meanwhile, Harris approved Healy’s request for union leave.
9

B. 	Shortly Before Healy Interviews for The Permanent
HCCA Position, McKinney States That Healy “Is Not
Getting the Job” Because “His Job is with the Union.”
On August 17, Francisco notified Healy that he would be interviewed for the
permanent HCCA position the next day. McKinney was a member of the hiring panel
constituted for this purpose. The other panel members were Obando, Chief Medical
Executive Dr. Elena Tootell, and Health Program Manager Tonia Woodson. Obando
and his staff had determined that Healy was eligible to be hired based on a list
developed after an open competitive exam. The panel interviewed four applicants,
including Healy, on August 18.
In the hours leading up to Healy’s August 18 interview, McKinney had a
conversation with Francisco. Francisco testified that McKinney said Healy “is not
getting the job. His job is with the Union. He doesn’t have the focus to be an ADA
Coordinator.” Francisco asked McKinney: “What if he is the best candidate for the
position?” McKinney responded, “if I have anything to do with it, that won’t happen.”
According to Francisco, McKinney did not want Healy in any position she supervised
because of his “Union affiliation and because [he was] missing deadlines.”
In her testimony, McKinney admitted telling Francisco, in advance of the
interview, that Healy would not get the job. McKinney testified that she did not recall
commenting on Healy’s union duties and instead meant that she would deny Healy the
job because he did not seem to be interested in or preparing himself for it.
10

To the extent McKinney’s testimony about the August 18 conversation
conflicted with Francisco’s testimony, we credit Francisco for the following reasons.12
First, two additional witnesses to the conversation confirmed that McKinney mentioned
Healy’s union-related role or duties. One witness, Moore, testified that McKinney was
picking up interview packets and Healy was brought up as one of the candidates
whom the panel would be interviewing that day. Moore testified on both direct and
cross-examination that McKinney said “there’s no way [Healy’s] going to get the job”
because of the work he was doing with SEIU. More particularly, Moore said that
McKinney expressed that the competing demands of his union stewardship would
result in time away from the HCCA work and cause him to lose focus on that work.
Smith, the other witness, confirmed that McKinney made it “absolutely astoundingly
clear” that Healy “would never get the job under [McKinney’s] watch” because of the
time Healy would presumably devote to his union duties.
Second, Francisco’s testimony is consistent with the position McKinney
expressed on August 14: that Healy would not have enough time to perform both his
union steward duties and his HCCA duties. Third, Francisco had no reason to lie
about what she heard. Indeed, that she testified against the interests of her employer
weighs in favor of crediting her testimony. (Alliance Environmental Science and
12 Finding that even the pre-interview statements to which McKinney admits
were sufficient to show unlawful motive, the ALJ did not resolve whether McKinney or
Francisco was more accurate in describing the conversation. While the ALJ was
correct that Healy would prevail in either instance, we nonetheless supplement the
ALJ’s findings based on the overall record, including but not limited to the testimony of
other percipient witnesses to the conversation, as well as the ALJ’s observation that
McKinney was evasive in her testimony, as discussed post.
11

Technology High School, et al. (2020) PERB Decision No. 2717, p. 22, fn. 15 (judicial
appeal pending).)
On the other hand, McKinney had every reason to say she could not recall her
statement tying Healy’s promotion prospects to his union activities.13 McKinney also
asserted that her memory from this period was not strong. And we join the ALJ in
noting that McKinney became evasive when pressed for examples of statements or
behavior upon which she based her belief that Healy was not interested in the job or
preparing himself for it. In fact, McKinney acknowledged Healy received some training
for the position, and that he was actively seeking additional training during the brief
period between the start of his OOC assignment and the August 18 interview. These
facts directly conflict with McKinney’s assertions that Healy seemed disinterested in,
or was not preparing himself for, the job.14
The weight of the evidence supports finding that McKinney said Healy would
not get the HCCA position because of his union activities. But even had McKinney
mentioned only Healy’s allegedly missed deadlines as the basis for her pre-interview
statement that Healy would not get the permanent job, the record supports the ALJ’s
finding that McKinney’s insistence that Healy missed a deadline during his short OOC
13 The witness’s “bias, interest or motive” is relevant in determining the
credibility of testimony. (State of California (Department of Corrections and
Rehabilitation) (2012) PERB Decision No. 2285-S, p. 10, fn. 15, citing Evid. Code,
§ 780.)
14 The “existence or nonexistence of facts testified to” also is a relevant factor in
determining the credibility of witness testimony. (State of California (Department of
Corrections and Rehabilitation), supra, PERB Decision No. 2285-S, p. 10, fn. 15, citing
Evid. Code, § 780.)
12

assignment was pretextual. The afternoon of August 14, following their back-and-forth
that morning about Healy’s union activities, McKinney sent Healy an e-mail message
inquiring whether he had begun the August EC audit. These audits are due by the fifth
of each month, but the August audit had not been completed before Healy assumed
the OOC assignment on August 8. Healy responded that he would need additional
time to complete the audit as his training had been insufficient to perform the task.
Healy also reassured McKinney that the deadline had been extended: “We are not
behind on the deadlines; this was confirmed with HQ yesterday.” McKinney
acknowledged in her testimony that when Healy assumed the OOC HCCA
assignment, his predecessor had failed to complete the August audit by the initial
August 5 deadline. McKinney could not recall if she had ever informed Healy that the
August audit still needed to be performed. Nor could she recall if the August 5
deadline had been extended. In any event, she admitted that she later told Tootell that
Healy “missed a deadline” in August.15 This story was unwarranted and a pretext for
denying Healy the HCCA position.
The record does not reflect whether Obando or Woodson ever heard the false
story about Healy missing a deadline during his OOC assignment. However, the
nature of the interview panel consultation process, combined with McKinney’s
admitted agenda to deny Healy the position and the fact that she shared the story with
Tootell, suggests it is more likely than not that McKinney or Tootell shared at least the
gist of the allegation when the panel discussed Healy.
15 In her testimony, McKinney could not recall what deadline Healy purportedly
missed, but she did recall reporting a missed deadline to Tootell.
13

Prior to the panel convening on August 18, McKinney had also informed Tootell
that she would have a difficult time supervising Healy. This statement from McKinney
to Tootell, together with McKinney’s false allegation that Healy missed a deadline,
contributed to bias that Tootell harbored against Healy from the moment he began
working in the OOC position. Indeed, several days after Healy began in the OOC
position, Tootell e-mailed Harris she was “resigning” because he had placed Healy in
the temporary position. In response, Harris falsely told Tootell that Healy did not meet
the minimum qualifications for the permanent position, decided to bring Healy’s OOC
assignment to a premature close, and appointed both Tootell and McKinney—neither
of whom was neutral regarding Healy—to the hiring panel. Based on these
concessions from Harris, Tootell rescinded her resignation, which, in context, appears
to have been much closer to a threat than a completed act. Also as part of this
combination of decisions, CCHCS expedited the interview process by scheduling the
interviews for August 18, which was the following week.
Tootell testified that she entered the interview process without having made up
her mind about Healy, and she opined it would have been improper if McKinney had
pre-determined that Healy could not be selected. However, Tootell’s resignation threat
and associated e-mail comments to Harris the week prior to the interviews showed
that her testimony on this point was not truthful, as she had an extremely strong
position prior to the interview. Indeed, she expressed her opposition to Healy in no
uncertain terms in an e-mail to Harris: “promoting Mr. Healy into the position (whether
permanent or OOC) would be unacceptable.”
14

Tootell also testified that Healy was not a good worker based on Healy
allegedly missing a deadline while helping Tootell with a July 2017 project involving
ophthalmology patients. Before describing that claim, we note that in evaluating
Healy’s work ethic and work product, the most reliable evaluator was Fox, who
supervised Healy and thus relied on extensive personal knowledge in rating Healy’s
work very highly. We accord more weight to Fox’s assessments than to those of
McKinney and Tootell because of their biases, the fact that several critical parts of
their testimony did not hold up when compared to other facts, and the fact that Fox
had far more opportunities to observe Healy’s work performance.
During the July 2017 ophthalmology project, Tootell asked Healy to review
patient charts and identify specified documents for submission to a third-party
insurance billing group. Although Tootell e-mailed Healy on July 26 to check on his
progress, she did not at any time provide Healy with a deadline for completing the
project, making it highly misleading for her to join McKinney in claiming that Healy
missed deadlines. Moreover, upon receiving the documents, Tootell told Healy that
although he had produced records she did not need or ask for, he had been “very
thorough,” and he had made her life a lot easier. Tootell never told Fox that Healy had
performed poorly. Rather, she told Fox that Healy provided more information than
asked for, which Fox interpreted as a positive comment. Ultimately, the record
contains various characterizations of Healy’s performance on the project. Drawing
reasonable inferences from the overall weight of the evidence, and crediting Fox’s
assertions that Healy was hard working, diligent, and focused, and that the project
15

was more difficult than a typical OT assignment, the weight of the evidence does not
reflect poorly on Healy’s performance on this brief project.
Tootell also espoused a decidedly jaded perspective on SEIU’s role in the
workplace, and she did so in a manner that raised further questions regarding her
contention that his work on that brief project was a strike against him in the HCCA
hiring process. Specifically, Tootell testified about an August 30 conversation she had
with Jaime Molina, a clinic nurse and SEIU’s president. In recounting her conversation
with Molina, Tootell testified that she viewed Healy as one of several employees who
had been improperly using SEIU to complain about McKinney and thereby deflect
attention away from their own poor performance. Tootell mentioned Healy’s work on
the ophthalmology project as an example of employees allegedly using SEIU to avoid
accountability, even though there was no union involvement in any aspect of that brief
project.
C. 	The Panelists Rank Healy Third, and He Continues
His Protected Activity.
At the conclusion of the August 18 interviews, the panelists scored each
applicant’s answers, and these scores determined the applicants’ relative rankings.
The top-ranked applicant scored 88%, while the second candidate scored 65%. Healy
scored 60% and was ranked third.16 Following the interview, each panelist rated Healy
as a “competitive” candidate, indicating that he demonstrated the level of knowledge
and understanding required by the position.
16 Obando and Woodson each acknowledged that Healy’s total interview score
contained minor mathematical errors. Correcting for these errors, Healy scored 60%,
rather than 59%, on the interview.
16

The panelists determined that the top three scoring applicants, including Healy,
scored high enough in the interview to move to the next phase of the process, the
reference check. This unanimous determination is also reflected on the interview
ranking sheet, which shows the top three scoring applicants as “recommended.”
As discussed further post, on August 25, Francisco notified Healy that his OOC
assignment would end that day. On August 28, once McKinney was no longer his
supervisor, Healy and other union stewards wrote Harris to protest actions taken by
McKinney in her role as a manager. The “letter of no confidence” sought removal of
McKinney from her management position, which was still probationary at the time, and
threatened “vigorous” actions to protect bargaining unit employees from her. Harris
shared the August 28 “letter of no confidence” with Tootell a day or two later.
In an August 29 e-mail, Healy alerted Obando to McKinney’s pre-interview
statements that Healy would not get the position. Although the e-mail is not in
evidence, Obando testified that Healy’s e-mail was his first notice of McKinney’s pre-
interview statements. Obando responded that Healy should take the matter up with
the merit board, but he performed no independent investigation nor followed up in any
other way.
Healy also wrote to Tootell on September 2, complaining about McKinney’s
supervision of him during his OOC assignment and rebutting McKinney’s claims that
he had missed deadlines during that brief period.
17

D. 	The Other Two Top Candidates Drop Out, but the Panel
Does Not Check Healy’s References or Recommend Him to
Harris.
Meanwhile, Tootell checked the first-ranked candidate’s references and based
on the panel’s recommendation, Harris offered the position to that candidate. The first-
ranked candidate accepted the offer on August 28 but rescinded her acceptance on or
about September 11. Francisco suggested that Tootell check the references of an
alternate candidate, and Tootell requested the references for the second-ranked
candidate. That candidate did not fill the position either, though the record does not
explain why.
After the first two candidates did not work out, Healy was the highest remaining
candidate, and under San Quentin’s usual practice the panel would normally have
moved on to him. Indeed, while we find it more likely than not that pretextual
arguments about Healy and/or other forms of discrimination for his protected activity
caused him to receive lower interview scores from one or more panelists, even the
scores he did receive were close to the second-ranked candidate, and all four
panelists rated him as competitive and recommended. Yet no one ever started a
reference check for Healy, and CCHCS instead started the recruitment process
anew.17
17 When asked to explain why nobody checked Healy’s references, Tootell
claimed that the panel decided it would only hire the first two candidates. But Tootell
could not say when the panel made this alleged decision, positing that it was either
after the interviews or after the first-ranked candidate declined the offer. In any event,
no other panel member supported Tootell’s testimony that the panel decided not to
check Healy’s references. Moreover, such a decision would conflict with the panel’s
unanimous agreement that Healy passed the oral interview and that his application
should proceed to the next step of the process. We thus do not credit Tootell’s
18

Francisco notified Healy by letter dated September 29 that he had not been
selected for the permanent HCCA position and that another applicant had been
selected. In fact, however, CCHCS took no further steps to fill the position before
reposting it in November.18
Harris testified that he did not offer the permanent position to Healy simply
because the hiring panel did not tender his name to Harris for appointment. Harris
affirmatively asserted that he would have had “no problem” with Healy serving in the
permanent position.
In March 2018, Healy asked Obando about the status of his August 29
complaint regarding McKinney’s pre-interview statements. Francisco and Moore
similarly raised concerns about McKinney’s pre-interview statements with Obando and
Obando’s supervisor. Both Francisco and Moore believed that McKinney should have
recused herself from the interview panel because she had already made statements
that one of the applicants was not going to get the job. Obando agreed and indicated
that, had he known about McKinney’s statements prior to the interview, he would have
excluded her from the panel.
Although Obando found out about McKinney having prejudged the matter while
the position was still open and there was time to attempt to rectify the unfairness,
Obando took no steps to hire Healy, or even to reinterview Healy or check his
references. Instead of taking one of these actions, CCHCS filled the position effective
testimony as to how or why CCHCS decided to abandon the reference check process
and instead repost the position.
18 Healy, having been passed over the first time, did not re-apply.
19

May 1, 2018, at which point no one had filled the HCCA position for nearly nine
months.
Meanwhile, on April 30, 2018, the California Department of Human Resources
filed a four-page position statement responding on behalf of CCHCS to the instant
unfair practice charge. In that position statement, CCHCS provided only the following
reason for having decided to reject Healy: “While charging party was denied the
permanent position as ADA Coordinator, that denial stemmed from charging party’s
unsatisfactory performance in the approved OOC assignment for the position,
including missing deadlines on work projects, and not due to any protected activity.”
DISCUSSION
Although the Board reviews exceptions to a proposed decision de novo, to the
extent that a proposed decision adequately addresses issues raised by certain
exceptions, the Board need not further analyze those exceptions. (City of San Ramon
(2018) PERB Decision No. 2571-M, p. 5.) The Board also need not address alleged
errors that would not impact the outcome. (Ibid.) To the extent an ALJ assesses
credibility based upon observing a witness in the act of testifying, we defer to such
assessments unless the record warrants overturning them. (Los Angeles Unified
School District (2014) PERB Decision No. 2390, p. 12.)
To establish a prima facie case of retaliation, the charging party has the burden
to prove, by a preponderance of the evidence, that: (1) one or more employees
engaged in activity protected by a labor relations statute that PERB enforces; (2) the
respondent had knowledge of such protected activity; (3) the respondent took adverse
action against one or more of the employees; and (4) the respondent took the adverse
20

action “because of” the protected activity, which PERB interprets to mean that the
protected activity was a substantial or motivating cause of the adverse action. (City
and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If the
charging party meets its burden to establish each of these factors, certain fact patterns
nonetheless allow a respondent the opportunity to prove, by a preponderance of the
evidence, that it would have taken the exact same action even absent protected
activity. (Ibid.) This affirmative defense is most typically available when, even though
the charging party has established that protected activity was a substantial or
motivating cause of the adverse action, the evidence also reveals a non-discriminatory
motivation for the same decision. (Id. at pp. 15-16.) In such “mixed motive” or “dual
motive” cases, the question becomes whether the adverse action would not have
occurred “but for” the protected activity. (Id. at p. 16.)
In this case, no dispute remains regarding the first three elements of Healy’s
prima facie case, as CCHCS did not file exceptions to the ALJ’s findings that Healy
engaged in protected activity, the hiring authority and at least several of the interview
panelists knew of that activity, and CCHCS took adverse action against Healy when it
refused to promote him into the permanent HCCA position. As discussed below,
CCHCS also does not explicitly challenge the fourth element (commonly referred to as
the “nexus” factor). The primary liability issue before us relates to CCHCS’s affirmative
defense, though that issue naturally overlaps with the fourth element of Healy’s prima
facie case. We have independently reviewed the record and find that it adequately
supports the proposed decision. We supplement the ALJ’s analysis to address
21

CCHCS’s five exceptions and to adjust the remedial order to effectuate the Dills Act in
a more tailored manner.
I. 	CCHCS’s Exception Regarding an Alleged Adverse Inference
CCHCS contends that the ALJ improperly drew an adverse inference against it
for having provided only interview scores for the candidates, while redacting and
refusing to provide the panel’s written comments. CCHCS further argues that any such
adverse inference would be improper because CCHCS acted pursuant to a protective
order that the ALJ approved.19
We find no evidence that the ALJ drew an adverse inference against CCHCS.
CCHCS’s exception references the portion of the proposed decision analyzing
CCHCS’s claim that it had a non-discriminatory reason for not hiring Healy, and that it
acted based on that non-discriminatory reason. This portion of the decision—which
does not mention the protective order—merely noted that the redacted score sheets
do not provide evidence of the panelists’ rationales for either Healy’s or the other
applicants’ assigned scores, and therefore shed little light on the non-discriminatory
factors CCHCS sought to establish. Like the ALJ, we consider below all the various
rationales CCHCS put forward for its decision, but we do not draw any inference from
the fact that CCHCS sought to maintain confidentiality of certain materials and to
provide evidence in a different manner, mainly through witness testimony from
interview panel members.
19 Neither party excepted to this protective order, so we do not consider its
propriety.
22

II. 	CCHCS’s Exception Regarding the OOC Assignment
CCHCS excepts to the ALJ’s finding that Healy’s union duties motivated Harris
to end the OOC HCCA assignment prematurely.20 The record amply supports this
finding.
When CCHCS uses an OOC assignment while filling a vacancy, the OOC
assignment typically lasts until the permanent position is filled—as management
indicated it planned to do here—unless the temporary employee is not performing
satisfactorily. Yet, Healy was not informed that his performance was problematic, and
indeed, Hickerson reported to Harris that Healy was meeting the expectations of an
OOC serving in the position. Nor does the record as a whole contradict Hickerson’s
assessment by suggesting that Healy failed to perform well in the OOC position.
On August 14, Harris approved Healy’s union leave request to represent a
Pharmacy Technician in an internal affairs investigation. Harris then informed San
Quentin’s HR staff that he was ending Healy’s OOC assignment immediately. Harris
testified that when he learned Healy would need to take some union leave time, he
was concerned that Healy’s representational duties would interfere with his completion
of the OOC HCCA duties. Obando convinced Harris to “hold off a bit longer,” but
Harris subsequently ended Healy’s OOC assignment just days later, on August 25. At
that point, Healy had served for just over two weeks in the OOC position, an
assignment scheduled to last for 120 days or until the permanent position was filled.
Harris provided Healy with no reason for ending the assignment.
20 The premature cessation of Healy’s OOC assignment is not alleged as an
independent adverse action but is nonetheless relevant as evidence of unlawful intent.
23

Harris’s concern that he did not share with Healy—that Healy’s representational
duties would interfere with performing the HCCA duties—is an unlawful rationale;
indeed, CCHCS cannot and does not dispute that the Dills Act protects Healy’s work
as a union steward. Moreover, the record does not reflect that Healy neglected his
OOC duties, and Harris reported in an internal management e-mail that Hickerson
found Healy was meeting expectations in that position. Harris’s alleged concern that
Healy might neglect his duties is further undercut by the fact that CCHCS was able to
operate with the position completely vacant from late August 2017 to early May 2018.
In its exception, CCHCS argues that “far from retaliating against Healy for union
duties, Harris was actually trying to assist Healy in performing the union duties, as
demonstrated by the ALJ’s finding that ‘[o]n August 14 and 15, 2017, Healy took union
leave time to represent a Pharmacy Technician at an [internal affairs] investigation.’” It
would not aid CCHCS to establish that Harris wanted Healy to assist the Pharmacy
Technician and moved to end Healy’s OOC HCCA assignment because he felt it was
incompatible with Healy’s union duties. Harris’s purported position—that he had no
problem with Healy performing union duties, provided his assignment was not the
HCCA position—reflects unlawful animus toward Healy’s protected activity as a union
steward. Indeed, forcing an employee to give up a temporary promotive position—and
thereby lessen his chances to fill the position permanently—demonstrates an
inclination to levy a heavy price on those exercising protected rights. (Cf. State of
California (California Correctional Health Care Services) (2019) PERB Decision
No. 2637-S, pp. 15-16 [resistance to requests for union-related leave evidence of
CCHCS’s animus].)
24

While Harris was temporarily dissuaded from ending Healy’s OOC assignment
and therefore briefly delayed doing so, CCHCS does not except to the finding that
Harris’ decision to end Healy’s OOC assignment on August 25 evidenced intent to
discriminate. And even if CCHCS properly excepted to that finding, we agree with the
ALJ’s conclusion, as we infer that Harris’ reason for wanting to cut short the OOC
position on August 14 remained the same when he eventually did so on August 25.21
The record also does not support a conclusion that Harris ended the OOC on
August 25 simply because he thought a candidate would likely fill the position soon.
Such an argument is inconsistent with both Harris’ admitted concern about union
activity and the original plan, stated in writing, to have Healy continue in the OOC “for
120 days, or until the position has been filled.” It is also inconsistent with the decision
not to reinstate Healy to the OOC for any of the nine months prior to May 1, 2018,
when the position was filled. Prematurely removing Healy from the OOC HCCA
position assignment and leaving the position vacant for nine months runs counter to
established practice and thus serves as substantial evidence of unlawful motive.
21 According to Francisco, even though Harris briefly backed off terminating
Healy’s assignment between August 14 and August 25, Harris indicated that he
wanted the OOC assignment to be ended as soon as possible, and to that end he
directed Francisco to schedule interviews for the permanent position immediately. The
interviews were held by the end of that same week, August 18. As soon as the panel
asked Harris to appoint the first-ranked candidate, Harris terminated Healy’s OOC
assignment, without waiting to see whether the permanent position was filled or when
it would be filled. Even though the selected candidate declined the permanent
position, and the position remained unfilled for nine months, the OOC position was not
reinstated and instead McKinney performed the job duties in the interim.
25

Moreover, as discussed ante, such a conclusion ignores that Tootell, after
conferring with McKinney, heavily pressured Harris to keep Healy out of the OOC and
permanent HCCA positions, even resigning, or threatening to resign, if he did not do
so. Responding to that pressure, Harris appointed McKinney and Tootell to the
interview panel for the permanent position, directed that the panel should conduct
interviews the next week, and ended Healy’s OOC assignment. Whether Harris was
more motivated by Healy’s continuing commitment to his union steward role or
McKinney’s and Tootell’s bias-tainted aversion to having Healy fill the HCCA position
temporarily and/or permanently, in either instance Healy’s premature removal from the
OOC assignment supports the ALJ’s finding of nexus between Healy’s protected
activities and CCHCS’s failure to offer Healy the permanent position.
III. 	CCHCS’s Exception Regarding its Affirmative Defense
CCHCS does not explicitly except to the ALJ’s findings that “the panel’s
decision[-]making process was tainted by the unlawful animus of a few of its
members” (Proposed Decision, p. 48), nor that its “treatment of [Healy] as an applicant
for promotion evidences a desire to seek out and, if necessary, manufacture reasons
to reject Healy’s application for promotion, rather than to consider his application on
the basis of merit alone.” (Proposed Decision, p. 44). Even construing the exceptions
broadly to cover these issues, the record fully supports the ALJ’s finding that the
promotion process was suffused with discrimination.
As discussed above, because Healy has established that unlawful animus
substantially motivated his employer’s decision not to promote him, the burden shifts
to CCHCS to establish that it would have refused to promote Healy even if he had not
26

engaged in protected activity. (City and County of San Francisco, supra, PERB
Decision No. 2712-M, p. 27; San Diego Unified School District (2019) PERB Decision
No. 2634, pp. 15-16.) This determination can involve weighing the evidence
supporting the employer’s justification against the evidence of the employer’s unlawful
motive to determine what would more likely than not have occurred in the absence of
protected activity. (San Diego Unified School District (2019) PERB Decision No. 2666,
p. 7.) In doing so, we keep in mind that even when an employer has a managerial,
statutory, or contractual right to take an employment action, its decision to act cannot
be based on an unlawful motive, intent, or purpose. (City of San Diego (2020) PERB
Decision No. 2747-M, p. 29; County of Santa Clara (2019) PERB Decision
No. 2629-M, p. 13; County of Lassen (2018) PERB Decision No. 2612-M, p. 6;
Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5.)
Over time, CCHCS has shifted its rationale for rejecting Healy. CCHCS’s initial
position statement to PERB stated that it rejected Healy because of his work in the
OOC role, including missing deadlines. As discussed above, even though Hickerson
found Healy was meeting expectations in the OOC position, McKinney falsely accused
Healy of missing a single deadline as part of her stated plan to deny Healy the position
because she felt his true job was with SEIU and he could not both be a steward and
be the HCCA, as well as based on her likely covert hostility over Healy and SEIU
representing employees who had complaints against her. As part of our further
analysis, post, we explain that McKinney’s initial allegation that Healy missed a single
deadline in his brief OOC assignment soon morphed into a broader false allegation
that he missed multiple deadlines during that assignment.
27

At the hearing, Obando gave an equally unsupportable explanation, which was
that the disparity between the top ranked candidate’s score and the second and third
ranked candidates’ scores justified re-posting the job announcement once the top-
ranked candidate declined the position. The ALJ was correct to reject this explanation,
as it does not comport with what happened. The panel readily moved on from the first-
ranked candidate to the second-ranked candidate, halting its usual progression only
after the second-ranked candidate did not work out.
CCHCS now argues that the prime factors that disqualified Healy for the
position were his temperament, performance during the interview, work ethic, and
work product. While the ALJ adequately addressed these issues, we supplement the
ALJ’s analysis as follows.
To begin, the ALJ found the record only showed Healy being argumentative, or
having conflicts with others, while performing union duties; the ALJ found no
substance to allegations of Healy creating workplace conflicts that did not implicate his
union duties. Stewards, in fulfilling a union’s statutory duty to represent all bargaining
unit employees, are often called on “to resolve divergent and often conflicting
interests,” and in that role “may resort occasionally during representational meetings
to intemperate speech or less than civil conduct.” (State of California (Department of
Corrections & Rehabilitation) (2012) PERB Decision No. 2282-S, p. 7.) Because
stewards’ representational duties often bring them into conflict with management,
precedent affords them “significant latitude in their representational speech and
conduct.” (Ibid.; see also Mount San Jacinto Community College District (2018) PERB
Decision No. 2605, p. 7 [individual employee’s criticism of management or working
28

conditions is protected activity when its purpose is to advance other employees’
interests or when it is a logical extension of group activity].)
CCHCS does not identify specific facts the ALJ overlooked tending to show
workplace conflicts unrelated to Healy’s union duties. Rather, CCHCS repeats vague
and unsubstantiated claims Tootell e-mailed to Harris: that Healy had a recent conflict
with “someone in medical records” and “multiple conflicts with other staff.” CCHCS did
not provide sufficient evidentiary support for these claims. Indeed, while Tootell’s
e-mail referenced “three thick binders of material on the many associated issues
surrounding Mr. Healy,” CCHCS did not seek to introduce such evidence at the formal
hearing.22 (See Proposed Decision, p. 39, fn. 50.)
Tootell’s opinion about Healy’s temperament was likely based at least in part on
conflicts arising from the inherently conflictual job of representing employees in
complaints against management. Indeed, CCHCS does not dispute the ALJ’s finding
that Tootell, like McKinney, Harris, and other decision-makers, was aware of Healy’s
frequent and public representational activities on behalf of himself and others. From
the record, it appears that Healy’s union affiliation and activities were so open and
notorious that they almost became synonymous with him.
Moreover, as detailed ante, Tootell made pretextual allegations that Healy
missed deadlines during the ophthalmology project and again during his OOC
22 CCHCS thus puts forward a contention that lacks foundation and relies on
hearsay. While the technical rules of evidence do not apply in a PERB formal hearing,
hearsay cannot form the sole basis for a material factual finding. (County of Santa
Clara (2019) PERB Decision No. 2670-M, p. 21, fn. 23 [a factual finding cannot be
based solely on uncorroborated hearsay that does not satisfy one of the statutory
exceptions].)
29

assignment. Indeed, while we found above that McKinney spread the false allegation
that Healy missed a single deadline during his OOC assignment, this falsehood only
grew from there. Tootell expanded on it when she told Molina that Healy had missed
“many deadlines” during his brief OOC assignment and that CCHCS would therefore
be in trouble. After Molina told Healy that Tootell had said this, Healy e-mailed Tootell
and rebutted the allegation that he had missed deadlines during that time.
Nonetheless, the expanded falsehood did not fade away. In CCHCS’s initial position
statement to PERB, it stated under penalty of perjury that it denied Healy the
promotion because of his work during the OOC assignment, including missing
“deadlines.”
Thus, viewed as a whole, the record contains sufficient direct and circumstantial
evidence that McKinney’s and Tootell’s references to Healy’s alleged poor work
performance were pretextual.
As for Healy’s interview, the panelists testified regarding ways in which Healy
could have improved his interview answers. We agree with the ALJ that, without
information about the actual questions asked and Healy’s answers (much less
information about other applicants’ answers for comparison), these generalized
critiques were not particularly probative.
Tootell was the panelist whose testimony was most critical of Healy’s interview,
as she accused him of dishonesty. But when asked for specific dishonest answers to
questions, Tootell stuck with a very general explanation that did not involve any
dishonesty. Rather, she asserted that whereas Healy “kept dropping names of both
Harris and [Tootell] and other people about what work [he] had done,” she knew his
30

work and had also “heard from multiple other people” about his work product, so when
he “drop[ped] those names,” it reminded her of “a lot of consternation on the part of
[his] supervisors.” This non-specific and hearsay-laden summary, apparently
referencing unspecified facts that CCHCS did not attempt to introduce into the record,
did not establish a dishonesty allegation and has limited persuasive value. (See Palo
Verde Unified School District (2013) PERB Decision No. 2337, p. 22 [uncorroborated
hearsay testimony about complaints of employee’s alleged inappropriate workplace
behavior was insufficient to establish employer’s affirmative defense].) Tootell then
claimed that she believed others also questioned Healy’s honesty. But when asked
the basis for that belief, Tootell admitted she had not heard others say he was
dishonest. Other critiques were even more vague.23
Moreover, even though Healy more likely than not experienced one or more
depressed interview scores as a result of misinformation about his having missed
deadlines, his scores still approached those of the second-ranked candidate and
therefore undercut the claim that he performed poorly at the interview.
Notwithstanding the criticism, all panelists rated Healy “competitive” and all panelists
recommended that he move to the next stage.
Beyond the above factors, other circumstantial evidence confirms the direct
evidence of anti-union animus and prevents CCHCS from meeting its burden to show
23 McKinney’s testimony, echoed by Woodson, was that Healy’s answers were
“good” but “very long” and yet “not specific enough to the questions.” Tootell called
Healy’s answers “verbose,” and added her impression that Healy “complete[ly]
misunderstood the questions and also misunderstood all of the impression of his work
previously done.”
31

that it would have rejected Healy for the HCCA position even absent his protected
activity. For instance, when CCHCS notified Healy that he had not been chosen, it
represented that another applicant had been chosen and did not tell him the position
would be reposted. This false representation adds to the irregularities that support the
direct evidence of discrimination.24 Similarly, as discussed above, Tootell heightened
the suspicious circumstances when she, alone among the four panelists, claimed that
the entire panel jointly decided not to check Healy’s references. Thus, even setting
aside the likelihood that one or more panelists were unable to fairly score Healy, we
agree with the ALJ’s finding that animus nonetheless infected the decision not to move
forward with Healy’s candidacy after the first two candidates did not work out, and
CCHCS did not meet its burden to show that it would have rejected Healy in the
absence of his protected union activities.
The substantial direct and circumstantial evidence of discrimination and the
employer’s shifting, pretextual rationales for rejecting Healy distinguish this case from
those in which employers have established an affirmative defense. For instance, in
City of Alhambra (2011) PERB Decision No. 2161-M, the Board found credible
evidence to support the employer’s position that it would have rejected an employee
on probation for reasons other than the employee’s complaint at a work meeting that
he was being worked too hard, and that it acted because of those non-discriminatory
reasons. (Id. at pp. 19-20.)
24 In yet another irregularity, on August 12 Harris e-mailed Tootell and falsely
stated that Healy did not meet the minimum qualifications for the permanent HCCA
position. This misstatement further supplements the considerable evidence showing
animus against Healy, as the record reflects no dispute that Healy was on the AGPA
eligibility list and met the minimum qualifications for the HCCA position.
32

This case is also wholly dissimilar from State of California (Department of
General Services) (1994) PERB Decision No. 1063-S. There, the Board affirmed the
ALJ’s finding that there was no evidence the employer’s decision to deny a lateral
transfer was based on the applicant’s protected activities. (Id., adopting proposed
decision at pp. 27-28.) Even had charging party proved a nexus between the
applicant’s protected activity and the adverse action, the employer demonstrated that
it would have taken the same action despite the applicant’s protected activity because
the successful applicant better met the employer’s stated needs, as he had more
technical competence and a stronger background in electrical work than the
unsuccessful applicant. (Id., adopting proposed decision at p. 30.) The ALJ added that
the employer could have legitimately rejected the unsuccessful applicant “based solely
upon his lack of inter-personal skills and his erratic and abusive behavior,” even if “the
offensive behavior may have, on occasion, occurred in pursuit of legitimate and
possibly protected issues.” (Ibid.) Here, in contrast, the evidence of discrimination for
protected activity outweighed the evidence supporting alleged alternative, non-
discriminatory rationales.
Temperament, work product, work ethic, and performance at an interview are
factors that would, on a different record, readily support an employer’s affirmative
defense. CCHCS simply has not made such a case. (Cf. City of Santa Monica (2020)
PERB Decision No. 2635a-M, pp. 34-35 & 58 (judicial appeal pending)
[preponderance of the evidence showed that employer’s interview panel promoted a
candidate other than the charging party because it selected the candidate who, unlike
charging party, gave a phenomenal interview in which she spoke in an engaging
33

manner and detailed her experience performing extremely relevant duties at past jobs,
and who had the past results and experience the interview panel sought].)
We also emphasize that no employer is automatically bound to offer a position
to a third-ranked candidate if the first two drop out. To the contrary, provided its
decision results from legitimate factors rather than discrimination against activity the
Dills Act protects, PERB would readily dismiss any challenge to such a decision. Here,
however, that is not what a preponderance of the evidence shows. Harris, the hiring
authority, admitted that he would have hired Healy if the panel had submitted his
name for appointment, but the record requires us to find that Healy’s protected activity
caused the panel to refrain from doing so. We agree with the ALJ’s conclusion that
Healy would have been appointed as a permanent AGPA in the HCCA position but for
his protected activities.
IV. 	CCHCS’s Exception Regarding the ALJ’s Proposed Remedy
The Legislature has vested PERB with broad powers to remedy unfair practices
or other violations of the Dills Act and to take any action the Board deems necessary
to effectuate the Act’s purposes. (Dills Act, § 3514.5, subd. (c); Pacific Legal
Foundation, supra, 29 Cal.3d at p. 198; Mt. San Antonio Community College Dist. v.
Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189-190; City of Palo
Alto (2019) PERB Decision No. 2664-M, p. 2 (Palo Alto); City of San Diego (2015)
PERB Decision No. 2464-M, p. 42, affirmed sub nom. Boling v. Public Employment
Relations Bd. (2018) 5 Cal.5th 898, 920.) An appropriate remedy must fully
compensate affected employees for harms caused by an unfair practice. (Palo Alto,
supra, PERB Decision No. 2664-M, p. 3; City of Pasadena (2014) PERB Order
34

No. Ad-406-M, p. 13.) The Board therefore crafts make-whole remedies, including
“back pay, front pay or other forms of compensation,” as necessary “to make injured
parties and/or affected employees whole.” (Sonoma County Superior Court (2017)
PERB Decision No. 2532-C, p. 40; cf. Local Joint Executive Bd. of Las Vegas v. NLRB
(9th Cir. 2018) 883 F.3d 1129, 1139-1140 [NLRB abused its discretion by ordering
make-whole remedy that failed to compensate the affected employees].) In addition to
these restorative and compensatory functions, a Board-ordered remedy should also
serve as a deterrent to future misconduct, so long as the order is not a patent attempt
to achieve ends other than those which can fairly be said to effectuate the policies of
the Act. (Palo Alto, supra, PERB Decision No. 2664-M, p. 3; City of San Diego, supra,
PERB Decision No. 2464-M, pp. 40-42; City of Pasadena, supra, PERB Order
No. Ad-406-M, pp. 12-13.)
The ALJ’s proposed order directs CCHCS to (1) offer Healy the next available
SSA/AGPA position at San Quentin, and (2) provide Healy back pay and front pay as
necessary to reimburse him for all losses he has incurred and will incur from the time
he was denied the HCCA position on September 29, 2017, until the time he is placed
in the next available SSA/AGPA position at San Quentin. CCHCS and SPB argue that
the merit principle set forth in the California Constitution and the Civil Service Act bars
PERB from awarding Healy the next available AGPA position without a competitive
interview process.25 In contrast, SPB offers no objection to an order requiring back
25 The California Constitution at Article VII, section 1, subdivision (a) provides
that “every officer and employee of the State” is in the state civil service system,
unless otherwise exempted. Section 1, subdivision (b) states that civil service
employees are appointed and promoted “based on merit,” which is to be “ascertained
by competitive examination.” Section 2 provides for SPB to administer the state civil
35

pay, front pay, and/or placing Healy in the San Quentin HCCA position that he was
denied, instead conceding that those remedies do not violate the merit principle.
We review the substantial precedent in this area in Part A below, and we then
proceed to discuss the appropriate remedy for this matter in Part B below.
A. 	PERB’s Authority to Remedy Discrimination Against State Employees
Precedent establishes that, notwithstanding SPB’s jurisdiction to enforce civil
service laws, prescribe classifications, and review disciplinary actions against state
civil service employees, PERB is authorized to provide a full remedy if such
employees experience discrimination for engaging in activity the Dills Act protects.
First, in Pacific Legal Foundation, supra, 29 Cal.3d 168, the California Supreme Court
rejected a facial challenge to Dills Act provisions allowing PERB to investigate and
devise remedies for unfair practices. (Id. at p. 197, fn. 19.) The Court explained that
PERB’s authority over unfair practices did not infringe on SPB’s jurisdiction to review
disciplinary actions because SPB and PERB were created to serve “different, but not
inconsistent, public purposes.” (Id. at p. 197.) The central point underpinning the
Court’s reasoning is critical to the instant case as well: if the State, in the course of
making a personnel decision, discriminates against protected activity in violation of the
Dills Act, it transgresses the merit principle as well. (Id. at p. 198.) Thus, the Court
declined “to construe article VII, section 3, subdivision (a) in a manner that would
service system. Section 3, subdivision (a) describes the SPB’s duties: “The [SPB]
shall enforce the civil service statutes and, by majority vote of all its members, shall
prescribe probationary periods and classifications, adopt other rules authorized by
statutes, and review disciplinary actions.” As noted above, to implement article VII, the
Legislature enacted the State Civil Service Act, Government Code sections 18500-
19799.
36

deprive all state civil service employees of the important safeguards afforded by
[PERB and other] specialized agencies.” (Id. at p. 199.) In reaching this conclusion,
the Court noted that when the Legislature enacted the Dills Act, it explicitly tailored the
law so as not “to contravene the spirit or intent of the merit principle.” (Dills Act,
§ 3512.)
Four years after Pacific Legal Foundation, the Court held that two other state
agencies charged with remedying employment discrimination similarly complement
SPB’s role rather than infringing on it. (State Personnel Bd. v. Fair Employment and
Housing Com. (1985) 39 Cal.3d 422 (Fair Employment and Housing).) There, three
unsuccessful state civil service applicants claimed that they had been rejected
because of physical disability discrimination in violation of the Fair Employment and
Housing Act (FEHA, Gov. Code, §§ 12900-12996). At the request of SPB, a trial court
enjoined both the Department of Fair Employment and Housing and the Fair
Employment and Housing Commission (FEHC) from enforcing FEHA in matters
involving the state civil service, concluding that doing so conflicted with SPB’s
exclusive jurisdiction over state civil service employment. (Fair Employment and
Housing, supra, 39 Cal.3d at p. 427.) The Court disagreed, holding that the merit
principle governing state civil service was reinforced, rather than hindered, by
enforcing FEHA, which “guarantees that nonmerit factors such as race, sex, [and]
physical handicap” would play no role in appointing state civil service employees. (Id.
at p. 439.) The Court also noted that the trial court had ruled before the Court, in
Pacific Legal Foundation, “rejected the ‘exclusive jurisdiction’ interpretation of article
VII.” (Id. at p. 428.) Following that precedent, the Court explained, required it once
37

again “to reject [SPB’s] assertion of exclusive jurisdiction over civil service
discrimination complaints.” (Ibid.)
Most importantly, in both Pacific Legal Foundation and Fair Employment and
Housing, the Court specifically considered and rejected the idea that PERB remedies
might conflict with SPB’s authority to administer the state civil service remedies. In
Pacific Legal Foundation, the Court rejected the argument that granting PERB
jurisdiction to “devise remedies for unfair practices” is “irreconcilably in conflict with
[SPB’s] jurisdiction to ‘review disciplinary actions’ under [article VII].” (Pacific Legal
Foundation, supra, 29 Cal.3d at p. 196.) The Court found this argument “fails on
several grounds.” (Ibid.) First, the Court considered fact patterns such as those at
issue here—in cases that do not involve discipline—to pose virtually no risk of
conflicting SPB and PERB decisions. (Id. at p. 197 [“[E]ven in the case of employer
reprisals against an employee for protected activity, PERB’s unfair practice jurisdiction
would clearly pose no conflict with [SPB’s] jurisdiction if the reprisal took a form that
did not constitute a ‘disciplinary action’ reviewable by [SPB]”].)
Furthermore, the Court advised that “in those areas in which the [agencies’]
jurisdiction . . . overlap, familiar rules of construction” require “harmoniz[ing] the
disparate procedures” rather than invalidating one or the other. (Pacific Legal
Foundation, supra, 29 Cal.3d at p. 197.) The Court found harmonizing the agencies’
procedures should pose little problem even in the central area of overlap (disciplinary
cases), because, as noted above, remedying discrimination against protected activity
strengthens the merit principle. (Id. at pp. 198-199 [nothing in the Constitution
precluded the Legislature from establishing specialized “watchdog” agencies to
38

remedy discrimination, as such discrimination is not a legitimate basis for determining
merit].) Therefore, the Court found it would be an overreach to reserve only to SPB all
authority to remedy unlawful actions against a civil service employee. (Id. at p. 199.)
The Court continued this line of reasoning in Fair Employment and Housing,
supra, 39 Cal.3d 422, finding that FEHC had full authority to order reinstatement,
hiring, promotion, and back pay in order to make whole state civil service employees
and applicants who have experienced discrimination. (Id. at p. 429.) While SPB urged
the Court not to allow both FEHC and SPB to assess and remedy discrimination, the
Court held that neither agency supplants the other, and the Court noted that FEHC
plays a valuable role because of its particularized expertise in discrimination on the
basis of race, religion, sex, age, and other factors. (Id. at pp. 431-432.) The Court
reaffirmed Pacific Legal Foundation and its holding that the Constitution allows the
Legislature to create “specialized watchdog” agencies such as PERB and FEHC (id. at
pp. 438-439), explaining that it is not difficult to harmonize the agencies’ powers
because they serve complementary purposes (id. at p. 438). The Court reiterated that
it believed the main source of overlap would be in cases involving discipline and that
even in such cases SPB’s jurisdiction does not dislodge the Legislature from creating
specialized agencies with complementary roles, such as PERB and FEHC. (Id. at
p. 439.)
Fair Employment and Housing involved hiring and competitive examinations
rather than discipline. Accordingly, as in the instant case, SPB claimed exclusive
authority over “examinations and appointments in the civil service” based on article VII
of the Constitution. (Id. at p. 440.) The Court emphatically rejected this argument,
39

finding that “the principle of selection by competitive examination” is found in article
VII, section 1, subdivision (b), but “that section creates no powers in [SPB]. Rather,
[the SPB’s] constitutional powers derive from section 3, subdivision (a) of that article,
which includes no mention of examinations.” (Ibid., emphasis supplied.) Moreover, the
Court rejected SPB’s argument that “its power over examinations is inextricably
intertwined with its constitutional mandate in section 3 to ‘prescribe classifications,’”
noting that the argument “fails in the face of our reasoning in Pacific Legal
Foundation.” (Ibid.)
CCHCS and SPB rely on inapposite cases in which the California Supreme
Court found that parties to a collective bargaining agreement cannot bargain for
provisions that alter SPB’s authority and the merit principle. First, in California State
Personnel Bd. v. California State Employees Assn., Local 1000, SEIU, AFL-CIO
(2005) 36 Cal.4th 758 (California State Employees Association), the Court invalidated
collectively bargained post-and-bid programs that allowed promotion of state
employees from a list of eligible candidates based entirely on seniority rather than
merit. The Court noted that Pacific Legal Foundation permits the Legislature a free
hand to fashion new laws relating to personnel administration (id. at p. 767), but the
Court held that a collective bargaining agreement may not substitute a new definition
of merit (id. at p. 772).
Following California State Employees Association, the Court found that a
collectively bargained grievance/arbitration procedure conflicted with SPB’s authority
because it allowed disciplined state employees to bypass review before the SPB in
favor of pursuing a private grievance and arbitration procedure. (State Personnel Bd.
40

v. Department of Personnel Admin. (2005) 37 Cal.4th 512, 526-527 (Department of
Personnel Administration).) The Court explicitly distinguished Pacific Legal Foundation
and Fair Employment and Housing because those decisions, like the instant case,
involved expert statutory agencies (PERB and FEHC, respectively) carrying out “a
specialized function that supplemented rather than supplanted the central adjudicative
function of the [SPB].” (Id. at p. 524.) Because discrimination is not a legitimate basis
for determining merit, PERB and FEHC advance the merit principle by remedying
discrimination. (Id. at p. 525.) The Court therefore left no doubt that its four-decade-old
rule remains in place and PERB is authorized to remedy Dills Act discrimination.
PERB precedent is consistent with the foregoing jurisprudence, in that it
demonstrates the Board orders its standard remedies to the extent needed to make
whole a state employee who has proven discrimination or retaliation. In State of
California (Department of Corrections) (2001) PERB Decision No. 1435-S
(Department of Corrections), for instance, PERB found that the State retaliated
against a union steward for engaging in protected activities when it investigated him,
reprimanded him, and rescinded his promotion to chief engineer, a civil service
position which he had accepted but not yet assumed. (Id., adopting proposed decision
at pp. 26-48.) By the time of the Board’s decision, the State had long since filled the
chief engineer position, posing a remedial challenge like the one presented here,
where CCHCS has filled the HCCA position. The Board concluded that it would not
effectuate the purpose of the Dills Act to have the discriminatee displace the ultimately
successful applicant. (Id., adopting proposed decision at pp. 48-49.) To effectuate the
purposes of the Dills Act and make whole the discriminatee, the Board directed the
41

State to reimburse him for all losses until he was placed in a comparable position
“acceptable to him,” which the Board found to be the next available chief engineer
position. (Id., adopting proposed decision at pp. 49-50.)
CCHCS cites Lemoore Union High School District (1982) PERB Decision
No. 271 (Lemoore), in which the Board found that an employer’s unlawful
discrimination denied an employee a fair opportunity to compete for a vice principal
position, but the record did not demonstrate that she would, more likely than not, have
received the promotion absent discrimination. (Id. at p. 3.) Since the only proven
adverse action was denying a fair opportunity rather than denying a promotion, the
Board directed the employer to reconstitute the interview panel and redo the vice
principal search before the next school year, make the process fair by denying the
candidate chosen the first time any advantage from having performed in the position,
and otherwise expunge all discriminatory aspects of the process. (Id. at pp. 4-5.)
The Board’s remedy in Lemoore put the candidate chosen the first time at risk
of displacement. Such a remedy may best effectuate the purposes of the law we
enforce in select cases, such as where the promotional opportunity at issue was
unique (meaning there will likely be no alternative spot to place the discriminatee for
quite some time), and the record is insufficient to demonstrate whether, absent
discrimination, the discriminatee would have earned the promotion. In more recent
PERB decisions where either of these elements has been missing, the Board has
disfavored removing an innocent incumbent chosen over a discriminatee. (Department
of Corrections, supra, PERB Decision No. 1435-S, pp. 49-50; State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S, pp. 18-19,
42

overruled in part on other grounds by County of Santa Clara (2017) PERB Decision
No. 2539-M (Department of Parks and Recreation) [where State denied promotional
opportunity in park ranger training program due to union steward’s protected activities,
Board declined to remove incumbent employee awarded the opportunity and instead
directed State to offer steward next available comparable opportunity].)
B. 	Fashioning a Fair and Effective Remedy in the Present Circumstances
As the above authorities explain, reversing a discriminatory refusal to promote
does not run afoul of the merit principle; rather, it is discrimination that frustrates the
merit principle. These authorities also illustrate, however, that PERB has considerable
discretion in crafting a remedy to fit the circumstances of each case.26
In fashioning a remedy to fit this case, we keep in mind that CCHCS evaluated
Healy at multiple stages. First, San Quentin’s Human Relations analysts determined
Healy was list-eligible for appointment to a position in the AGPA classification.
26 We fear the majority and concurring opinions herein largely talk past one
another on the extent of the Board’s discretion. Both the majority and concurring
opinions note that the Dills Act shall not be “construed to contravene the spirit or intent
of the merit principle. . . . provided by Article VII of the California Constitution or by
laws or rules enacted pursuant thereto.” (Dills Act, § 3512.) In harmonizing the Dills
Act with the merit principle, we do not write on a blank slate. Rather, as discussed
above, our state’s highest court has explained that discrimination for protected activity
harms the merit principle, and remedying discrimination therefore strengthens the
principle. Since our concurring colleague fully joins the remedy we order in today’s
opinion, it seems that as a practical matter our disagreement centers on whether
PERB violated article VII of the Constitution two decades ago, in Department of
Corrections, supra, PERB Decision No. 1435-S, by awarding a discriminatee the next
available chief engineer position. While the concurring opinion suggests the remedy in
that decision was constitutionally infirm, we continue to regard it as a sound exercise
of the Board’s discretion.
43

Second, Human Relations screened Healy’s application and determined that he met
the position’s minimum qualification: 12 months’ experience working in the SSA or
AGPA classification. Then, Human Relations scheduled Healy for an interview, along
with three other top applicants. Next, notwithstanding panelists’ false and pretextual
allegations regarding Healy, the panel nonetheless placed him in the “first rank” (top
three), deemed him “competitive”—meaning he demonstrated the required level of
knowledge and understanding—and recommended him to advance with the other two
first rank candidates for a reference check. While discrimination prevented CCHCS
from checking Healy’s references, the record further shows that: Fox rated Healy
highly and therefore would have given him a strong reference had the panel followed
its norms and contacted him; Harris would have selected Healy for the job if the panel
had forwarded his name; Harris thought Healy would do a fine job in the HCCA
position; and Hickerson confirmed that Healy did in fact meet expectations during his
brief stint in the OOC before CCHCS cut the assignment short.
The above facts distinguish this case from Kidd, supra, 62 Cal.App.4th 386. In
that case, an affirmative action program allowed certain female and minority
applicants to be considered for state positions even though they did not place among
the top three ranks, thereby violating the merit principle by relying on non-merit factors
(race and sex) in the appointment process. (Id. at pp. 401-402.) Healy’s ranking
among the top three applicants also makes this case very different from Alexander v.
State Personnel Bd. (2000) 80 Cal.App.4th 526. There, a demonstration project
44

required an examination, but did not grade it, and in fact dispensed with ranking
applicants altogether, which again violated the merit principle. (Id. at p. 543.)27
Had Healy not been denied the HCCA position because of discrimination, he
would have been classified as an AGPA by no later than September 29, 2017 (the
date CCHCS notified him that he was not selected). The instant facts therefore call for
a stronger remedy than in Lemoore, supra, PERB Decision No. 271, where we merely
ordered the employer to redo its hiring process. We have little trouble determining that
a fair and effective make-whole remedy must direct CCHCS to reclassify Healy into
the AGPA classification retroactive to September 29, 2017, with back pay.28
The primary question concerns whether CCHCS must automatically place
Healy in the next AGPA position that becomes vacant. Commenting on Department of
Corrections, supra, PERB Decision No. 1435-S, SPB finds it likely that the case did
not feature any challenge to PERB’s authority to direct the State to appoint the
discriminatee to the next available chief engineer position. If such a challenge had
been brought, it would have lacked merit based on the foregoing appellate precedent.
However, we also note SPB’s suggestion that two factors distinguish this case from
27 Similarly, Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963
is distinguishable because there an employee sought, as an accommodation,
reassignment to a different civil service classification without complying with the
examination process.
28 While the ALJ focused her proposed remedy on Healy obtaining either an
SSA or AGPA position, we find that absent discrimination, CCHCS would have hired
Healy as an AGPA, not as an SSA. We tailor our remedy to this finding. Moreover,
rather than ordering the reclassification to take effect immediately, we will give the
parties a 45-day period in which they may attempt to reach an alternate agreement to
make Healy whole for CCHCS’s discriminatory conduct.
45

Department of Corrections. First, in that case the State had offered the discriminatee a
chief engineer position before rescinding the offer for a pretextual reason. We do not
find this to be a material distinction. When the State offers an employee a promotion
before rescinding the offer for a pretextual reason, the critical point is that the
employee deserved the promotion under the merit principal. While that scenario may
be distinct from one involving an unqualified applicant who is also discriminated
against, it is not materially distinct from the instant case, where we have found Healy
would have been promoted absent discrimination and the alleged faults in Healy’s
qualifications—much like the alleged wrongdoing by the chief engineer in Department
of Corrections—was pretextual.
Second, SPB distinguishes Department of Corrections, supra, PERB Decision
No. 1435-S by noting that the AGPA classification is broader than the chief engineer
class, making it arguably less clear that Healy should be placed in the next available
AGPA position. While this point does not present a constitutional or statutory bar
preventing us from affirming the ALJ’s proposed order, it does impact how we exercise
our discretion and convinces us to refrain from directing CCHCS to place Healy in the
next AGPA position that happens to become vacant.
As noted above, SPB raises no objection to back pay and front pay until the
HCCA position next becomes vacant and CCHCS places Healy in it. Indeed,
combining back pay with front pay is typically warranted where there is no vacancy
into which an employee can immediately be placed. (See Horsford v. Bd. of Trustees
of Cal. State Univ. (2005) 132 Cal.App.4th 359, 388 [“Front pay usually reflects a
temporary situation that will be remedied by other relief ordered in the judgment. If, for
46

example, the court orders reinstatement of a fired employee or promotion to a job the
employee was denied as a result of discrimination, front pay might be awarded to
make up a wage differential if there were no vacancy into which the employee could
immediately be reinstated or promoted.”]; accord Department of Corrections, supra,
PERB Decision No. 1435-S, p. 50 [directing State to offer discriminatee the next
available chief engineer position and to reimburse him for “losses, monetary and
otherwise,” plus interest at seven percent per annum].)
Having considered all competing factors, we will direct CCHCS to reclassify
Healy retroactively to the AGPA classification, assign him appropriate duties29 at San
Quentin until the San Quentin HCCA position next becomes vacant, and place Healy
in the HCCA position if he is still an active State employee at that time. We thus
accomplish both the back pay and front pay through retroactive reclassification,
without specifying what AGPA position or duties CCHCS must provide Healy, other
than that they be appropriate AGPA duties that Healy can reasonably learn to perform.
We fashion the remedy in this manner primarily because the AGPA
classification comprises a diverse swath of both administrative and programmatic
roles. By declining to place Healy automatically in the next available AGPA position—
which could be far afield from his skill set given that the classification is so broad and
ubiquitous in state employment—we avoid the risk of placing him in a job he cannot
29 Appropriate duties are those within the general ambit of the AGPA
classification that CCHCS reasonably believes Healy can perform or learn to perform
through typical on-the-job training.
47

reasonably be expected to learn or perform. This approach ultimately aids both parties
in finding a workable path forward.30
Even though the HCCA position may be a relatively unique opportunity and may
also be unlikely to become vacant soon, we decline to require CCHCS to remove the
current incumbent HCCA to make room for Healy. Rather, we reaffirm that in the normal
course it does not effectuate the purposes of the Dills Act to displace an incumbent
chosen for a promotion over a discriminatee.
Providing only front pay without reclassification is another option we have
considered and rejected. Such a remedy generally does not provide full make-whole
relief given its negative impact on a discriminatee’s prospects for further career
advancement. Moreover, a long-running front pay award can place severe compliance
strains on all parties and on PERB, whereas retroactive reclassification should lead to
few, if any, future compliance disputes, as prospective compensation (including wage
increases and pensionable income calculations) will flow from the regular payroll
process rather than through a complex, ongoing compliance process.
For the foregoing reasons, we partially grant CCHCS’s exception and modify
the proposed remedial order as described above.31
30 SEIU Local 1000 submitted a non-party informational brief suggesting that we
require CCHCS to place Healy in the next vacant position for which he meets
minimum qualifications. This might be an apt approach in cases that involve
promotional classifications less broad than that at issue here, and/or based on other
evidence indicating that minimum qualification requirements would likely prevent
discriminatees from ending up in positions that do not fit their abilities. The remedy we
have selected is directed toward better attaining SEIU’s presumed purpose.
31 We also grant Healy’s two exceptions. First, in footnote 16, ante, we adjusted
a factual finding in the proposed decision. Second, we order interest on all amounts
48

V. 	CCHCS’s Exception Regarding the ALJ’s Alleged Finding that CCHCS Violated
the Merit Principle
CCHCS argues it was inappropriate for the ALJ to mention that the selection
process in this case violated the merit principle because it involved discrimination
based on protected activity. Unlike CCHCS, we do not read the proposed decision as
rendering a legal conclusion that CCHCS violated article VII of the state constitution.
In any event, to the extent that the proposed decision could potentially be read in that
manner, we amend it to clarify that we have not attempted to ascertain whether
CCHCS violated the constitution or the Civil Service Act.
PERB and SPB “are not in competition with each other.” (Pacific Legal
Foundation, supra, 29 Cal.3d at p. 197.) As noted above, discriminatory personnel
decisions violating the Dills Act “transgress the merit principle as well,” and “the
Legislature evidently thought it important to assign the task of investigating potential
violations of [the Dills Act] to an agency which possesses and can further develop
specialized expertise in the labor relations field.” (Id. at p. 198.) Accordingly, when we
find that a civil service decision was based on discrimination violating the Dills Act, our
findings are consistent with the merit principle, which requires that entitlement to civil
service positions must turn on lawful criteria. (Id. at pp. 196-200.)
owed. It is not clear from the proposed decision why the ALJ did not award interest.
While CCHCS has opposed Healy’s cross-exception seeking an interest award, we
find no cause to depart from our well-established precedent regarding back pay
interest. (Sonoma County Superior Court, supra, PERB Decision No. 2532-C, p. 42
[“Back pay, front pay and/or other monetary awards, plus interest, are an ordinary part
of Board-ordered remedies where necessary to compensate injured parties or affected
employees for out-of-pocket losses caused, in whole or in part, by an unfair practice”];
Department of Corrections, supra, PERB Decision No. 1435-S, at p. 49; Regents of
the University of California (1997) PERB Decision No. 1188-H, pp. 33-35.)
49

We do not view the proposed decision as reflecting an ALJ bent on superseding
SPB’s role. Rather, the passages CCHCS points out demonstrate the opposite
proposition. The proposed decision reflects the ALJ’s awareness that the Dills Act
“does not at all attempt to nullify the constitutional principle that employment should be
based upon merit; indeed, the statute reaffirms that precept.” (Proposed Decision,
p. 49, citing Pacific Legal Foundation, supra, 29 Cal.3d at p. 202.) Thus, far from
referencing the merit principle to make a finding as to an alleged violation of
California’s civil service scheme, we read the proposed decision as noting that the
ALJ’s discrimination findings were consistent with the Dills Act’s explicit recognition of
the spirit and intent of the merit principle. (Dills Act, § 3512.) In any event, we so hold,
thereby clarifying any ambiguity the proposed decision arguably contained.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire
record in the case, it is found that State of California (Correctional Health Care
Services), violated the Dills Act, Government Code section 3519, subdivision (a), by
refusing to promote Kevin M. Healy to the Health Care Compliance Analyst position at
San Quentin because he engaged in activity that is protected by the Dills Act,
Government Code section 3515.
Pursuant to section 3514.5, subdivision (c) of the Government Code, it hereby
is ORDERED that the State of California (Correctional Health Care Services) and its
representatives shall:
A. 	CEASE AND DESIST FROM:
Retaliating against Healy for engaging in protected conduct.
50

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1. No later than 45 days after this decision is no longer subject to appeal,
reclassify Healy into the AGPA classification retroactively to September 29, 2017 and
provide him with pay and benefits associated with that reclassification, both
retroactively to that date and prospectively. Interest at a rate of 7 percent per annum
shall accrue on the backpay portion of this award.
2. Beginning no later than 45 days after this decision is no longer subject
to appeal and on an ongoing basis thereafter, assign Healy appropriate duties at San
Quentin until the San Quentin Health Care Compliance Analyst position next becomes
vacant, and at that point place Healy in the position, if he remains an active State of
California employee at that time.
3. Within 10 workdays after this decision is no longer subject to appeal,
post copies of the Notice attached hereto as an Appendix at all work locations where
notices to San Quentin employees are customarily posted. The Notice must be signed
by an authorized agent of the State of California (Correctional Health Care Services),
indicating that it will comply with the terms of this Order. Such posting shall be
maintained for a period of 30 consecutive workdays. The Notice shall also be posted
by electronic message, intranet, internet site, and other electronic means customarily
used by the State of California (Correctional Health Care Services), to communicate
with San Quentin employees. Reasonable steps shall be taken to ensure that the
Notice is not reduced in size, altered, defaced, or covered with any other material.32
32 In light of the ongoing COVID-19 pandemic, Respondent shall notify PERB’s
Office of the General Counsel (OGC) in writing if, due to an extraordinary
51

4. The parties are permitted, by mutual agreement, to jointly request that
the General Counsel of the Public Employment Relations Board (PERB) alter the
timeframes in this Order to facilitate settlement discussions, or to jointly request that
the General Counsel otherwise adjust the Order, provided that no such changes
violate rights or duties provided under the Dills Act.
5. Written notification of the actions taken to comply with this Order shall
be made to the General Counsel. Respondent shall provide reports, in writing, as
directed by the General Counsel or his/her designee. All reports regarding compliance
with this Order shall be concurrently served on Kevin M. Healy.
Chair Banks joined in this Decision.
Member Shiners’ concurrence begins on p. 53.
circumstance such as an emergency declaration or shelter-in-place order, a majority
of employees at one or more work locations are not physically reporting to their work
location as of the time the physical posting would otherwise commence. If Respondent
so notifies OGC, or if Charging Party requests in writing that OGC alter or extend the
posting period, require additional notice methods, or otherwise adjust the manner in
which employees receive notice, OGC shall investigate and solicit input from all
parties. OGC shall provide amended instructions to the extent appropriate to ensure
adequate publication of the Notice, such as directing Respondent to commence
posting within 10 workdays after a majority of employees have resumed physically
reporting on a regular basis; directing Respondent to mail the Notice to all employees
who are not regularly reporting to any work location due to the extraordinary
circumstance, including those who are on a short term or indefinite furlough, are on
layoff subject to recall, or are working from home; or directing Respondent to mail the
Notice to those employees with whom it does not customarily communicate through
electronic means.
52

SHINERS, Member, concurring: I agree with the findings, conclusions, and
order in the majority opinion. I write separately to explain why the portion of the
administrative law judge’s (ALJ) proposed order requiring the State of California
(Correctional Health Care Services) (CCHCS) to offer Kevin M. Healy the next
available Associate Governmental Program Analyst (AGPA) position at California
State Prison, San Quentin—without conducting the civil service selection process for
that position—violated the constitutional merit principle and thus exceeded PERB’s
remedial authority.
“PERB has broad authority under the Dills Act to remedy unfair practices.”
(State of California (Department of Corrections and Rehabilitation) (2012) PERB
Decision No. 2282-S, p. 18; see Dills Act, Gov. Code, § 3514.5, subds. (a), (c).) But
PERB’s remedies “may not encroach upon statutes and policies unrelated to the Act
and, therefore, outside of PERB’s competence to administer.” (Boling v. Public
Employment Relations Bd. (2019) 33 Cal.App.5th 376, 388.) Of particular importance
in this case, the Dills Act explicitly says that “[n]othing in this chapter shall be
construed to contravene the spirit or intent of the merit principle in state employment .
. . provided by Article VII of the California Constitution or by laws or rules enacted
pursuant thereto.” (Dills Act, § 3512.)
The California Constitution mandates that all appointments and promotions to
permanent positions in the state civil service be “based on merit ascertained by
competitive examination.” (Cal. Const., art. VII, § 1, subd. (b).) Under this
constitutional merit principle, state employees must be “recruited, selected, and
advanced under conditions of political neutrality, equal opportunity, and competition on
53

the basis of merit and competence.” (Pacific Legal Foundation v. Brown (1981)
29 Cal.3d 168, 183-184 and fn. 7, internal quotations and citation omitted (Pacific
Legal Foundation).) And because the merit principle is enshrined in the state
constitution, neither the Legislature nor any other branch or agency of state
government may act inconsistently with it. (California State Personnel Bd. v. California
State Employees Assn., Local 1000, SEIU, AFL-CIO (2005) 36 Cal.4th 758, 771
(California State Employees Association).)
The civil service appointment process has three phases. In the first phase, a
competitive examination is administered to produce a certified list of eligible
candidates. In the second phase, the appointing authority reviews the eligible
candidates and selects the one best suited to the position.33 In the third phase, the
selected candidate serves a probationary period so the appointing authority may
evaluate the candidate for permanent appointment to the position. (California State
Employees Association, supra, 36 Cal.4th at p. 767.)
In California State Employees Association, the California Supreme Court held
that the constitutional merit principle applies to the second or selection phase of the
civil service appointment process. (36 Cal.4th at p. 772.) In that case, the Legislature
approved a memorandum of understanding (MOU) with a state employee union that
required an open position to be filled by the eligible candidate with the most seniority,
“regardless of the nature of the positions in which the seniority was earned, the
33 “‘Appointing authority’ or ‘appointing power’ means a person or group having
authority to make appointments to positions in the state civil service.” (Gov. Code,
§ 18524.)
54

specific duties and responsibilities of the position to be filled, or the relative
qualifications of the competing eligible [candidates].” (Id. at p. 768.) The Court found
that, while seniority “may be an appropriate factor in evaluating merit and efficiency,”
the merit principle does not permit the Legislature to deprive an appointing authority
“of the ability to interview eligible candidates and base their hiring decisions on a
broader range of criteria bearing on fitness and efficiency.” (Id. at pp. 771-772.) In so
finding, the Court noted that “the competitive examinations that result in eligible lists
typically test and rank only the general fitness and minimum qualifications required for
an entire class of positions” but “do not test for all the specific knowledge, skills,
abilities, and other personal characteristics and attributes that might reflect an eligible
candidate’s superior fitness for a particular position within a class.” (Id. at p. 772.)
California State Employees Association establishes that the merit principle
prohibits the Legislature and state agencies from requiring an appointing authority to
select a particular candidate for a civil service position without allowing the appointing
authority to conduct the selection process. (36 Cal.4th at p. 772.) The merit principle
thus bars PERB from ordering CCHCS to offer Healy the next available AGPA position
at San Quentin without a selection process.
Despite modifying the ALJ’s proposed order to instead require that Healy be
retroactively reclassified as an AGPA, the majority asserts the ALJ’s order was within
PERB’s remedial authority. As the Court recognized in Pacific Legal Foundation, a
personnel decision that discriminates in violation of the Dills Act also violates the merit
principle. (29 Cal.3d at p. 198.) But this does not mean that ordering an appointing
authority to offer a position to a discriminatee who has not gone through the selection
55

process for that position necessarily poses no conflict with the merit principle. And the
authorities upon which the majority relies fail to establish that no such conflict exists.
First, the majority relies heavily on Pacific Legal Foundation and State
Personnel Bd. v. Fair Employment and Housing Com. (1985) 39 Cal.3d 422 (Fair
Employment and Housing), in which the California Supreme Court ruled that the State
Personnel Board (SPB) does not have exclusive jurisdiction over discrimination claims
brought by state civil service employees but rather has concurrent jurisdiction with
specialized state agencies that adjudicate and remedy particular types of
discrimination. (Pacific Legal Foundation, supra, 29 Cal.3d at pp. 196-199; Fair
Employment and Housing, supra, 39 Cal.3d at pp. 438-439.) But neither CCHCS nor
SPB argues that PERB lacks jurisdiction over this case; they contend instead that the
merit principle limits PERB’s remedial authority in this case. Because neither Pacific
Legal Foundation nor Fair Employment and Housing speaks to the interplay between
PERB’s remedial authority under the Dills Act and the merit principle as it governs
appointments and promotions, these decisions provide no guidance on that issue.
Second, the majority contends California State Employees Association merely
prohibits collective bargaining agreements from altering the merit principle, and does
not limit the remedies available to specialized state agencies such as PERB. But the
Legislature’s adoption of an MOU with a state employee union is a legislative act.
(Stoetzl v. Department of Human Resources (2019) 7 Cal.5th 718, 740.) If the
Legislature cannot legislate in contravention of the constitutional merit principle, it
necessarily follows that when the Legislature delegates remedial authority to an
agency such as PERB, the agency likewise cannot act contrary to the merit principle.
56

(California State Employees Association, supra, 36 Cal.4th at p. 771; Kidd v. State of
California (1998) 62 Cal.App.4th 386, 401-402.) Indeed, the Legislature has explicitly
forbidden PERB from exercising its authority under the Dills Act in a way that
“contravene[s] the spirit or intent of the merit principle in state employment.” (Dills Act,
§ 3512.) Under California State Employees Association, ordering an appointing
authority to offer a discriminatee the next available position in a classification without
going through the civil service selection process for that position does just that.
Finally, the majority relies on State of California (Department of Corrections)
(2001) PERB Decision No. 1435-S (Department of Corrections), in which the Board
summarily affirmed an ALJ’s proposed order requiring the department to offer the
discriminatee “the next available chief engineer position in northern California.” (Id. at
p. 3 & adopting proposed decision at p. 50.) The Board’s decision does not indicate
that the department or SPB objected to the ALJ’s proposed order on the ground that it
violated the merit principle, or that the Board even considered that issue. Department
of Corrections therefore does not establish that PERB can order an appointing
authority to offer a position to a discriminatee who has not gone through the selection
process for that position. (See County of Orange (2019) PERB Decision No. 2657-M,
p. 15 [“It is axiomatic that cases are not authority for propositions not considered”].)
But to the extent Department of Corrections stands for that proposition, it should be
overruled as contrary to the constitutional merit principle.
In my view, an order requiring CCHCS to retroactively reclassify Healy as an
AGPA does not run afoul of the merit principle because reclassification does not
implicate the examination or selection phases of the civil service appointment process.
57

Such an order also provides Healy a fair and effective remedy under the
circumstances while allaying the concerns expressed in CCHCS’s and SPB’s briefs. I
accordingly join in the order.
58

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
KEVIN M. HEALY,
Charging Party,
v.
STATE OF CALIFORNIA, (CORRECTIONAL
HEALTH CARE SERVICES)
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-290-S
PROPOSED DECISION
(August 26, 2020)
Appearances: Kevin M. Healy, in propria persona; Marvin H. Stroud, Attorney, for
State of California (Correctional Health Care Services).
Before Alicia Clement, Administrative Law Judge
INTRODUCTION
In the above-referenced unfair practice charge, Kevin M. Healy (Healy or
Charging Party) asserts a single allegation of retaliation against by the State of
California (California Correctional Health Care Services)1 (Respondent or CCHCS). In
brief, Charging Party asserts that CCHCS managers refused to promote him to a
vacant position as the Health Care Compliance Analyst (HCCA)2 in retaliation for his
activities as a steward for Service Employees International Union (SEIU) Local 1000.3
1 CCHCS operates within the California State Prison system to provide medical,
dental and mental health services to California’s inmate population at all institutions
within the California Department of Corrections and Rehabilitation.
2 This position is also referred to as the “ADA Coordinator” position.
3 SEIU Local 1000 is the exclusive representative of bargaining units 1, 3, 4, 15,
17, and 20.

2
PROCEDURAL HISTORY
Charging Party filed the above-referenced Unfair Practice Charge on March 29,
2018. On May 2, 2018, Respondent filed a Position Statement in response to the
charge. On September 26, 2018, Charging Party filed a response to Respondent’s
May 2, 2018 Position Statement. On November 20, 2018, Respondent filed an
“objection” to Charging Party’s response. On January 17, 2019, Charging Party
withdrew allegations asserting violations of the union’s rights, and PERB’s Office of
the General Counsel (OGC) issued a Complaint asserting that Respondent violated
section 3519, subdivision (a), of the Dills Act. On February 13, 2019, Respondent
filed a timely Answer to the Complaint, denying any violation of the statute and
asserting a number of affirmative defenses. An informal settlement conference was
held on March 5, 2019, but the matter was not settled. The matter was transferred to
the Division of Administrative Law for Formal Hearing.
On May 9, 2019, the undersigned held a Pre-Hearing Conference to discuss,
among other things, a number of subpoenas duces tecum (SDTs) that were deemed
procedurally defective for failure to comply with PERB Regulation 32150(a). At that
time, Respondent filed a formal Motion to Revoke Subpoenas Issued to Dina Durano,
Dr. Eureka Daye, and Isaac Obando. On May 16, 2019, Charging Party filed his
Opposition to the Motion to Revoke the subpoenas for Durano, Dr. Daye and Obando.
On May 21, 2019, Respondent filed a Reply Brief in Support of Motion to Revoke
Subpoenas Issued to Dina Durano, Dr. Eureka Daye and Isaac Obando. On May 29,
2019, Respondent filed a Motion in Limine to Shorten Time to File Response, with
accompanying Memorandum of Points and Authorities. On June 3, 2019, Respondent

3
filed a Motion to Revoke or Amend Subpoena Issued to Carla McKinney with
Supporting Declaration of Marvin H. Stroud.
A Formal Hearing was held on June 3, 4, 14, and 18, 2019, during which time
period, Durano, Dr. Daye, Obando, McKinney, and others, were produced as
witnesses. Upon the conclusion of the hearing, the parties submitted closing briefs.
This matter was fully briefed and submitted for my determination on September 4,
2019.
FINDINGS OF FACT
Charging Party’s Work History
At all times relevant to this case, Charging Party was employed as an Office
Technician (OT) by CCHCS at California State Prison (CSP), San Quentin
(hereinafter, “San Quentin”). Charging Party had also completed several out of class
(OOC) stints as a Staff Services Analyst/Associate Governmental Program Analyst
(SSA/AGPA). Charging Party presented documentation demonstrating that in 2014,
he worked 40 days in an OOC assignment as an AGPA.4 In 2016, Charging Party
worked 280 days in an OOC AGPA position.5
The American Correctional Association (ACA) Accreditation Project:
Don Fox was a Correctional Health Care Services Administrator II (CHSA II) at
San Quentin from 2013 until 2018. During some of that period, he supervised Healy
directly. Fox recalled that Healy had worked to prepare for an audit by the ACA. The
work required Healy to review the facility’s compliance records for completion and to
4 See Exhibit 41.
5 See Exhibit 40.

4
report his findings. After these duties were completed, Healy filed a grievance
seeking, among other things, pay as an OOC AGPA for the time spent on the project.
As a result of the grievance, Healy was awarded pay as an SSA for approximately four
months to compensate him for his work on the project.6 This was in addition to the
two OOC assignments described above.
The Ophthalmology Project
In the Spring of 2017, the management team was having difficulty finding work
for Healy. In order to keep him busy, Chief Medical Executive (CME), Dr. Elena
Tootell, assigned Healy a discreet task within a larger project aimed at addressing
some medical malpractice cases by inmates against a particular ophthalmologist.
Descriptions of the project vary greatly.
According to Dr. Tootell, the project was fairly straightforward. She needed a
series of documents from approximately 17 patients’ charts to be submitted to a third-
party insurance billing group. Dr. Tootell described these documents as including the
“optometry note,” the “ophthalmology note,” and “any follow-up ophthalmology notes
from UCSF.” Dr. Tootell anticipated that her directive would entail Healy pulling 4-5
documents from each of the identified patients’ medical files, scanning those
documents, and emailing them to her. According to Dr. Tootell, this should not have
required Healy to engage in any analytical work regarding the patients’ records. An
email dated July 11, 2017 from Dr. Tootell to Healy lists the names of 17 patients and
asks for the following documents from each patient’s file:7
6 See Exhibit 42.
7 See Exhibit 43.

5
1. 	Consult note from [doctor] evaluated the patient and
decided to do cataract surgery
2. 	Cataract surgery from Dr. …
3. 	f/u note from Dr. …
4. 	optometry or other note that identified that a problem
occurred- an RFS [8] was likely written that day for UCSF
5. 	the ophthalmology notes from UCSF, and any new
surgeries from UCSF.
Dr. Tootell’s email does not state when she needed the information.
After a discussion with San Quentin’s then-Chief Executive Officer, Stephen
Harris, Healy asked Dr. Tootell in a July 14 e-mail whether additional patients should
be included in the project. Dr. Tootell’s response was only, “He [Harris] hasn’t talked
to me about this so I can’t respond.”9 On July 26, 2017, Dr. Tootell emailed Healy
again to check on his progress, as the third-party insurance billing group was
“anxiously awaiting the medical information.” No deadline was given in this email,
either.
In response to her directions, Healy presented Dr. Tootell with multiple pages of
documents which she estimated between 50-200 pages for each patient. When Healy
presented her with his findings, she informed him verbally that he had produced
records that she did not need or ask for. At the hearing, she made clear that she
intended this as a negative. Conversely, she also recalled telling Healy at the time
that he was “very thorough,” and that he had made her life a lot easier. When Healy
confronted her with these seemingly conflicting messages, she testified that she only
complimented his work in order to “move on with her day.”
8 “RFS” is a referral for service.
9 See Exhibit 44.

6
Fox recalled that Dr. Tootell had assigned Healy to work on the ophthalmology
project while Healy was reporting to Fox. According to Fox, the assignment was more
than a typical OT assignment, as it required what he referred to as, “data mining.” At
one point, Dr. Tootell stated to Fox that Healy was giving her more information than
she had asked for, but he understood the comment to have been positive. Admittedly,
Fox never discussed the scope of the project with Dr. Tootell, so he acknowledges
that he doesn’t know if Healy produced what she asked for, but on the other hand, Dr.
Tootell never told him that Healy had performed poorly on the project.
Fox expressed dismay at the hearing when he was presented with a copy of Dr.
Tootell’s August 13 email to Harris in which she describes Healy’s “argumentative and
frequent conflicts with others” and his “insufficient” work ethic. In contrast to Dr.
Tootell’s description of Healy, Fox found him to be “hard working, diligent,” and
“focused.” When Fox left San Quentin and transferred to CSP Centinela in November
2018, he and Healy reviewed Healy’s personnel file together. There was nothing
negative in Healy’s file at that time.
Organizing the Durable Medical Equipment (DME):
Tara Kessecker, a Licensed Vocational Nurse (LVN) testified about her
experience working with Healy in the Department of DME. The timeframe of this
collaboration was not clear but may have been as early as the year 2013. DME was
described as a small department, with one or two individuals working in close
quarters. Individuals in this department needed a fair degree of medical knowledge
and needed to be comfortable with medical terminology. For example, if a patient was

7
fitted with a colostomy, the department of DME needed to ensure that the patient had
all the necessary equipment supplied to them on a regular basis.
Working together, Kessecker and Healy established systems for dispersing
DME throughout the facility by shifting the responsibility from the DME department
staff who had previously delivered the materials, to the nursing staff who were tasked
with the responsibility to retrieve the DME. Some of the changes that were
implemented were met with resistance from the medical staff, though Kessecker
recalls that Healy was able to work with medical staff to ensure compliance with
procedures and documentation. Kessecker describes working with Healy in positive
terms and recalls Healy as someone who enjoyed hard work. She also describes him
as extremely detail-oriented in his work.
Charging Party’s Protected Activity
Representation of Nicole Smith:
On Monday, July 31, 2017, Contract Analyst Nicole Smith sent an email
message to Healy describing an interaction she had just had with McKinney. In brief,
Smith and McKinney had a disagreement over Smith’s interpretation of a policy that
she believed McKinney was violating and/or directing her to violate. During the
encounter in Smith’s office, McKinney spoke to her in a condescending tone while
standing too close to her and possibly while blocking Smith’s exit. Smith believed that
McKinney’s conduct was “[b]eyond inappropriate behavior for a manager.”10 Healy’s
same-day response was that he believed the behavior was inappropriate and,
although he was in training “this week,” he would help Smith by setting up a
10 See Exhibit 22.

8
supervisory meeting when he returned from training. In the meantime, Smith pursued
an informal resolution with San Quentin’s Chief Support Executive, Chad Hickerson.11
On August 24, 2017, Healy contacted Harris to initiate an informal pre-
grievance meeting regarding the July 31 encounter between Smith and McKinney.
Representation of a Pharmacy Technician:
Sometime over the weekend of August 12-13, 2017, a Pharmacy Technician12
at San Quentin notified Healy that she was being investigated by the Office of Internal
Affairs (IA). She had been directed to attend an IA interview on Tuesday, August 15,
2017, at 12:30 p.m., and contacted Healy to represent her at that meeting. Healy then
notified Harris, who was his supervisor at the time, of his need to take a few hours of
union leave in order to represent the Pharmacy Technician during her IA investigation.
On Monday morning, Healy notified McKinney that he would be representing an
employee in an IA investigation, including that he would need time to investigate the
matter. In a follow-up email, Healy “introduces” McKinney to Labor Relations Analyst
Barbara Brown and explains that it is critical that he be permitted leave time from his
regular duties in order to represent union members, and that he will be able to
complete both his job duties and his union steward duties, “but this will require a
11 See Exhibit 23.
12 This individual testified at the hearing and has been identified in the record by
her full name. Because the circumstances of the investigation and her identity are not
relevant to this unfair practice charge, I have omitted her name from this Proposed
Decision. See Transcript Volume II, beginning at page 49, and exhibits 27 and 28.

9
degree of trust and flexibility all the way around.”13 McKinney’s response states, in
relevant part,
“Thank you for the information. As stated in our previous
conversations, I do not have a problem with you conducting
your union steward duties. However, your duties as the
OOC ADA Analyst takes priority.”
On or about August 14, Smith witnessed an encounter between Healy and
McKinney at Healy’s cubicle. According to Smith, McKinney approached Healy and
told him that his union duties were interfering with his OOC HCCA duties, and that the
HCCA position would require more of his attention than his prior position, requiring
him to refrain from union duties while in the OOC. Although this was not corroborated
through Smith’s testimony or her declaration, this encounter was likely the
conversation described above where Healy notified McKinney of his need to represent
a Pharmacy Technician at an IA investigatory interview. Healy later met with the
Pharmacy Technician during work hours on Monday, August 14, and attended the IA
meeting with her during work hours on Tuesday, August 15.
Complaints About McKinney:
On August 28, 2017, Healy and four other union stewards signed a letter
addressed to Harris listing a number of concerns about McKinney’s management
style.14 The letter sought removal of McKinney from her management position, which
was still probationary at the time. The letter states, in part:
“The HCCA position was vacated by the experienced
incumbent reportedly only because of Ms. McKinney; she
13 See Exhibit 18.
14 See Exhibit 20.

10
would have stayed if Ms. McKinney were no longer her
supervisor. An out of class candidate refused to work
under her and declined an opportunity.”
The letter goes on to threaten “vigorous” actions against McKinney, including
individual grievances, unfair labor practice charges and charges with the State
Personnel Board, unless McKinney is “placed in an appropriate position that no longer
hurts our represented members.” Harris showed the letter to Dr. Tootell and asked
her for advice.
A few days after the August 28, 2017 letter was sent to Harris, Dr. Tootell spoke
to Jaime Molina about it. At the time, Molina was Dr. Tootell’s clinic nurse, and also
the Union President. There are three different accounts of this conversation. The first
account of the conversation is taken from a declaration that Dr. Tootell made on
October 5, 2018.15 The second account of the conversation is taken from a
declaration of Jaime Molina on June 17, 2019. Molina did not testify at the hearing,
however, and his declaration must be treated as hearsay.16 The third account of the
conversation is from Dr. Tootell’s testimony.
Consistent throughout these three accounts is that the August 28 letter signed
by Healy and three other union stewards was the catalyst for the conversation
between Dr. Tootell and Molina, and that Healy was mentioned by name.
In her testimonial account of the conversation, Dr. Tootell states that the
conversation was about “union business,” though she could no longer recall what was
said with any particularity. Dr. Tootell also recalled that she “had been quite frustrated
15 See Exhibit 12.
16 See Exhibit 60.

11
by the work that [Healy] had done on the [ophthalmology project].” Dr. Tootell
believed that Healy was one of several employees who had been using the union to
complain about McKinney in an effort to deflect attention away from his/their own poor
performance.
On September 2, 2017, Healy sent a lengthy email message to Dr. Tootell
detailing his experience in the OOC HCCA position. In what amounts to several
pages of printed text, Healy details a number of complaints about McKinney in her role
as his supervisor/trainer, while refuting several presumed allegations by McKinney
criticizing his performance in the OOC HCCA position. Dr. Tootell’s response is,
“Thank you for letting me know.”17
The Skelly Hearing
Sometime in August 2017, a Registered Nurse, “DL,”18 received an Adverse
Action for which the penalty was a 5% reduction in pay for a period of six months.
Healy represented DL at a Skelly hearing on August 31, where CEO Harris served as
the Skelly Officer.
On September 9, 2017, Healy sent an email message to Dr. Tootell in her
capacity as acting CEO, seeking a withdrawal of DL’s Adverse Action.19 Dr. Tootell
responded on September 13 that Harris would be back the next day, deferring the
17 See Exhibit 37.
18 This individual is identified in the record but did not testify. I have omitted
use of their full name both because it is not material to the issue at hand and to
preserve, to the extent possible, their privacy with regard to what is clearly a personnel
matter.
19 See Exhibit 67.

12
decision to Harris. On September 14, 2017, DL received notice from Harris that the
Adverse Action was being revoked.20
Dr. Tootell recalled DL as a poor employee with “significant problems, patient
care problems.” She did not recall the particular incident that gave rise to this Adverse
Action but stated that she wouldn’t have involved herself in the matter, as Adverse
Actions are private personnel matters.
Representation of PS21
In September 2018, Healy raised a concern to Dr. Tootell about her treatment
of PS. Specifically, Dr. Tootell included a second Probationary Report in PS’s
personnel file that was issued after the close of PS’s probationary period. On
September 14, 2018, Healy threatened to file a grievance on behalf of PS unless Dr.
Tootell removed the September 10 Probation Report from PS’s personnel file.
The Health Care Compliance Analyst Position
A Duty Statement for the OOC HCCA states, in part, that the incumbent in the
position “will independently perform the analytical work in support of evaluating,
monitoring, and maintaining institution compliance with various federal court
mandates, federal and state regulations, and department policies and procedures.”22
Some of the regulations and mandates listed in the duty statement include the
20 See Exhibit 74.
21 This individual was identified in the record but did not testify. I have omitted
use of their full name both because it is not material to the issue at hand and to
preserve, to the extent possible, their privacy with regard to what is clearly a personnel
matter.
22 See Exhibit 9.

13
Disability Placement Program, the Armstrong Remedial Plan, the Developmental
Disability Program, the Clark Remedial Plan, and the Americans with Disabilities Act,
among others.23 Additional tasks include reviewing and evaluating external audit
reports, preparing Corrective Action Plans to address any identified deficiencies, and
reporting allegations of staff non-compliance. Essentially, the position is an internal
watchdog with a subject-matter focus on compliance with inmates’ disability rights.
In the summer of 2017, Dina Durano was the HCCA at San Quentin. Durano
describes her day-to-day duties in the HCCA position as ensuring that “Effective
Communication” is addressed by medical personnel any time they interact with an
inmate. “Effective Communication,” or “EC,” is used by both parties as a term of art.
EC must be practiced by medical staff when they interact with inmates to ensure that
the inmate and the clinician understand each other. This is especially important when
patients have hearing aids, speech impediments, or cognitive delays. The HCCA then
conducts audits by reviewing the clinician’s notes and/or interviewing the clinician to
determine what steps the clinician took to ensure that effective communication took
place between the clinician and the patient. Compliance issues on the custody side of
operations usually arise in two ways—either staff inform the HCCA that certain
equipment needed by the inmate is unavailable, or the inmate files a complaint
asserting that custody is not complying with their ADA needs. Examples of complaints
include that the inmate should have been issued a cane or wheelchair or assigned to
23 Both parties make repeated reference to the “Armstrong” litigation. I
presume this to be a reference to Armstrong v. Wilson (9th Cir. 1997) 124 F.3d 1019,
in which the Ninth Circuit held that the Americans with Disabilities Act and the
Rehabilitation Act were applicable to prisoners and parolees in the California state
correctional system.

14
a bottom bunk in a cell. The HCCA would then work with custody to ensure
compliance. At times this may mean physically inspecting the inmate’s housing
location.
According to the Organizational Chart, the HCCA reports directly to the CEO.
Despite the notation on the organizational chart that indicates that the HCCA reports
directly to the CEO, Harris testified that he would never have been the trainer and
supervisor of the HCCA position because his work was too high level, and he just
didn’t have the knowledge base to train someone on their day-to-day tasks. In
practice, McKinney was assigned to perform the day-to-day supervision of the HCCA
position. Durano described several conflicts that she had with McKinney while
McKinney was her supervisor. Ultimately, Durano left the HCCA position in August
2017, in order to take the Community Partnership position, which she described as a
better fit for her background and experience. Durano did not attribute her departure
entirely to McKinney’s supervision, but cites conflicts with McKinney as a factor in her
decision to leave the HCCA position.
Among other duties, it was the HCCA’s job to ensure that inmates received the
DME they needed, and it was the job of the department of DME to supply the
materials. Kessecker described her work in the department of DME as having
frequent contact with the HCCA. For a period of time, the HCCA was Julie Beebe,
with Durano filling the position after Beebe took a medical leave of absence.
Kessecker worked closely with Beebe, Durano, and Healy, and when asked, stated
that she believed Healy had the appropriate skill- and mind-set for the HCCA job.

15
The Out of Class Assignment August 8 – 25, 2017
On July 6, 2017, Hickerson, posted an OOC opportunity for the HCCA position.
According to the announcement, the position was to begin on August 7, and the OOC
assignment would last indefinitely until a permanent candidate was hired.24 The
HCCA position was classified as an SSA/AGPA. The minimum qualifications for the
position included eligibility for the SSA/AGPA classification and 12 months of
experience at San Quentin. Healy submitted a letter expressing his interest in the
OOC position as well as detailing his relevant experience.25
Human Resources Analysts Janet Somosierra-Francisco and Maria Moore
oversee the Civil Service process for hiring medical personnel at San Quentin.
Although Francisco and Moore have an office located in the Plata Building on San
Quentin’s grounds, they report to Staff Services Manager I, Isaac Obando, whose
office is located in Elk Grove, California. Francisco, Moore and Obando described the
Civil Service hiring process in very broad terms.26
The procedure for filling OOC vacancies differs from the procedures for hiring a
permanent civil service position. When an OOC is offered, the hiring authority for that
position must select from qualified civil service candidates but may simply appoint the
eligible candidate of their choice and competitive interviews are not required.
24 See Exhibit 2.
25 See Exhibit 11.
26 California’s Civil Service System is governed by the State Civil Service Act,
found at California Government Code, section 18500-19799.

16
Harris served as CEO at San Quentin for a two-year term, ending on
September 7, 2018. In 2017, Harris was the hiring authority for the HCCA position,27
meaning that it was his decision alone to choose from the eligible candidates one
person to fill the OOC HCCA position. Both Obando and Harris recalled that there
were two candidates for the OOC HCCA position – Healy and Rodeline Habana.28
Initially, the position was offered to Habana, but Habana declined.29 After Habana
declined, the position was offered to Healy.
On August 7, 2017, Moore sent Healy an email message notifying him that he
had been selected as the OOC HCCA, and that he would start that position the next
day, on August 8, and that the OOC position would continue “for 120 days, or until the
position has been filled.”30 In early August 2017, Harris attended the annual National
Institute of Corrections (NIC) conference in San Diego. As a result, he was away from
his office from August 7 through August 11, 2017.
As the CME at San Quentin, Dr. Tootell is just below the CEO on the
organizational chart, and it was common practice for Dr. Tootell to take on the role of
27 Harris was medically unable to appear for in-person testimony, and his
testimony was taken telephonically. Additionally, Harris stated that his memory of the
events in question had been compromised as a result of his recent medical
treatments. To the extent that I was able to form an impression of Harris, I found him
open and forthcoming. Nevertheless, I view his testimony with some skepticism, given
his own characterization of his faulty memory and admitted inability to recall certain
key events.
28 This individual was only identified by name.
29 Habana did not testify.
30 See Exhibit A.

17
Acting CEO when Harris was away from his office. Dr. Tootell was distressed upon
learning that Harris had selected Healy for the OOC HCCA position. As Dr. Tootell
described it, her job is to oversee the medical care and medical providers, and to
coordinate with other healthcare departments and the institutional staff, areas of
responsibility that overlap with the HCCA’s areas of compliance oversight. Dr. Tootell
was strongly opposed to putting Healy in the OOC HCCA position and believed that
she had made her sentiments clear to Harris before he selected Healy for the OOC
position. Harris’s failure to take Dr. Tootell’s concerns into consideration marked the
culmination of a number of serious communication issues between Harris and Dr.
Tootell.
In response to Harris’s decision to place Healy in the OOC HCCA position, Dr.
Tootell tendered her resignation. News of Dr. Tootell’s resignation spread quickly.
Regional Healthcare Executive and Director of Women’s Health, Dr. Eureka Daye
intervened in the matter. Dr. Daye spoke with several individuals, including Dr.
Tootell, Harris and Health Program Manager III for Dental / Chief Compliance Officer
for Quality Management, Tonia Woodson. Harris recalls that he received a phone call
from Dr. Daye sometime during the week he was at the NIC conference. At the time,
Dr. Daye was concerned that placing Healy in the HCCA position would cause Dr.
Tootell to leave San Quentin, and she urged Harris not to hire Healy into the
permanent position. Harris and Dr. Daye further discussed Dr. Tootell’s resignation in
a series of email exchanges on August 10, 12, and 13.31 On August 12, 2017, Harris
31 See Exhibits 63, 64, and 53, respectively.

18
explains, he and Dr. Tootell have worked through a number of her concerns. Harris’s
email states, in relevant part:
“Finally[,] the OOC ADA position. I am told by Chad
[Hickerson] that Mr. Healy is meeting our OCC [sic]
expectations. As for the permanent ADA position, Mr.
Healy does not meet the minimum experience required for
the position. I have advised Elena [Tootell] as well. We are
forming an interview panel to include our CME. And the
ADA position will report to me. Let me also add that Mr.
Healy was offered the ADA position only after conferring
multiple times with Isaac Obana [sic] at HQ. Mr. Healy was
one of two qualified candidates. He was offered the OCC
[sic] position after Ms[.] Habana declined.”
Meanwhile, Healy began serving as the OOC HCCA on August 8.
According to Durano, the HCCA job duties can be learned in a single day by one who
is “medically inclined.” Durano provided between 90 minutes and six hours of training
to Healy early in his tenure on the job.32 She testified that this should have been
sufficient instruction for him to learn what he needed in order to perform the job
successfully. Durano had never received any training for the position and had taught
herself the job by studying the audit files. In contrast to her description of the job
duties as fairly straight-forward, Healy had difficulty learning all the responsibilities of
the job, and he presented a number of email communications between he and
McKinney in which he repeatedly sought to have Durano or McKinney provide
additional training.
On Monday afternoon, August 14, 2017, McKinney sent Healy an email
message inquiring whether he had begun the “EC audit.” Apparently, Durano had not
32 There was some discrepancy in this area. Durano at one point states that
she provided approximately 6 hours of training, and Healy appears to argue that of the
time Durano spent giving him training, only 90 minutes of it was valuable training.

19
completed the August audit prior to her departure from the HCCA position.33 Audits
are due on the fifth of every month, but extensions may be granted under some
circumstances. Notably, Healy began serving in the HCCA position on August 8, a
point at which the August deadline would already have passed. Healy responded that
he would need additional time to complete the audit, as Durano’s prior training of him
was insufficient, and he believed that Durano had purposely performed the work
poorly, in an attempt to sabotage the process and “get back at” Hickerson. McKinney
responded immediately that she would schedule time on Thursday to “go over the EC
[a]udit” with Healy.34 This exchange occurred on Monday, the first of two days in
which Healy took union release time to represent a Pharmacy Technician in an IA
investigation.
Because McKinney had been supervising the HCCA as well as performing the
work intermittently while CCHCS was searching for a permanent candidate, she was
familiar with the nature of the work performed by the HCCA. McKinney acknowledged
that, when Healy assumed the OOC HCCA position, the August audit had not been
completed by his predecessor. Nevertheless, she explained that an employee in an
OOC position is expected to step into the position without any training and assume all
the duties of the position immediately. If the former HCCA had not completed the
work, it would have fallen on Healy to do so. When pressed as to whether she had
ever informed Healy that the August audit had not been completed or if an extension
had been granted, McKinney could not recall if she had done so. McKinney did recall
33 See Exhibit 30.
34 See Exhibit 30.

20
informing Dr. Tootell that Healy had missed a deadline in August. Notably, in the
email exchange between Healy and McKinney on August 14, Healy disputes
McKinney’s characterization that they had missed a deadline, and states, “We are not
behind on the deadlines; this was confirmed with HQ yesterday.”35
Also on August 14, 2017, Moore sent an email to her supervisor, Isaac Obando,
notifying him that Harris would be ending Healy’s OOC assignment, and “[t]his will
definitely be escalated to the NR Manager.”36 Moore notified Francisco by email of
Harris’s request to cancel the OOC assignment. Not long after Moore alerted
Francisco to these concerns, Harris asked Francisco to “hold off a bit longer.” Harris
later explained that when he learned that Healy would need to take some union leave
time to address the issue with the Pharmacy Technician, he was concerned that
Healy’s representational duties would interfere with his completion of the OOC HCCA
duties. In light of this concern, Harris considered suspending the OOC assignment for
a brief period. Obando was aware of Harris’s tentative decision on August 14 to end
the OOC assignment and argued against it. As Obando explained, the whole reason
for the OOC was to have someone performing the work while they sought a
permanent replacement. Meanwhile, Healy continued to perform the HCCA work
during this period, apparently unaware of Harris’s concerns.
By 5 p.m. on Monday, August 14, Dr. Tootell had rescinded her resignation. In
an email to Dr. Daye, Dr. Tootell states that she had a conversation with Harris and
that they had “come up with a plan for the future.” The extent to which Dr. Daye was
35 See Exhibit 30.
36 See Exhibit A. “NR” is a reference to the Northern Regional Manager.

21
involved in either Dr. Tootell’s decision to stay at San Quentin or Harris’ decision not
to hire Healy in the permanent position is unclear. Dr. Daye was clearly annoyed that
she had been implicated in this matter. She had only vague recollections of the
particular events and denies taking an active interest in them—describing herself more
as a passive recipient of information. Although Dr. Daye met Healy in person for the
first time at the hearing, she recalled dealings with him several times in email and on
the phone to resolve concerns and grievances that he raised.37
On August 25, 2017, Francisco sent Healy a memorandum informing him that
his OOC assignment would end, effective at the close of business that day. At that
point, Healy had completed 18 days of the OOC assignment. The memo does not
state a reason for ending the assignment.38 When Moore learned that the OOC for
the HCCA position was being ended after only 18 days, she brought the matter to
Obando’s attention because there were “red flags” all over it. Obando did not share
Francisco’s concerns about irregularities. According to Obando, Healy’s OOC was
ended on August 25, only after they had selected a candidate for the permanent
position, and for that reason alone.
The Permanent HCCA Position
On August 17, Francisco notified Healy that he would be interviewed for the
permanent HCCA position at 11:30 a.m. the next day, August 18.39 Hiring for a
permanent civil service position involves a process that includes creating an interview
37 See Exhibit 47.
38 See Exhibit 9.
39 See Exhibit 8.

22
panel and interviewing individuals from a list of eligible candidates. Panelists are
given a written set of guidelines explaining the interview process, which they are
asked to sign.40 These guidelines state that all of the interview questions and any
notes taken by the panelists are considered confidential. Panelists are admonished
not to discuss the interview questions outside of the interview room. Candidates are
then ranked on their performance at the interview. Based on their rank, an applicant
may be “recommended” for the next phase, which is to check their references.
Obando stated that it is typical to complete reference checks on the top two to three
candidates. When reference checks are completed, the interview panel then
recommends one or more candidates for hire, often in order of rank. The ultimate
hiring decision belongs to the hiring authority and should be based on what is best for
the department and the organization, but the hiring authority’s discretion is confined to
a choice from among those candidates recommended by the panel.
Obando was personally involved in the recruitment, interviewing, and hiring for
the permanent HCCA position at San Quentin. Obando took a special interest in this
position because it was both critical to operations at San Quentin as well as being a
coveted position. He knew there would be fierce competition over the HCCA position,
and that the selection process would be scrutinized. The hiring panel for the position
included Obando, McKinney, Dr. Tootell and Woodson. Obando testified that all of the
rules and guidelines outlined in Exhibit G were observed at the August 18 interviews.
In the hours leading up to the August 18 interview, McKinney and Francisco
had a conversation about the HCCA interviews that was overheard by several
40 See Exhibit G.

23
witnesses. There is no dispute that the conversation occurred, but there are disputes
over many of the contextual details of the conversation, including location and timing.
The salient points, which are largely undisputed, are that McKinney and Francisco
were in the Plata Building, either in or near the HR Office; the conversation occurred
within the 24 hour period prior to Healy’s interview; at the time of her statements,
McKinney knew that she would sit on the interview panel; and McKinney stated that
Healy would not get the job.
Francisco recalled that McKinney came to the reception window for the HR
Office to drop off some paperwork. The conversation included the topics of the OOC
HCCA and the scheduled interviews for the permanent position. According to
Francisco, McKinney stated: “…Kevin is not getting the job. His job is with the Union.
He doesn’t have the focus to be an ADA Coordinator.” When Francisco asked, “what if
he is the best candidate for the position?” McKinney apparently responded, “if I have
anything to do with it, that won’t happen.” Francisco also recalled that Moore and
Nicole Smith, who worked in or near the HR Office at San Quentin, overheard
McKinney’s comments.
Moore’s recollection of the conversation was less vivid than Francisco’s, but
similar as to essentials. Moore recalls that McKinney came to the reception window
and was chatting with the personnel analysts. When Healy’s name came up,
McKinney stated, “there’s no way he’s going to get the job.” At the time, Moore
understood the comment to be a reference to Healy’s union activities because she
knew him to be an active union steward.

24
Smith recalled overhearing McKinney’s conversation with Francisco. According
to Smith, McKinney stated that Healy would never get the job under her (McKinney’s)
watch. Smith also signed a declaration that corroborates Francisco’s recollection of
the events.41
For her part, McKinney recalls having the conversation with Francisco inside
the HR Office, rather than at the reception window,42 but cannot recall what errand
had brought her to the HR Office. McKinney recalls stating at one point that Healy
would not get the job. According to McKinney, she stated that Healy would not get the
job because he did not seem to be interested in the job and had not been preparing
himself for the job. She did not recall making any comments explicitly about Healy’s
union duties. When pressed for examples of statements or behavior upon which she
based her belief that Healy wasn’t interested in the job or wasn’t preparing for the job,
she becomes evasive. Conversely, she acknowledges that Healy received some
training for the position, and that he was actively seeking additional training during the
brief period between the start of his OOC and the August 18 interviews, which directly
conflicts with her assertions that Healy seemed disinterested in the job and/or was not
preparing himself for the job.
41 See Exhibit 26.
42 This fine detail was the subject of much debate, in large part because it could
expose one or more of the participants of failing to observe a strict rule prohibiting
non-HR personnel from entering the HR office where confidential documents are
stored. Each party accuses the other of embellishing their respective accounts in
order to shield themselves from wrongdoing, while claiming that the other party was in
violation of the rule. I decline the invitation to weigh in on this matter, because the
points of agreement over this incident are far more compelling than the areas of
disagreement.

25
Francisco testified that she alerted Obando and his direct supervisor to the fact
of McKinney’s pre-interview statements during a meeting in March 2018,
approximately six months after the interview. Moore also recalls raising these
concerns to Obando in conjunction with Francisco, but with less particularity. Both
Francisco and Moore believed that McKinney should have recused herself from the
interview panel because she had already made statements that one of the applicants
was not going to get the job. Obando agreed that McKinney’s statements, even
uncorrelated to union activity, demonstrate that she did not have an open mind.
Admittedly, if he had known about McKinney’s statements prior to the interview, he
would have excluded her from the interview panel. McKinney maintains that she went
into the interview with an open mind, notwithstanding her statements to the contrary.
Four applicants were interviewed for the permanent HCCA position in August
2017. Only applicants who met the minimum qualifications for the position were
granted interviews. All four applicants were asked the same nine questions. Panelists
take notes of the applicants’ answers to these questions on a document provided for
that purpose. At the conclusion of all the interviews, panelists discuss the applicants’
answers together and assign a score for each applicant’s answer to each interview
question. These numerical scores are added and then divided by the total number of
points possible to determine a percentage. These percentages determine the
applicant’s rank in their respective applicant pool. After an applicant’s rank is
determined, all the documents containing the interview questions along with the
panelists notes and scores are collected and retained by the Human Resources
analysts as confidential documents. Only the score sheets from Healy’s interview

26
were produced at the hearing. These score sheets were heavily redacted so that only
Healy’s name, the date, the panelist’s name and the numerical scores for each
question were visible.
According to Obando, the top three candidates are always considered for hire,
and it is common practice (though not required) to complete reference checks on the
top three. In Francisco’s experience, an offer is typically made to the top-ranked
candidate. If that candidate declines, the panel makes an offer to the next ranked
candidate on the list. Admittedly, it is not a requirement that offers be made in order
of rank, or even that offers be made at all.
All four of the panelists testified about Healy’s performance at the August 18
interview. Of the four panelists, Obando gave Healy the highest marks. McKinney
recalled that Healy’s answers were “good” but “very long,” sentiments that were
echoed by Woodson. No testimony was taken regarding how other applicants
performed during the August 18 interviews, except to reveal their final scores.43
In this case, the top-ranked applicant scored 88%, while the second candidate
scored 65%. Healy scored 59% and was ranked third. All three of these applicants
were “recommended” for reference checks, the next phase of the hiring process.
Reference checks were completed on the first-ranked candidate.
The first-ranked candidate was offered the position and accepted sometime
before August 25. Unfortunately, this candidate never actually began the work of the
43 See Exhibit 50. To the extent that this is relevant, it is only to negate the
Respondent’s use of Healy’s comparative performance in the interview as a defense
to its failure to promote him. PERB’s task is not to determine which candidate was
best for the job, but in determining whether Respondent retaliated against Charging
Party, PERB may weigh the Respondent’s proffered justification for its decision.

27
HCCA and chose instead to remain at her prior assignment. In an email dated
September 5, 2017, Dr. Tootell asked Francisco to send her the references for
“candidate #2.”44 It is unclear if Dr. Tootell ever completed the reference checks on
the second-ranked candidate. Dr. Tootell stated that she never completed Healy’s
reference checks.
Healy was notified by a letter dated September 29, 2017, that he had not been
selected for the permanent HCCA position, and that another applicant had been
selected.45 The second-ranked candidate never assumed the position, however, and
Obando could not recall why the second-ranked candidate did not fill the position.
When asked why he had not hired Healy for the permanent HCCA position, Harris
responded that he did not hire Healy because the panel did not recommend him for
hire, and he had no reason not to support the panel’s recommendation. Instead of
hiring Healy, CCHCS re-advertised the position.46
The Second Round of HCCA Interviews
At length, only after more interviews, Madeline Tenney was hired as the HCCA
in May 2018.47 By that time, the HCCA position had been vacant for approximately 9
months, during which time, McKinney continued to perform the functions of the job.
The OOC was not reinstated during the interim.
44 See Exhibit 57.
45 See Exhibit 7.
46 See Exhibit H.
47 See Exhibit I.

28
Charging Party presented documents and elicited testimony regarding the
second round of interviews for the HCCA position. Presumably, his purpose in
presenting this evidence was to establish that Respondent deviated from its policy
during the second round of interviews. I explicitly decline to make findings as to
whether the second round of interviews was conducted according to applicable rules
and policies. Because Healy did not apply for the position a second time, his asserted
injury is confined to the original decision not to hire him, and whether a second pool of
applicants that did not include Healy was treated fairly, is not relevant to the issue
before me.
To the extent that any of the facts regarding the second round of interviews are
relevant, they are relevant for two purposes. First, the listing of the vacancy for a
second round of interviews establishes conclusively that none of the initial applicants
from the August 18 interviews was hired. Second, it is relevant that the position
remained vacant between late August 2017 and May 2018, during which time the
OOC HCCA was not reinstated.
ISSUE
Whether CCHCS’s decision not to hire Healy for the permanent HCCA position
was unlawfully motivated by Healy’s protected conduct.
POSITIONS OF THE PARTIES
Charging Party:
Healy argues that key figures in the decision not to hire him were motivated
specifically by a desire to retaliate against him for his protected conduct. He presents
both direct and circumstantial evidence of anti-union animus among the CCHCS

29
management team at San Quentin, including two of the four panelists that scored his
interview. On this basis, Healy contends that the hiring process was hopelessly
tainted, despite Isaac Obando’s inclusion on the hiring panel. He argues that
CCHCS’s justifications for removing him from the OOC position and for refusing to hire
him for the permanent position were demonstrably untrue and pretextual.
Respondent:
Respondent relies heavily on its compliance with the Civil Service rules as
evidence that the decision not to hire Healy was lawful and unbiased. It argues that
Charging Party failed to establish the prima facie elements of his case because he
failed to prove that all the members of his interview panel knew of his protected
activity and/or that the panel’s scores of Healy’s interview performance were
motivated by anti-union animus. Respondent addresses Charging Party’s requested
remedy of back pay and an appointment to an AGPA classification, asserting that such
a remedy would violate the merit principle in the California Constitution and be void as
outside of PERB’s authority.
DISCUSSION
I. 	Discrimination
The Dills Act prohibits the State from imposing reprisals on employees because
of their exercise of rights guaranteed by the Dills Act. (See Gov. Code, section 3519,
subdivision (a).) The prima facie elements of a retaliation claim under section 3519,
subdivision (a) require a charging party to establish: (1) the employee exercised rights
protected by the Act; (2) the employer had knowledge of the exercise of those rights;
(3) the employer took adverse action against the employee; and (4) the employer took

30
action because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210, (Novato).)
Once the Charging Party proves the elements of a prima facie case, the burden
shifts to the Respondent to establish both that it had an alternative non-discriminatory
reason for the adverse act and that its justification was in fact the cause of the adverse
action. (Palo Verde Unified School District (2013) PERB Decision No. 2337.)
A. Healy’s Exercise of Rights
It is unnecessary to discuss this issue at length. It is clear, and Respondent
does not seriously dispute, that Healy was an active union steward throughout the
relevant period. Nevertheless, I explicitly find that Healy engaged in protected
conduct on the following occasions.
On August 14 and 15, 2017, Healy took union leave time to represent a
Pharmacy Technician at an IA investigation.
On August 24, 2017, Healy represented Nicole Smith at an informal pre-
grievance meeting regarding an incident between Smith and McKinney.
On August 28, 2017, Healy signed a letter in his capacity as a union steward to
protest actions taken by McKinney in her role as a manager.
On August 31, 2017, Healy represented DL at a Skelly Hearing before Harris,
and on September 9 and 13, he sought a dismissal of DL’s Adverse Action from then
Acting CEO Dr. Tootell.
B. CCHCS’s Knowledge
It is Charging Party’s burden to show that the employer had knowledge of the
employee’s protected conduct, and that the adverse act was motivated by that

31
protected activity. (Novato, supra, PERB Decision No. 210, citing N.L.R.B. v. South
Shore Hosp. (1st Cir. 1978) 571 F.2d 677.) Employer knowledge is established when
at least one of the employer’s agents responsible for taking the adverse action against
the employee was aware of the protected conduct. (State of California (California
Correctional Health Care Services) (2019) PERB Decision No. 2637-S; Hartnell
Community College District (2018) PERB Decision No. 2567; Jurupa Unified School
District (2015) PERB Decision No. 2450; City & County of San Francisco (2011) PERB
Decision No.2207-M, adopting the General Counsel’s dismissal letter, p.5.) Such
knowledge “…need not be based on direct personal observation, but can be inferred
from the facts and circumstances involved.” (N.L.R.B. v. South Shore Hosp., supra,
571 F.2d 677, 683.)
According to Respondent, there were several agents responsible for the
decision not to hire Healy. The interview panel made recommendations to the hiring
authority, but the responsibility for the final decision rests with the hiring authority
alone.
1. 	The Hiring Authority
Harris, the hiring authority, was aware of Healy’s protected activity. As Harris
himself stated, his wavering attempt in early August to discontinue the OOC HCCA
was motivated by a concern that Healy would not be able to complete the HCCA job
duties if he was also taking union leave time. Thus, to the extent that the decision not
to hire Healy rested solely or even partly, on Harris’s discretion, employer knowledge
of Healy’s protected conduct is established.

32
2. 	The Interview Panel
The interview panel consisted of four individuals: McKinney, Dr. Tootell,
Woodson and Obando. It is not contested, and McKinney admits, that she was aware
of Healy’s protected conduct before the interview in early August. In addition to the
direct evidence of McKinney’s knowledge, there is circumstantial evidence upon which
I conclude that Dr. Tootell knew prior to the August 18 interview that Healy engaged in
protected activity. For example, Dr. Tootell stated that she had worked with Healy for
“many years,” such that she was able to become familiar with the quality of his work.
Dr. Tootell even supervised Healy intermittently, primarily as a result of her serving as
acting CEO from time to time. Healy’s union representation seems to have been
widely known by other supervisors, including Fox, Hickerson and Harris. Because Dr.
Tootell had known Healy for many years, was familiar with the quality of his work, and
had supervised him intermittently, it is reasonable to conclude that she, like his other
supervisors, was aware of his frequent and public representational activities on behalf
of himself and others, prior to August 18.
Even assuming Dr. Tootell was not specifically aware of Healy’s protected
conduct prior to his August 18 interview, she became aware of this fact shortly after
his interview. By her own admission, Dr. Tootell discussed Healy during a
conversation she initiated with Union President Molina on August 30, to discuss “union
business,” and a “letter of no confidence.” That letter contained Healy’s signature and
title as union steward. Moreover, it is clear from her description of that August 30
conversation with Molina, that Dr. Tootell believed Healy used the union as a method
either to protect himself or to protest management, or both. Since using the union for

33
the protection of oneself and ones coworkers and/or to protest management is the
sine qua non of protected activity under the statute, we should take her at her word
and deem her fully cognizant of his protected activity no later than her conversation
with Molina on or about August 30.
There is no direct evidence that Woodson or Obando knew, or had reason to
know, of Healy’s protected conduct. As noted above, Respondent argues that the
decision not to recommend Healy could not have been made in retaliation for his
protected conduct, because some members of the hiring panel were unaware of his
union activities when it recommended against his promotion. Because Respondent
raises this as a defense, I address this in section II.A., below. For purposes of
establishing the element of employer knowledge, however, it is sufficient that at least
one of the agents responsible for the adverse act was aware of the protected conduct.
I find that three of the five agents—Harris, McKinney and Dr. Tootell—knew of Healy’s
protected conduct before taking the adverse action in this case.
C. The Adverse Act
There can be little doubt that the decision by CCHCS management not to
promote Healy from an Office Technician to the permanent HCCA position, regardless
of the motivation, was an adverse act. As noted by Obando, the HCCA position was
sought-after and desirable, and it was important to the institution’s operations. The
HCCA position was classified as either a Staff Services Analyst or Associate
Governmental Program Analyst, both positions that receive higher pay than an Office

34
Technician.48 Thus, the failure to promote an individual from an OT to an SSA/AGPA
represents a loss of pay and professional advancement, and the failure to promote
Healy to the HCCA represents a loss of prestige. Accordingly, the failure to promote
Healy to the HCCA position was objectively adverse to his employment.
The only adverse act listed in the Complaint is the failure to promote Healy to
the vacant HCCA position on or about October 10, 2017.49 The interview occurred
more than six months prior to the date the charge was filed, and I am therefore
prohibited by statute from considering the interview scores evidence of a separate
retaliatory act. Nevertheless, both parties argue at hearing and in their closing briefs,
that the interview scores were an important factor in the decision not to recommend
Healy for the HCCA position. To the extent that I consider this argument, I do so only
for the purpose of contextualizing the Respondent’s ultimate decision not to promote
Healy.
48 I note that the Civil Service pay bands posted on the CalHR website, last
updated on February 19, 2020 show that an Office Technician earns between several
hundred and several thousand dollars less per month than a Staff Services Analyst
and/or an Associate Governmental Programs Analyst. (See www.CalHR.ca.gov/pay.)
49 The evidence presented at the hearing tends to establish that CCHCS denied
Healy’s promotion on September 29, but failed to notify him of that fact at any time
before October 6, the date the notice was mailed to him. No facts were presented
establishing that any operative event occurred on October 10, 2017. Nevertheless,
Respondent does not assert that the allegation in the charge is untimely, and did not
present any evidence to refute the Charging Party’s assertion that he learned of the
employer’s September 29 decision sometime after October 6, 2017. All of these dates
are within six months of March 29, 2018. Thus, the lack of clarity on this issue is
troubling, but ultimately immaterial. There is no doubt that Healy was denied the
promotion, and that the promotion was denied within six months of the date the charge
was filed.

35
According to Respondent, because the majority of the interview panel learned
of Healy’s protected conduct after it had scored his interview, his summative score
could not have been motivated by anti-union animus. Because the purpose of the
Novato test is to prove motive for taking the adverse action, Respondent’s argument is
relevant only if the decision not to promote Healy was based on his interview score.
Healy’s interview score rendered him eligible for hire. Sometime after scoring
his interview, the employer, through its agents Harris, McKinney, Dr. Tootell,
Woodson, and Obando, decided not to hire him despite his eligibility. Even assuming
his interview scores were completely free of unlawful animus (a finding I do not make),
there was a separate decision by the employer not to recommend Healy for the
position. Thus, while Healy’s interview scores were an important factor in the
employer’s decision not to promote Healy, they were not the only factor.
As noted by several of CCHCS’s human resources professionals, other factors
include more amorphous considerations like, who was the best “fit” for the position?
Ultimately, after taking these other factors into consideration, Healy was not promoted.
Accordingly, the nexus factors are explored in this case to determine, to the extent
possible, the employer’s motive for not recommending Healy for promotion to the
vacant HCCA position. Respondent’s motive for Healy’s interview scores is relevant
but not determinative to a finding of retaliatory failure to promote.
D. Nexus
Because retaliatory conduct is inherently volitional in nature, where it is alleged
that the employer has acted in reprisal against employees for participation in protected
activity, evidence of unlawful motive is the specific nexus required to establish a prima

36
facie case. (Novato, supra, PERB Decision No. 210.) The Charging Party has the
initial burden of demonstrating a causal connection or “nexus” between the adverse
action and the protected conduct. (Ibid.)
Direct proof of motivation is rarely possible. Therefore, the Board will consider
the record as a whole and may infer an employer’s motive from circumstantial
evidence. To that end, the Board has identified the following factors as being the most
common means of establishing a discriminatory motive, intent, or purpose: (1) timing
of the employee’s adverse action in close temporal proximity to the employee’s
protected conduct; (2) the employer’s disparate treatment of the employee; (3) the
employer’s departure from established procedures and standards when dealing with
the employee; (4) the employer’s inconsistent or contradictory justification for its
actions; (5) the employer’s cursory investigation of the employee’s misconduct; (6) the
employer’s failure to offer the employee justification at the time it took action or the
employer offering exaggerated, vague or ambiguous reasons; and (7) employer
animosity towards union activists. This list is not exhaustive, however, and in addition
to this list of common signs of discriminatory motive, the Board will consider any other
facts that might demonstrate the employer’s unlawful motive. (Novato, supra, PERB
Decision No. 210.)
Recent PERB decisions have emphasized the continued relevance of the
Board’s Novato discrimination standard, particularly that an unlawful motive is the
specific nexus that must be shown to establish a prima facie case. (See State of
California (California Correctional Health Care Services), supra, PERB Decision No.
2637-S, citing Cabrillo Community College District (2015) PERB Decision No. 2453.)

37
For example, the Board consistently recognizes that the timing of an employer’s
adverse action in relation to an employee’s protected conduct is a factor in
determining the employer’s motive, but temporal proximity alone is insufficient to
demonstrate that the employer’s action was motivated by the employee’s conduct.
Typically, a Charging Party must establish temporal proximity and at least one
additional factor that would link the employer’s decision to the employee’s conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.)
1. 	Temporal Proximity
As noted above, Healy engaged in multiple protected acts during the month of
August 2017, approximately one month before the employer’s September 29, 2017,
decision not to promote him. The proximity in time between the protected activity and
the adverse act goes to the strength of the inference of unlawful motive to be drawn.
(Moreland Elementary School District, supra, PERB Decision No. 227.) Thus, while
the relatively close proximity of Healy’s protected conduct to the adverse act is not
determinative of the employer’s motive, it gives rise to a strong inference in this case
that Respondent refused to promote Healy in response to his union activity.
2. 	Employer Animosity Toward Union Activity
Employer statements that disparage protected activity or the collective
bargaining process itself, by suggesting that unionization will result in loss of pay or
benefits, or that use of the representative’s grievance procedure is futile, have been
found to discourage participation in protected activity and thereby interfere with the
rights of employees and/or employee organizations. (City of Oakland (2014) PERB
Decision No. 2387-M; County of Riverside (2010) PERB Decision No. 2119-M.)

38
Employer statements of this nature may also be evidence of unlawful motive, as they
give rise to a logical inference that the employer might target union supporters for
adverse action. (California Virtual Academies (2018) PERB Decision No. 2584.)
a. 	Overt Union Hostility
McKinney expressed open hostility toward Healy’s union-related activities, both
verbally and in writing. She confirmed these statements and sentiments in her
testimony at PERB. At the hearing, McKinney seemed unaware of the objectionable
nature of her August 14 statement to Healy that she had “no problem” with him
performing union duties, so long as he understood that his work duties came first. The
statement is objectionable on its face. But putting the statement in context makes it
clear that this was not simply a lawful expression of opinion, but a coercive use of the
employer’s economic power to dissuade an employee from engaging in protected
activity.
Healy, a known union activist, had just begun a high profile and controversial
OOC placement when he was called upon as a union steward to represent an
employee at a prearranged IA investigation that was scheduled during work hours.
Healy then sought and was granted leave from his supervisor to represent the
employee for several hours over the course of two days. McKinney’s statement on the
first of those two days to the effect that Healy should prioritize his work duties over his
representational duties was clearly intended to discourage him from exercising his
Dills Act right to take union leave time. Given McKinney’s later statement to Moore
and Francisco that Healy would never get the permanent HCCA position because he
did not want the position badly enough, and her unsubstantiated claim that Healy

39
missed a deadline in the short period of his OOC assignment, McKinney’s earlier
statement to Healy takes on an even more ominous tone. Accordingly, I find that
McKinney’s statement to Healy on August 8 gives rise to an inference of unlawful
animus and establishes a nexus between his protected conduct and the failure to
promote.
b. 	Covert Union Hostility
Dr. Tootell expressed coded hostility toward Healy’s union-related activities,
both at the time of the events in question and in her testimony before PERB. As noted
above, Dr. Tootell described Healy as argumentative, and as having frequent conflicts
with others. The only evidence in the record of Healy being argumentative or having
conflicts with others involve his union duties. If Dr. Tootell or CCHCS had evidence of
Healy creating workplace conflicts that did not implicate his union duties, they should
have produced those facts at the hearing.50 Under the circumstances, I find that Dr.
Tootell’s characterization of Healy’s protected activity as creating workplace conflicts
establishes a nexus between his protected conduct and the failure to promote.
3. 	Unsubstantiated Claims of Poor Work Performance
In Kidde, Inc. (1989) 294 NLRB 840, the NLRB held that it is evidence of a
discriminatory motive when an employer observes misconduct without redirecting the
employee or disciplining the employee, all the while building a case against that
employee. Dr. Tootell relied heavily on her experience working with Healy on the
50 In her August 13, 2017 email to Harris, Dr. Tootell references “three thick
binders of material on the many associated issues surrounding Mr. Healy…”. These
materials were not presented at the hearing, and there is no further description of their
contents. See Exhibit 53.

40
ophthalmology project as evidence that he did not possess the necessary skills to
perform well as the HCCA.
Facts and evidence adduced at hearing demonstrate that Dr. Tootell gave
Healy the ophthalmology assignment with no deadline, was dismissive when Healy
reached out to her with questions about the scope of the assignment, then complained
to coworkers that Healy was not performing the assignment adequately while praising
Healy’s performance to his face. As this is the only concrete example Dr. Tootell
gives of Healy’s “insufficient” work ethic, it is highly suspect. Although Dr. Tootell
testified that she provided Healy with additional feedback and redirection, her
testimony on this point was vague and not corroborated by any written communication
to that effect. Analogizing to Kidde, Inc., supra, 294 NLRB 840, Dr. Tootell’s
assignment of the ophthalmology project to Healy without adequate direction or
instruction all while building the case that Healy was a poor employee, is evidence of
discrimination.
Similarly, McKinney informed Tootell that, while Healy was the OOC HCCA,
Healy had missed his August deadline for the EC audit. Even assuming a deadline
had been missed, there is no evidence that McKinney informed Healy of her concerns
about his work performance. Rather, the record includes an email inquiry from
McKinney about the status of the project, Healy’s response with concerns about the
project, and McKinney’s promise of additional support. Conspicuously absent from
the record is any evidence that McKinney informed Healy at any time that he was
failing to meet expectations. McKinney then repeated her concerns at the hearing that
Healy had failed to perform the job duties in a timely manner, despite being unable to

41
produce any objective evidence that such alleged failures occurred and/or that Healy
had been informed of the expectation at any point prior to the deadline. Accordingly,
McKinney’s conclusions about Healy’s work performance suffer from the same logical
fallacies in Dr. Tootell’s conclusions and should also be understood as pretextual.
4. 	CCHCS’s Departure From Established Procedures
a. 	Reference checks
Even where an employer has a managerial, statutory, or contractual right to
take an employment action, its decision to act cannot be based on an unlawful motive.
(County of Santa Clara (2019) PERB Decision No. 2629-M; County of Lassen (2018)
PERB Decision No. 2612; Berkeley Unified School District (2003) PERB Decision No.
1538.) Thus, even a statutory grant of discretion must be exercised in a non-
discriminatory manner.
Charging Party asserts that Respondent deviated from its established
procedures when it refused to complete post-interview reference checks on Healy.
Respondent agrees that, while it has established a general practice of completing
reference checks on the top three applicants, that practice is subject to some
discretion, and the panel acted within a normal range of discretion when it chose not
to conduct reference checks on Healy.
In this case, Woodson and Dr. Tootell completed reference checks for the first-
ranked candidate, and apparently began to do so for the second-ranked candidate.
And while Dr. Tootell stated definitively that Healy’s references were not checked, she
did not give a justification for her failure to do so. Standing alone the Respondent’s
failure to complete reference checks for Healy might not give rise to an inference of

42
unlawful animus. However, it is troubling that Respondent cites its exercise of
discretion as a defense to an adverse employment decision, but has failed to provide
the basis for exercising its discretion not to complete reference checks on one or more
applicants.
b. 	Prejudgment
Charging Party also points out that the hiring panel included a panelist
(McKinney) who stated publicly that she had predetermined the outcome of the
interviews, and that Healy would not get the job. Respondent admits that these
statements were made, and that the statements were sufficient to warrant removing
her from the panel, yet argues that other safeguards ensured that Healy was fairly
scored on his interview answers. This argument is another manifestation of
Respondent’s unwarranted focus on Healy’s interview scores to the exclusion of the
panel’s consideration of other factors. Even taking Obando at his word that Healy was
given fair marks on his interview, the interview scores were only one factor in the
overall decision. There are myriad other ways that McKinney might have influenced
the panel’s decision without overtly distorting his interview scores. Regardless of
whose responsibility it was to remove McKinney from the interview panel, her
participation after publicly declaring her prejudgment of one candidate’s fitness, even if
it had no effect on the interview scores, marked a departure from CCHCS rules and
procedures.
5. 	CCHCS’s Premature Revocation of the OOC
According to Moore and Francisco, it is unusual to end an OOC assignment
before the position is permanently filled, unless the OOC applicant fails to perform the

43
job. Yet Healy was removed from the position after only a few weeks, with no
permanent replacement and no objective showing that Healy was not performing the
job successfully. Even taking as true Obando’s explanation that the OOC position
was ended only after the permanent position had been offered to the first-ranked
candidate, this circumstance was outside of the norm. Whether Respondent’s
deviation from its standard procedures in this case was the result of a benign
miscommunication or due to retaliatory intent is subject to some debate.
Both Dr. Tootell and Harris stated that Healy did not meet the minimum
qualifications for the HCCA, contradicting Obando’s statement that only qualified
applicants were interviewed. On the official form requesting that interviews be
scheduled for the HCCA position, the minimum qualifications for the position are listed
as 12 months of experience working in the classification of SSA/AGPA.51 At the time
Healy began the OOC assignment, he had completed 280 days as an AGPA, and
another four months as an SSA, leaving him just shy of the one-year minimum
required work experience as an SSA/AGPA. Keeping Healy in the OOC for an
extended period would insure that he had attained the minimum experience in the
position. There was an initial attempt by Harris to curtail Healy’s tenure as OOC
HCCA, and Obando stepped in to prevent Harris from acting on that impulse, arguing
that the whole purpose for the OOC was to have someone performing the work while a
permanent replacement was sought. Just a few days later, the position was ended
with no permanent replacement, and without any apparent attempt to renew the OOC
once it was prematurely cancelled. Respondent never addresses the apparent
51 See Exhibit 49.

44
inconsistency between its stated purpose in creating the OOC HCCA and the fact that
it left the HCCA vacant for a nine-month period, rather than permit Healy to fill the
OOC position. Notably, this reversal occurred during a short period of time with no
apparent change in circumstances between the time the OOC HCCA was first created
and its premature termination 18 days later. At best, prematurely removing Healy
from the OOC was a departure from institutional best practices. At worst, it was a
deliberate attempt to prevent Healy from gaining the minimum experience required for
the permanent position.
When all the above-described indicia of unlawful intent are viewed in their
totality, Respondent’s treatment of Charging Party as an applicant for promotion
evidences a desire to seek out and, if necessary, manufacture reasons to reject
Healy’s application for promotion, rather than to consider his application on the basis
of merit alone. Accordingly, I find that Charging Party has established, by a
preponderance of the evidence, that CCHCS’s decision not to promote Healy to the
permanent HCCA position was, at least in part, unlawfully motivated by anti-union
animus. Accordingly, the burden shifts now to the employer to establish that it would
have refused to promote Healy even if he had not engaged in protected activity.
II. 	Defenses
Once a party pleads a general theory of a defense, PERB employs a flexible
approach to determining whether the evidence presented at hearing supports the
parties’ claims. (City of Santa Monica (2020) PERB Decision No. 2635a-M.)
Respondent argues that Healy failed to establish the prima facie elements of his case
because he failed to establish that all the members of the interview panel were aware

45
of his protected activity. Respondent does not explicitly raise an affirmative “but for”
defense. Nevertheless, I address both theories below.
A. Subordinate Bias Liability
Liability may attach to a decision by a supervisor who unwittingly relies upon
biased information presented by his or her subordinates. (Santa Clara Valley Water
District (2013) PERB Decision No. 2349-M.) Under the so-called “subordinate bias
liability” theory, the unlawful motive of a supervisor or other lower-level official may be
imputed to the decisionmaker responsible for authorizing an adverse action against
the Charging Party when: (1) the lower-level official’s recommendation, evaluation, or
report was motivated by the employee’s protected conduct; (2) the lower level official
intended for his or her conduct to result in an adverse action; and (3) the lower level
official’s conduct was a motivating factor or proximate cause of the decision to take
adverse action against the employee. Even where the decision maker’s actions are
entirely free of animus, the employer will nonetheless be held liable when the decision
was influenced by the unlawful animus of the lower-level official. (Santa Clara Valley
Water District, supra, PERB Decision No. 2349-M.)
Subordinate bias liability is typically raised by a charging party in order to
establish the employer’s liability in its prima facie case where a lower-level manager or
supervisor influences a higher-level manager to take the adverse action. Respondent
argues here that the animus of one agent of the employer (McKinney) should not be
imputed to another agent of the employer (the interview panel), citing Sacramento City
Unified School District (1985) PERB Decision No. 492.

46
In Sacramento City Unified School District, supra, PERB Decision No. 492, an
employee alleged that he was given a failing score on a promotional exam in
retaliation for filing grievances. There, the district’s Director of Maintenance was found
to have expressed anti-union sentiments to and about an employee after the
employee filed several grievances. When the employee applied for a promotion, a
panel of three supervisors, all subordinates of the director, ranked the employee
sixteenth out of thirty-seven applicants based on his oral interview. Only the top five
candidates were deemed eligible for the position.
Applying the Novato discrimination standard, the ALJ in Sacramento City
Unified School District, supra, PERB Decision No. 492, found no reason to impute the
director’s anti-union animus to the interview panel. The ALJ found that the employee
had engaged in protected conduct, the director knew of it, and the director harbored
anti-union animus because of it. However, a missing key element from the
employee’s case was any proof that the interview panelists had knowledge of the
employee’s protected conduct. Thus, their scores of the employee’s interview could
not have been influenced by conduct of which they were unaware. The ALJ also
found that the director did not influence the outcome of the interview scores or the
panelists’ impressions of the applicants.
This case is easily distinguishable from Sacramento City Unified School District,
supra, PERB Decision No. 492, because McKinney was on the interview panel. No
attribution from McKinney to other agents is necessary to find that at least one of the
agents responsible for the adverse action knew of Healy’s protected conduct. The

47
question really posed by Respondent’s argument is, to what extent did the anti-union
animus of some members of the panel infect the decisionmaking of the panel at large?
Both McKinney and Dr. Tootell were aware of Healy’s protected conduct and
both McKinney and Dr. Tootell had made statements denigrating Healy’s protected
conduct. But there is also circumstantial evidence to infer that Woodson was aware of
Dr. Tootell’s predisposition against Healy. Charging Party elicited testimony regarding
a phone conversation between Dr. Tootell and Woodson in early August. At the time,
Harris had just appointed Healy to the OOC HCCA position, and Dr. Tootell was
contemplating her resignation because of Harris’s decision. Even assuming the
conversation between Woodson and Dr. Tootell focused on Dr. Tootell’s frustration
with Harris’s decision-making process rather than his specific choice of Healy for the
OOC HCCA, it does not stretch credulity to conclude that Dr. Tootell emphasized to
Woodson how important the choice of HCCA was to her. The decision was so
important, in fact, that Dr. Tootell was contemplating quitting rather than working with
Harris’s choice of HCCA. It is easy to conclude that, knowing how important this
position was to Dr. Tootell, Woodson would support Dr. Tootell’s choice of applicant to
avoid a similar conflict. Indeed, the same can be said of Harris’s rationale for
supporting the panel’s ultimate decision despite believing that Healy was qualified and
capable.
As noted above, Respondent has refused to divulge any information about the
civil service interview questions and the post-interview deliberations by the panelists
with regard to the applicants’ answers to those questions. Because of this, there is no
testimony from the panelists that can resolve the question of whether and to what

48
degree, anti-union animus infiltrated the panel’s decisionmaking. Instead, the
employer, through Obando, states, trust me—there was no unlawful motive. PERB
may reject an employer’s self-serving declarations of lawful intent where they are
contradicted by the totality of persuasive circumstantial evidence. (Palo Verde Unified
School District, supra, PERB Decision No. 2337.) Given the multiple reliable indicia of
unlawful animus in this case, I cannot credit Obando’s vague and generalized
declarations of lawful intent, no matter how sincere his belief in their veracity.
Accordingly, I find that the panel’s decisionmaking process was tainted by the unlawful
animus of a few of its members, and the fact that Obando and possibly Woodson,
were ignorant of the anti-union animus of the other members of the panel does not
defeat a finding that the employer knew of Charging Party’s protected conduct prior to
taking the adverse action.
B. The “But For” Defense
When a charging party establishes each of the above-described Novato factors,
certain fact patterns allow a respondent the opportunity to prove, by a preponderance
of the evidence, that it would have taken the same action even absent protected
activity. This affirmative defense is most typically available when, even though the
charging party has established that protected activity was a substantial or motivating
cause of the adverse action, the evidence also reveals a non-discriminatory motivation
for the same decision. In such “mixed motive” or “dual motive” cases, the question
becomes whether the adverse action would not have occurred “but for” the protected
activity. (City & County of San Francisco (2020) PERB Decision No. 2712-M, citing
N.L.R.B. v. Transportation Management Corp. (1983) 462 U.S. 393, 395-402;

49
McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304;
Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721,
729-730; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 12-
13; Omnitrans (2010) PERB Decision No. 2121-M, pp. 9-10; Los Angeles County
Superior Court (2008) PERB Decision No. 1979-C, p. 22; Palo Verde Unified School
District (1988) PERB Decision No. 689, pp. 7-8; Novato, supra, PERB Decision No.
210, pp. 5-6; Wright Line, a Div. of Wright Line, Inc. (1980) 251 NLRB 1083, 1086-
1089.)
As a practical matter, for CCHCS to prevail, it must prove that it had an
alternative non-discriminatory reason for refusing to hire Healy as the permanent
HCCA and that it acted because of the alternative non-discriminatory reason.
(Anaheim Union High School District (2015) PERB Decision No. 2434.) When
analyzing the employer’s affirmative defense in a retaliation case, PERB weighs the
employer’s justifications for the adverse action against the evidence of the employer’s
retaliatory motive. The question is whether the employer’s justification was honestly
invoked and was in fact the cause of the adverse action. (Ibid.)
1. 	Compliance with the Civil Service Rules
Article VII, Section 1, subdivision (b) of the California Constitution states that
selection to the civil service shall be based on merit and that merit is to be ascertained
by competitive examination. The Dills Act “does not at all attempt to nullify the
constitutional principle that employment should be based upon merit; indeed, the
statute reaffirms that precept.” (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d
168, 202.) As further explained by the Supreme Court, the process for permanent civil

50
service appointments occurs in three phases. The first phase of the process involves
the administration of a competitive examination. The second phase is when the
appointing power reviews the candidates on the eligible list and selects the candidate
it finds best suited to the position it seeks to fill. The third phase requires the
appointing power to evaluate the selected candidate throughout a probationary period
to determine whether permanent appointment or promotion to the position is
warranted. (California State Personnel Bd. v. California State Employees’ Assn.,
Local 1000, SEIU, AFL-CIO (2005) 36 Cal.4 th 758, (“SPB v. CSEA”).) Only the first
two phases are relevant here.
The ultimate decision not to hire Healy was made by Harris, the hiring authority,
upon the panel’s recommendation. Harris’s exercise of authority represents the so-
called second phase of the civil service hiring process. In SPB v. CSEA, the Court
emphasized that the merit principle of “[A]rticle VII requires that appointment and
promotion decisions, not just preappointment eligibility determinations and other
screening measures, be based on merit.” (SPB v. CSEA, supra, 36 Cal.4th at 770.)
Echoing the sentiments in SPB v. CSEA, PERB has held that even when an employer
has a managerial, statutory, or contractual right to take an employment action, its
decision to act cannot be based on an unlawful motive, intent, or purpose. (County of
Santa Clara, supra, PERB Decision No. 2629-M, p. 13.) Thus, if the second phase of
the process, the hiring authority’s exercise of discretion, was tainted by discriminatory
intent, the decision violates the merit principle. Respondent’s strict compliance with
the first phase of civil service appointment is admirable, but it is no defense for the
employer’s failure to adhere to the merit principles in the second or third phase of

51
hiring. CCHCS must therefore establish that there was a non-discriminatory reason
for not recommending Healy, and that the non-discriminatory reason was the actual
reason Healy was not hired.
Notably, Respondent was unwilling to divulge several key details regarding the
hiring process, citing broadly California’s Civil Service Merit rules regarding
confidentiality. Respondent provided copies of heavily redacted score sheets for
Healy’s interview, showing none of the substantive considerations that went into place
for the panel’s ultimate conclusion, other than the numerical scores given to each
question. In doing so, Respondent withholds from PERB’s consideration the panel’s
actual rationale for choosing not to recommend Healy for promotion. Instead,
Respondent provides a plausible explanation for not recommending Healy, as
proffered by Obando.
According to Obando, the disparity in scores between the first-ranked candidate
and the other two could justify a decision by the employer not to consider the second
and third candidates at all. But this explanation doesn’t actually describe what
happened in this case. By its own admission, the employer did consider the second
candidate in this case, despite a disparity of twenty-three percentage points between
them. Thus, in making this assertion, it is clear that Obando is providing only one
possible explanation why the panel might choose not to check references on all three
candidates, and not the actual reason why the panel chose not to complete reference
checks on Healy.
In considering a Respondent’s affirmative defense, PERB’s inquiry is whether
the justification was honestly invoked and whether the employer’s proof establishes

52
that its justification was in fact the cause of the employer’s action. (Palo Verde Unified
School District, supra, PERB Decision No. 2337.) Respondent’s burden is not limited
by the extent of its statutory or common law duty to employees but is measured by the
extent and persuasiveness of the prima facie case, which a successful affirmative
defense must either meet or exceed. (Ibid.)
Respondent’s proffered justification fails to persuade because the facts
presented at hearing suggest that the panel was moving forward with a
recommendation of the second-ranked candidate after the first-ranked candidate
withdrew from consideration. The two remaining candidates scored within six
percentage points of each other. Of these two, it is undisputed that the second-ranked
candidate had never performed the job, while Healy had already demonstrated
proficiency in the job. Viewed this way, the allegedly vast disparity in scores shrinks
considerably.
Further doubt is cast on Respondent’s proffered justification because it is clear
that the second-ranked candidate never assumed the position. Thus, the choice, to
the extent there was one, was between Healy and a vacancy. Respondent clearly
preferred to leave this critical position vacant rather than hire Healy, who had been
successfully performing the job, and who was deemed qualified for the permanent
position. Given the multiple indicia of Respondent’s discriminatory intent, I cannot
credit its proffered non-discriminatory explanation for the failure to recommend Healy
for the permanent HCCA position over the weight of evidence to the contrary. The
preponderance of the evidence in this case weighs in favor of the Charging Party and
a finding that the adverse action was motivated by unlawful anti-union animus.

53
Based on the discussion above, I find that Respondent failed and refused to
recommend Healy for promotion to the HCCA position for reasons that include his
history of engaging in protected activities. This conduct violates Government Code,
section 3519, subdivision (a).
REMEDY
A properly designed remedial order seeks a restoration of the situation as
nearly as possible to that which would have obtained but for the unfair labor practice.
(Modesto City Schools (1983) PERB Decision No. 291.) To that end, PERB has been
granted broad remedial powers, even under the Dills Act, where such powers might
impact upon civil service positions. Dills Act section 3514.5, subdivision (c) states:
The board shall have the power to issue a decision and
order directing an offending party to cease and desist from
the unfair practice and to take such affirmative action,
including, but not limited to, the reinstatement of employees
with or without backpay, as will effectuate the policies of
this chapter.
Charging Party seeks backpay and appointment into the “first” available AGPA
position. Respondent argues that PERB cannot award the remedy requested because
to do so would run afoul of the merit principle in article VII of the California
Constitution. Respondent argues that PERB has no authority to award such a
remedy, citing to several cases “that reflect how stringently the merit principle is
applied.” For example, Hastings v. Department of Corrections (2003) 110 Cal.App.4th
963 (Hastings), stands for the principle that an employee is not entitled as an
accommodation to reassignment to a position in a different civil service classification
without complying with the competitive examination process of the civil service laws.
Noce v. Department of Finance (1941) 45 Cal.App.2d 5 (Noce), is cited for the rule

54
that an employee may not be automatically transferred from one classification to
another without an exam, where the classes have different training, qualifications and
duties. Kidd v. State (1998) 62 Cal.App.4th 386, is cited for the rule that no other
branch or agency of government may manipulate the merit principle to serve ends
inconsistent with Article VII of the California Constitution. Finally, Respondent argues
that a remedy ordering CCHCS to appoint Healy to a vacant position would be akin to
PERB “assuming the managerial responsibility” of making personnel decisions on
Respondent’s behalf, citing Georgia Power Company and Bobby Lewallen (2004) 341
NLRB 576.
PERB’s jurisdiction is not generally in conflict with the merit principles in the
California Constitution. (Pacific Legal Foundation v. Brown, supra, 29 Cal.3d 168.)
The purpose of the civil service system is to ensure that appointments and promotions
are made solely on the basis of merit. (Id. at pp. 183-184.) One purpose of the Dills
Act is to ensure that employment decisions are not made on the basis of an
employee’s participation in, or abstention from, the activities of an employee
organization. (Gov. Code, §3512, et seq.)
My order below, instructing CCHCS to offer Healy the next available
SSA/AGPA position at San Quentin does not run afoul of the merit principles in Article
VII of the California Constitution. First, it is undisputed that Healy sought and was
denied a promotion to a position for which he was qualified. Because Healy had
complied with the civil service rules regarding promotion to the position from which he
was discriminatorily denied, requiring CCHCS to offer Healy a promotion to a position
for which he was deemed qualified does not violate the principles in Hastings or Noce.

55
Second, as noted above, PERB’s purpose of preventing the State from using union
dis/affiliation as a substitute for merit in hiring decisions is not in conflict with
California’s merit principles, and in fact serves those principles. Indeed, “disciplinary
actions taken in violation of [the Dills Act] would transgress the merit principle as
well….” (Pacific Legal Foundation v. Brown, supra, 29 Cal.3d 168, 198.) Thus, the
order does not run afoul of the principle stated in Kidd v. State, supra, 62 Cal.App.4th
386.
The concerns raised in Georgia Power Company and Bobby Lewallen, supra,
341 NLRB 576 are not present here. There, the employee was denied a promotion
that would have elevated the employee to a management position. It was this
intrusion into the employer’s decision-making ranks that gave the NLRB pause. Under
those circumstances, the NLRB determined that the employee should be permitted to
compete for the position without discrimination, but that it should not exercise its
authority to appoint the employee to the employer’s management team. Here,
ordering the employer to appoint Healy from a non-supervisory Office Technician to a
non-supervisory SSA/AGPA, does not raise any similar concerns of “assuming the
employer’s managerial authority,” because in doing so, PERB would not be ordering
Healy to join the decision-making ranks of Respondent’s inner circle.
In State of California (Department of Corrections) (2001) PERB Decision No.
1435-S, after finding that the State had denied a promotion to a union steward in
retaliation for his protected activity, the ALJ ordered back pay and appointment to a
promotional position, as desired. The ALJ found that “[i]t would not effectuate the
purpose of the Act to invalidate the promotion of the person who currently fills the

56
[promotional position sought] and place [the union steward] in that position,” however.
Instead of displacing the incumbent in the specific position that the union steward was
denied, the ALJ determined that “[i]t would effectuate the purpose of the Act to …
order that [the union steward] be offered the next available [promotional] position in
northern California,” which represented a geographic region deemed “acceptable” to
the union steward. (State of California (Department of Corrections), supra, PERB
Decision No. 1435-S, pp. 48-49.) This, the ALJ found, would restore the union
steward to the desired position he would be in but for the unlawful conduct, to the
extent possible. (Id. at p. 49.) A similar remedy was ordered in Kidd v. State, supra,
62 Cal.App.4th 386, where the incumbent in the position from which the charging party
was discriminatorily denied, was not a party and did not cause the employer’s unlawful
employment practice. The circumstances of this case weigh in favor of a similar
remedial order.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire
record in the case, it is found that STATE OF CALIFORNIA, (CORRECTIONAL
HEALTH CARE SERVICES), violated the Dills Act, Government Code section 3519,
subdivision (a), by refusing to promote Kevin M. Healy to the Health Care Compliance
Analyst position at San Quentin because he engaged in activity that is protected by
the Dills Act, Government Code, section 3515.
Pursuant to section 3514.5, subdivision (c) of the Government Code, it hereby
is ORDERED that the STATE OF CALIFORNIA, (CORRECTIONAL HEALTH CARE
SERVICES), its governing board and its representatives shall:

57
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against employees for engaging in protected conduct.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Offer Kevin M. Healy the next available SSA/AGPA position at
San Quentin.
2. 	Reimburse Kevin M. Healy for the difference between the salary
earned as an Office Technician and the salary he would have earned as the Health
Care Coordinator Analyst from September 29, 2017, the date Healy was denied the
position, until such time as Respondent has complied with paragraph B.1., above, of
this Proposed Order.
3. 	Within 10 workdays of the service of a final decision in this matter,
post copies of the Notice attached hereto as an Appendix at all work locations where
notices to employees represented by SEIU Local 1000 in bargaining units 1, 3, 4, 15,
17, and 20, are customarily posted. The Notice must be signed by an authorized
agent of the STATE OF CALIFORNIA, (CORRECTIONAL HEALTH CARE
SERVICES), indicating that it will comply with the terms of this Order. Such posting
shall be maintained for a period of 30 consecutive workdays. The Notice shall also be
posted by electronic message, intranet, internet site, and other electronic means
customarily used by the STATE OF CALIFORNIA, (CORRECTIONAL HEALTH CARE
SERVICES), to communicate with employees represented by SEIU Local 1000 in
bargaining units 1, 3, 4, 15, 17, and 20. Reasonable steps shall be taken to ensure

58
that the Notice is not reduced in size, altered, defaced or covered with any other
material.
4. 	Written notification of the actions taken to comply with this Order
shall be made to the General Counsel of the Public Employment Relations Board
(PERB or Board), or the General Counsel’s designee. Respondent shall provide
reports, in writing, as directed by the General Counsel or his/her designee. All reports
regarding compliance with this Order shall be concurrently served on KEVIN M.
HEALY.
RIGHT TO APPEAL
Pursuant to California Code of Regulations, title 8, section 32305, this
Proposed Decision and Order shall become final unless a party files a statement of
exceptions with the Public Employment Relations Board (PERB or Board) itself within
20 days of service of this Decision. The Board’s address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 322-8231
Facsimile: (916) 327-9425
E-File: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, the statement of exceptions should
identify by page citation or exhibit number the portions of the record, if any, relied
upon for such exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered “filed” when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov.
Code, § 11020, subd. (a).) A document is also considered “filed” when received by

59
facsimile transmission before the close of business together with a Facsimile
Transmission Cover Sheet which meets the requirements of California Code of
Regulations, title 8, section 32135, subdivision (d), provided the filing party also places
the original, together with the required number of copies and proof of service, in the
U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c), and (d); see also Cal.
Code Regs., tit. 8, §§ 32090 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,
§§ 32300, 32305, 32140, and 32135, subd. (c).)

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-290-S, Kevin M. Healy v.
State of California, in which all parties had the right to participate, it has been found
that the State of California (Correctional Health Care Services) violated the Ralph C.
Dills Act, Government Code section 3512 et seq. by refusing to promote Kevin M.
Healy to the Health Care Compliance Analyst position at San Quentin because he
engaged in activity that is protected by the Dills Act, Government Code section 3515.
As a result of this conduct, we have been ordered to post this Notice and,
absent mutual agreement between the parties to alter the remedial order, we will:
A. 	CEASE AND DESIST FROM:
Retaliating against Healy for engaging in protected conduct.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1. 	No later than 45 days after this decision is no longer subject to
appeal, reclassify Healy into the AGPA classification retroactively to September 29,
2017 and provide him with pay and benefits associated with that reclassification, both
retroactively to that date and prospectively. Interest at a rate of 7 percent per annum
shall accrue on the backpay portion of this award.
2. 	Beginning no later than 45 days after this decision is no longer
subject to appeal and on an ongoing basis thereafter, assign Healy appropriate duties
at San Quentin until the San Quentin Health Care Compliance Analyst position next
becomes vacant, and at that point place Healy in the position, if he remains an active
State of California employee at that time.
Dated: _____________________ 	STATE OF CALIFORNIA (CORRECTIONAL
HEALTH CARE SERVICES)
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.