San Mateo County Community College District (PERB 1980E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JOHNNY COLLINS,
Charging Party,	Charging Party,
V.
SAN MATEO COUNTY COMMUNITY
COLLEGE DISTRICT,
Respondent.
Case No. SF-CE-2701-E
PERB Decision No. 	1980
October 17, 2008
Appearance: 	Johnny Collins, on his own behalf
Before Neuwald, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
DOWD IN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Johnny Collins (Collins) of a Board agent's dismissal of
his unfair practice charge. 	The charge alleged that the San Mateo County Community College
District (District) violated the Educational Employment Relations Act (BERA) 1 by retaliating
against him for engaging in protected activity. 	The Board agent dismissed the charge for
failure to state a prima facie case of retaliation.
The Board has reviewed the entire record in this case, including but not limited to, the
original and amended unfair practice charge, the District's position statement, the Board
agent's warning and dismissal letters, and Collins' appeal. Based on this review, the Board
affirms the dismissal of the charge for the reasons discussed below.
1EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all
statutory references are to the Government Code.
Respondent.

BACKGROUND
The District hired Collins as a security officer at the College
of
San Mateo in 2000. In
or about October 2006, "coworkers and supervisors began over scrutinizing [Collins'] work
including monitoring [Collins'] movements and whereabouts." Collins complained to the
District about the scrutiny in the Spring
of
2007.
On May
9,
2007, Chief
of
Security John Wells (Wells) and two other security officers
received a call that a student was being disruptive in a building on campus. 	On their way to
the building, the officers passed Collins, who was having a conversation with a woman. 	Wells
told the other officers, "Leave him here. He's having a conversation." Collins asked one
of
the
officers
if
he would write Collins a letter "describing how Chief Wells left [him] out
of
the
operation." The officer never wrote the letter and instead told Wells about Collins' request.
On August
8,
2007, as Collins was in the security office preparing to leave for the day,
Wells said to Collins, "I don't know what's going on with you." Wells told Collins that he was
to meet with the Vice Chancellor
of
Human Resources, Harry Joel (Joel), the next morning.
When Collins asked why he was meeting with Joel, Wells responded that he had concerns
about Collins' behavior.
2
On August
9,
2007, Collins met with Joel. Joel told him Wells said he was a good
worker but had concerns about his well-being. 	Collins thanked Joel and Wells for their
concerns and began his shift for the day.
On August 21, 2007, Jim Clifford, Chair of the Social Science Department, and Neil
Mccallum (McCallum), the Dean of Social Science, approached Wells about Collins teaching
a Psychology 100 class between the hours of 1:45 p.m. and 3:00 p.m. on Tuesdays and
Thursdays. 	(Collins' shift as a security officer was from 6:30 a.m. to 2:30 p.m. on those same
2

days.) Wells said the security department would accommodate Collins' schedule so he could
teach the class.
On September 10, 2007, Wells e-mailed McCallum asking
if
Collins taught any
of
the
three Psychology 100 sections during August 2007 and,
if
so, whether Collins was paid for
those classes. McCallum responded that Collins had been teaching the course since the
beginning
of
the semester and was on the adjunct payroll. He also confirmed that Wells had
agreed to accommodate Collins' schedule for the class.
On September 17, 2007, Collins met with Wells and Virgil Stanford (Stanford), dean
of
the business division. 	Stanford told them that due to a change in District policy "no employee
can be working two shifts at the same time."
On September 18, 2007, another security officer called Collins to a meeting with Wells.
When Collins arrived, the officer told him he did not know what the meeting was about. 	Wells
then entered the room, "slammed his note pad on the table and stated Johnny
if
you continue
this behavior this will lead up to Destruction." Collins interpreted this as a threat
of
violence.
On September 24, 2007, Collins met with Wells to discuss ways in which Collins could
improve his job performance. Union Representative Chuck LaMere (LaMere
)2
was present at
Collins' request. After Wells expressed his concerns about Collins' performance, LaMere
confirmed with Wells that Collins would not be subject to discipline
if
he complied with
Wells' instructions on how to improve his performance. Wells stated that Collins would not be
disciplined based on anything discussed at the meeting.
3
On October 9, 2007, Wells placed a performance evaluation in Collins' mailbox with a
note to meet with him on Monday to discuss. 	The evaluation contained no "suggestions on
how to utilize strengths and how to overcome weaknesses." Evaluations were typically given
TThe charge did not state which union LaMere represented.
3

on an employee's anniversary date
of
hire; Collins' anniversary date was April
1,
not
October
9.
	Collins called California School Employees Association (CSEA) President Ulysses
Guadamuz (Guadamuz), who said the evaluation was not valid and to ask for union
representation
"if
the discussion gets out
of
hand."
On October 16, 2007, McCallum received a call from Stanford's administrative
assistant stating that Collins would not be teaching that day. 	When Collins learned that he was
not scheduled to teach that day, he phoned Stanford to find out why. 	Stanford said "there was
a fire on campus that day inside a classroom on campus and he was concern[ ed] because I was
not on duty."
4
On February 5, 2008, Collins again complained to the District about the scrutiny of his	On February 5, 2008, Collins again complained
to
the District about the scrutiny
of
his
work and	work and whereabouts. The next day, February 6, 2008, Wells placed Collins on immediate	whereabouts. The next day, February
6,
2008, Wells placed Collins on immediate
paid administrative leave. 	When Collins asked why he	paid administrative leave. When Collins asked why he was being placed on leave, Wells	was being placed on leave, Wells
"referred back to the August	"referred back to the August 2007 events and stated, 'I sent you to Harry Joel, and with my	2007 events and stated, 'I sent you to Harry Joel, and with my
forty years
of
experience, there is something wrong	forty years of experience, there is something wrong with you."" When Collins said that he	with you."' When Collins said that he
would go speak with Joel, Wells told Collins that if Collins did so he would call the San Mateo	would go speak with Joel, Wells told Collins that
if
Collins did so he would call the San Mateo
Police Department and have him removed from campus. Collins interpreted this statement as a	Police Department and have him removed from campus. Collins interpreted this statement as a
threat. Later that day,	threat. Later that day, Joel notified several District administrators via e-mail that Collins had	Joel notified several District administrators via e-mail that Collins had
been placed on administrative leave	been placed on administrative leave "[because of a perceived psychological imbalance and	"[b]ecause
of
a perceived psychological imbalance and
odd behaviors." The e-mail indicated that Collins would be sent to a fitness for duty	odd behaviors." The e-mail indicated that Collins would be sent to a fitness for duty
evaluation.	evaluation.
On February 7, 2008, Collins met with John Bradshaw (Bradshaw), the psychologist	On February 7, 2008, Collins met with John Bradshaw (Bradshaw), the psychologist
ethics coordinator for the San	ethics coordinator for the San Mateo County Psychological Association. Bradshaw told	Mateo County Psychological Association. Bradshaw told
Collins that his	Collins that his supervisor sent him there to determine if he was fit for duty. Bradshaw gave	supervisor sent him there to determine if he was fit for duty. Bradshaw gave
4

Collins written tests and interviews. Collins was later cleared to return to work on
February 23.
Also on February 7, 2008, Kevin Henson (Henson), dean
of
Social Science Creative
Arts, informed students in Collins' Psychology 100 class that class was cancelled for that day.
Henson did not notify Collins
of
the cancellation.
On February 11, 2008, Henson e-mailed Collins to get a syllabus or lesson plan for his
class because another teacher was going to cover his classes for the week. On February 21,
American Federation
of
Teachers (AFT) Grievance Officer John Kirk (Kirk) e-mailed Henson
regarding the courses assigned to Collins. Henson responded that Collins' Psychology 100
class was cancelled for the semester on February 12 due to insufficient enrollment.	class was cancelled for the semester on February
12
due to insufficient emollment.
On March 20, 2008, the District's payroll department informed Collins that he had been
overpaid as a result
of
his class being cancelled. The overpayment was $634.83 and would be
deducted from Collins' paycheck in two installments.
On March 31, 2008, Kirk e-mailed Joel and asked
if
Collins was on administrative
leave from both his security officer and faculty positions. Joel responded that Collins was on
leave from his security officer position only. Joel also stated Collins would have been placed
on leave from his teaching assignment had his class not been cancelled.
On April 7, 2008, Collins e-mailed Guadamuz seeking guidance because he felt he was
being treated unfairly by the District. He wrote that he needed "a response ASAP due to what
is at stake here."
5	5

Unfair Practice Charge and Dismissal
On April 28, 2008, Collins filed his unfair practice charge. The charge alleged that the
District violated EERA by retaliating against him for engaging in protected activity. 3
District violated EERA by retaliating against him for engaging in protected activity. TThe
original charge alleged only the facts related to the placement
of
Collins on administrative
leave on February 6, 2008 and his fitness for duty evaluation the following day. 	On
June 5, 2008, Collins amended the charge to include the factual allegations from the other
dates as set forth above.
The Board agent dismissed the charge on June 18, 2008. The Board agent found the
charge failed to allege any protected activity by Collins within the six months prior to the filing
of
the charge. The Board agent noted that Collins' use
of
a union representative at the
September 24, 2007 meeting with Wells could be considered protected activity but occurred
seven months before the charge was filed. 	The Board agent then found that, even
if
Collins
engaged in protected activity, the charge failed to allege facts showing a causal nexus between
the protected activity and the alleged retaliation.
Collins' Appeal
Collins timely filed an appeal from the dismissal on July 10, 2008. The appeal states
that Collins appeals the Board agent's decision to dismiss his "complaint
of
Discrimination/
Retaliation." Attached to the appeal is a letter alleging additional facts, all
of
which concern
conduct between March 10 and June 24, 2008. The letter also raises a new allegation that the
District and CSEA "had knowledge
of
the exercise
of
those rights and refused to share them
with me."
6
'TThe charge also alleged that the District discriminated against Collins based on his
race in violation of Title VII of the Civil Rights Act of 1964. The Board agent dismissed this
allegation on the ground that PERB has no jurisdiction over claims of race discrimination.
Collins did not challenge the dismissal of this allegation on appeal and therefore we do not
address it further.

DISCUSSION
1.
	New Allegation and Supporting Evidence on Appeal
Collins' appeal contains a new allegation, that the District and CSEA failed to inform
Collins
of
his rights,
as
well as further supporting evidence not presented to the Board agent.
"Unless good cause is shown, a charging party may not present on appeal new charge
allegations or new supporting evidence." (PERB Reg. 32635(b).)4 The Board has found good
cause when "the information provided could not have been obtained through reasonable
diligence prior to the Board agent's dismissal
of
the charge." (Sacramento City Teachers
Association (Ferreira) (2002) PERB Decision No. 1503.)
The dates for most
of
the new supporting evidence indicate that Collins knew
of
this
information before his charge was dismissed. For this reason, there is no good cause to
consider these newly alleged facts on appeal. Nor does the Board have good cause to consider
the alleged facts that occurred after the dismissal on June 18, 2008, because allegations based
on those facts may only be brought in a new unfair practice charge. (City
of
Long Beach
(2008) PERB Decision No. 1977-M; Sacramento City Unified School District (1992) PERB
Decision No. 952.) Finally, there is no good cause to consider the new allegation
of
failure to
inform Collins
of
his rights because it is based on facts that occurred before dismissal
of
the
charge and thus could have been included in an amended charge. (See American Federation
of
Teachers, Local 1521 (Paige) (2005) PERB Decision No. 1769 [no good cause when charging
party could have presented new allegation in charge or amended charge].)
2. 	Retaliation	2.
To establish a prima facie case of retaliation in violation of EERA section 3543.5(a),
Collins must show that: ( 1) he exercised rights under EERA; (2) the District had knowledge of
4PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
7	7

the exercise of those rights; and (3) the District imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained, or coerced
Collins because of the exercise of those rights. iliovato Unified School District (1982) PERB
Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision No. 89.)	Decision No. 210 iliovato); Carlsbad Unified School District (1979) PERB Decision No. 89.)
Protected Activity
The charge alleges that Collins used union representation in two separate disputes with
the District. First, Collins brought Union Representative LaMere into the September 24, 2007
meeting with Wells over Collins' performance issues. Second, AFT Grievance Officer Kirk
engaged in e-mail communications with Henson and Joel about the cancellation of Collins'
psychology class. Representation by a union in a work-related dispute is a protected activity.
(Los Angeles Unified School District (1992) PERB Decision No. 957.) Thus, the charge
sufficiently alleged that Collins engaged in activity protected by EERA.
As for the District's knowledge of Collins' protected activity, the charge establishesAs for the District's knowledge of Collins' protected activity, the charge establishes
that Wells knew about Collins' union representation in the September 24, 2007 meeting but	that Wells knew about Collins' union representation in the September 24, 2007 meeting but
does not indicate that anyone else in the District knew about it. The charge also establishes	does not indicate that anyone else in the District knew about it. The charge also establishes
that both Henson and Joel had knowledge of Collins' union representation regarding the	that both Henson and Joel had knowledge of Collins' union representation regarding the
cancellation of his psychology class. Thus, the District had knowledge of Collins' protected	cancellation of his psychology class. Thus, the District had knowledge of Collins' protected
activity.	activity. 5
Adverse Action
Evidence of adverse action is also required to support a claim of retaliation. (Palo Verde	Evidence of adverse action is also required to support a claim of retaliation. (Palo Verde
Unified School District (1988) PERB Decision No. 689 (Palo Verde).) In determining whether	Unified School District (1988) PERB Decision No. 689 (Palo Verde).) In determining whether
5
The charge also alleged that Collins contacted CSEA President Guadamuz for help on	The charge also alleged that Collins contacted CSEA President Guadamuz for help on
these	these issues but there is nothing in the charge to indicate the District was aware of this	issues but there is nothing in the charge to indicate the District was aware of this
communication.	communication.
8	8

9
such evidence
is
established, the Board uses an objective test and will not rely upon the
subjective reactions
of
the employee. (Id.) In a later decision, the Board further explained that:
The test which must be satisfied is not whether the employee found
the employer's action
to
be adverse, but whether a reasonable
person under the same circumstances would consider the action to
have an adverse impact on the employee's employment. 	[Newark
Unified School District (1991) PERB Decision No. 864; emphasis
added; footnote omitted.]
EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing
of
the charge." The limitations period begins to run once the charging party knows, or
should have known,
of
the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) A charging party bears the burden
of
demonstrating
that	that the charge is timely filed. (Tehachapi Unified School District (1993) PERB Decision	the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision
No. 1024; State
of
California (Department oflnsurance) (1997) PERB Decision No. 1197-S.)
To be timely, a retaliation charge must allege an adverse action that occurred within six
months prior to the filing
of
the charge.
Collins filed his charge on April 28, 2008. Thus, any adverse action by the District
prior to October 28, 2007, cannot be used to establish a prima facie case. The charge alleged
three adverse actions that occurred after October 28, 2007. Placing Collins on paid
administrative leave on February 6, 2008, and sending him to a fitness for duty examination on
February 7 constituted adverse action. 	(Carmichael Recreation and Park District (2008) PERB
Decision No. 1953-M.) Further, canceling Collins' psychology class for the semester on
February 12 was adverse because it caused him to lose pay. 	(See Palo Verde [test is whether
employee suffers actual harm].) Thus, the charge sufficiently alleged that the District took
adverse action against Collins.
9

Nexus
To establish a prima facie case
of
retaliation, Collins must demonstrate a "nexus"
between his protected activity and the District's adverse actions. In other words, Collins must
show that the District acted with discriminatory intent. Because direct evidence
of
discriminatory intent
is
rarely possible, the Board has held that "unlawful motive can be
established by circumstantial evidence and inferred from the record as a whole." (Novato.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct
is
an important factor (North Sacramento School District (1982)
PERB Decision No. 264 (North Sacramento School District)), it does not, without more,
demonstrate the necessary connection or "nexus" between the adverse action and the protected
conduct. (Moreland Elementary School District (1982) PERB Decision No. 227.) Facts
establishing one or more
of
the following additional factors must also be present: (1) the
employer's disparate treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); (2) the employer's departure from
established procedures and standards when dealing with the employee (Santa Clara Unified
School District (1979) PERB Decision No. 104); (3) the employer's inconsistent or
contradictory justifications for its actions (State
of
California (Department
of
Parks and
Recreation) (1983) PERB Decision No. 328-S); (4) the employer's cursory investigation
of
the
employee's misconduct; (5) the employer's failure to offer the employee justification at the
time it took action or the offering
of
exaggerated, vague, or ambiguous reasons; (6) employer
animosity towards union activists (Cupertino Union Elementary School District (1986) PERB
Decision No. 572); or (7) any other facts that might demonstrate the employer's unlawful
motive. 	iliovato; North Sacramento School District.)
10

11
As discussed, there is no indication in the charge that anybody at the District other than
Wells was aware
of
Collins' union representation in the September 24, 2007 meeting between
Wells and Collins. The only adverse action in which	Wells and Collins. The only adverse action in which Wells played a part was the placing of	Wells played a part was the placing
of
Collins on administrative leave on February
6,
2008. It
is
arguable whether the four and one
half month lapse between the meeting and the leave is sufficient to establish the timing factor.
(See Los Angeles Unified School District (1998) PERB Decision No. 1300 [lapse
of
five
months insufficient to establish timing factor]; Jurupa Community Services District (2007)
PERB Decision No. 1920-M [two months sufficient to establish timing].)
Nonetheless, even
if
the timing supports an inference
of
retaliation, the charge failed to
establish any
of
the other factors that would demonstrate a nexus between Collins' union
representation and his administrative leave and fitness for duty examination. The charge
alleged no facts showing that Collins was treated differently from other similarly situated
employees or that the District in any way departed from established procedures. 	The charge
did not allege facts showing that the District gave Collins inconsistent, contradictory,
exaggerated, vague, or ambiguous reasons for placing him on administrative leave or sending
him to a fitness for duty examination. Further, the charge did not contain any evidence that the
District harbored animus toward the union that represented Collins in his meeting with Wells.
Nor did the charge establish a nexus between Collins' representation by AFT and the
cancellation
of
his Psychology 100 class. The District canceled the class on February 12,
2008, but AFT did not act on behalf
of
Collins until February 21, when Kirk e-mailed Henson
about the classes assigned to Collins. The timing factor cannot be established when the
protected activity occurred after the adverse action. (Berkeley Unified School District (2004)
PERB Decision No. 1702.) Moreover, the charge did not allege facts establishing that the
District deviated from established procedures or treated Collins differently than other teachers
1 1

whose classes had been cancelled; that the District's reason for the cancellation, insufficient
enrollment, was inconsistent, exaggerated or vague; or that the District harbored animus
toward AFT. For these reasons, we find that the Board agent properly dismissed the retaliation
charge.	charge.
ORDER
The unfair practice charge in Case No. SF-CE-2701-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Neuwald and Member McKeag joined in this Decision.
12	12