Cabrillo Community College District (PERB 2453E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ERIC M. MOBERG,
Charging Party,
v.
CABRILLO COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. SF-CE-2994-E
PERB Decision No. 2453
September 17, 2015
Appearances: Eric M. Moberg, in propria persona; Law Offices of Vincent P. Hurley by
Vincent P. Hurley, Attorney, for Cabrillo Community College District.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Eric M. Moberg (Moberg) from the dismissal by PERB's Office
of the General Counsel of his unfair practice charge filed on February 1, 2013, against the
Cabrillo Community College District (District). Moberg's charge, as amended, alleges that the
District violated the Educational Employment Relations Act (EERA) 1 by retaliating against him
for his protected conduct and interfering with his EERA protected rights when on November 6,
2012, it placed him on paid leave, directed that while on paid leave he should not attend his
assigned classes or perform further work, and withdrew his tentative teaching assignment for the
Spring 2013 semester.
We have reviewed Moberg's charge and amended charges, the District's responses, the
warning and dismissal letters, Moberg's appeal, the District's response and Moberg's July 23,
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

2015, request to submit new evid.ence. Based on that review, we affirm dismissal ofMoberg's
interference claim, and reverse the dismissal of Moberg's retaliation claim, and we remand the
case to the Office of the General Counsel for the issuance of a complaint in accordance with our
discussion below.
PROCEDURAL HISTORY
On February 1, 2013, Moberg filed his initial unfair practice charge with PERB alleging
that the District violated BERA section 3543.5 by retaliating against him for exercising BERA
protected rights. On March 6, 2013, the District filed its initial position statement. On
August 30, 2013, Moberg filed his first amended charge. On October 7, 2013, the District
re-filed its initial position statement; submitted an objection to Mo berg's first amended charge
and also submitted a declaration by its Attorney, Vincent P. Hurley (Hurley), in support of its
position statement and objection. On October 9, 2013, Moberg filed a response to the District's
October 7, 2013, filings.
On October 24, 2014, Moberg filed a second amended charge. On November 17, 2014,
the District filed its second position statement. On December 9, 2014, the Office of the General
Counsel issued a warning letter notifying Moberg that his charge did not state a prima facie case.
On January 15, 2015, Moberg filed a third amended charge. On February 6, 2015, the District
filed its third position statement together with a declaration by District Director of Human
Resources Loree McCawley (McCawley). On February 11, 2015, Moberg filed objections to the
District's latest position statement and McCawley's declaration. On May 19, 2015, the Office of
the General Counsel dismissed Moberg' s charge.
On June 5, 2015, Moberg filed an appeal of the dismissal of his charge. On June 25,
2015, the District filed its response. On June 30, 2015, PERB's Appeals Assistant notified the
2

parties that the filings were complete and the case had been placed on the Board's docket. On
July 23, 2015, Moberg submitted new evidence under PERB Regulation 32635(6). ·
FACTUAL BACKGROUND
Moberg was hired by the District as a part-time adjunct English instructor in January of
2012. Moberg was employed by the District for the Spring 2012 semester and part of the
Fall 2012 semester. As a part-time adjunct instructor Moberg was represented by the Cabrillo
College Federation of Teachers, Local 1493, AFT, AFL-CIO (CCFT), which maintained a
collective bargaining agreement with the District.
On November 4, 2012, in an e-mail addressed to various union and community college
employees including James Weckler (Weckler), division dean, at Cabrillo College, Moberg
wrote:
I understand that, here in California, Lozano Smith [a law firm] oi
Hartnell College has contacted some of my current and past
employers on behalf of their clients: Monterey Adult School and
Hartnell College. If you were contacted or are contacted in the
future, please ask for any statements .to be put in writing and
forward the statements to me. Also, please ask about the attached
police report, Petition for Writ of Mandate currently before the
Sixth Court of Appeal, and the Hartnell PERB charge I have filed
relating to racial discrimination against my students and retaliation
against me as a whistleblower.
Moberg also sent copies of this e-mail to several Lozano Smith attorneys. Moberg's e-mail
indicates that he attached copies of a "reply brief' and a document titled "Hartnell PERB."
However, these documents were not included with the e-mail Moberg provided to PERB in his
first amended charge and it is unclear whether the "police report" referred to in the e-mail was
attached since it does not appear as an attached document in the e-mail.2
2 A longer version of Moberg' s e-mail was submitted by the District's attorney in his
declaration and it includes an untitled document which appears to be a statement of facts for an
unfair practice charge against Hartnell Community College District (Hartnell). As noted by
3

By letter dated November 6, 2012, Weckler placed Moberg on paid leave, withdrew his
tentative assignment for the Spring 2013 semester and requested an interview with Moberg to
discuss issues the District claimed to have regarding Moberg' s academic credentials and
employment history. Weckler's letter informed Moberg that the District's attorney would be
present at the interview, which would be recorded. Weckler's letter further advised Moberg that
he had a right to representation at the interview either through his union, CCFT or through his
own attorney.
On November 7, 2012, according to Moberg' s charge, McCawley told CCFT
representative Maya Bendotoff that Cabrillo College administrators were concerned that Moberg
had a reputation for being "litigious" including filing PERB charges.3 Also on November 7,
2012, Moberg informed Wedder that he could not attend the interview on the date Weckler had
requested (November 14, 2012). A subsequent December 3, 2012, interview date was scheduled ·
and then cancelled by the District. Moberg was offered instead an opportunity to respond in
writing to the District's issues regarding his academic credentials and employment history. On
December 13, 2012, Kathleen Welch, the District's interim superintendent, notified Moberg that
she had determined he was not qualified to teach as an adjunct English instructor, and that he
would not be offered additional positions at Cabrillo College.
On December 30, 2012, Moberg filed a grievance over the withdrawal of his teaching
assignments. On January 31, 2013, the District denied Moberg's grievance.
On March 19, 2013, Hurley, counsel for the District in the instant unfair practice
proceedings, wrote to Moberg, cautioning, inter alia, that Moberg should "seriously consider the
the Office of the General Counsel, the "Hartnell PERB" document contains neither a case
number nor a copy of PERB's unfair practice charge form. 	(Warning Ltr., p. 2.)
3 McCawley's February 6, 2015, declaration specifically denied this allegation.
4

consequences of your actions if you continue to attack District officials rather than deal with
your qualifications to teach college English in California community colleges."
DISMISSAL
Retaliation/Discrimination
The Office of the General Counsel's warning and dismissal letters advised Moberg that in
order to demonstrate a prima facie case of retaliation or discrimination under EERA
section 3543.S(a), charging party must show that: (1) the employee exercised rights protected
under EERA; (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 the action because of the
exercise of those rights. (Novato Unified School District (1982) PERB Decision No. 210
(Novato).)
Protected Activity/Employer Knowledge
In both the warning and dismissal letters, the Office of the General Counsel determined
that Moberg engaged in protected activity by filing PERB charges against previous employers,
but that it was unclear whether representatives of Cabrillo College were aware that Moberg had
previously filed unfair practice charges with PERB. The Office of the General Counsel found
it significant that the document attached to Moberg's November 4, 2012, e-mail to several
union and Cabrillo College employees and identified as "Hartnell PERB" did not include
PERB's unfair practice charge form "nor was there a clear indication on the attachment itself
that it had been filed as a PERB charge." (Warning Ltr., p. 6.)
In dismissing the charge, the Office of the General Counsel also found it significant that
Weckler made reference to Moberg's employment with the Monterey Peninsula Unified
School District (MPUSD) in two separate communications with Moberg, but "[n]either the
November 6, 2012 letter nor the November 8 e-mail message says anything about a PERB
5

charge." (Dismissal Ltr., p. 3.) Therefore, the Office of the General Counsel determined that
Moberg had failed sufficiently to allege that the District had knowledge of his protected
activity.
Adverse Action
Both the warning and dismissal letters determined that the District's termination of
Moberg's employment was an adverse action.
Timing/Nexus
The Office of the General Counsel also determined there was a close temporal
proximity between Moberg's November 4, 2012, e-mail which mentioned the Hartnell unfair
practice charge and the District's November 6, 2012, adverse action of terminating his
employment. However, the Office of the General Counsel concluded that even assuming
arguendo, the District had knowledge of the protected activity, there was no other
circumstantial evidence showing that the District took the adverse action because of Moberg' s
protected activity.
The Office of the General Counsel rejected Moberg's contention that the District gave
insufficient or inconsistent reasons for its adverse action, noting that the District based its
decision on its doubts that Moberg met the minimum qualifications for his position and had not
accurately reported his employment experience. The dismissal letter noted:
These same questions were raised by Hartnell CCD, with respect
to Charging Party's employment there, and are described in
various documents submitted in connection with Case Number
SF-CE-2984-E.
(Warning Ltr., p. 7.) The Office of the General Counsel also rejected Moberg's contentions
that he was treated disparately from other employees; that the District departed from
established procedures; that the District offered vague or exaggerated justifications for its
actions; and that the District conducted a cursory investigation before taking adverse action.
6

Lastly, the Office of the General Counsel determined that neither McCawley's remark
that Moberg was "litigious," nor Hurley's March 19, 2013, letter to Moberg asking him to
"seriously consider the consequences of your actions if you continue to attack District
officials," demonstrated union animus or implicated rights protected under EERA.
Interference
The dismissal letter, which noted that Moberg did not allege an interference violation
until his third amended charge, advised Moberg that:
[I]n order to state a prima facie case of unlawful interference, the
charging party must establish that the respondent's conduct tends
to or does result in some harm to employee rights granted under
EERA.
(State of California (Department of Developmental Services) (1983) PERB Decision
No. 344-S.) The dismissal letter emphasized that the right alleged to be violated must be
provided by EERA.
The Office of the General Counsel discussed Moberg's allegation that the District
interfered with his EERA protected rights when an unnamed "director" from the District
informed an instructor who eventually was hired by the West Valley Mission Community
College District (WVMCCD)-another district where Moberg was working-that Moberg had
presented false credentials. Moberg' s allegation was based on an October 12-14, 2013, e-mail
exchange between Jeanette Richey (Richey), a newly-hired WVMCCD instructor, and
Leslie Saito-Liu (Saito-Liu) a WVMCCD instructor and chairperson of the English department
at WVMCCD. Richey initiated the e-mail exchange with Saito-Liu when Richey noticed
Moberg's name on a list of e-mail recipients and informed Saito-Liu that she had heard from a
"director" that Moberg had been dismissed from the District for presenting false credentials.
Richey did not purport in the e-mail to have any direct knowledge of the circumstances
surrounding Moberg' s employment.
7

Moberg's contentions appear to be that McCawley was the unnamed director who
informed Richey of the circumstances surrounding his dismissal, and that in addition to
violating his privacy, this information interfered with his employment relationship with
WVMCCD. The Office of the General Counsel determined that it was unclear how an e-mail
exchange between employees in a different community college district nearly one year after
Moberg's dismissal would interfere with EERA protected rights.
Thus, finding no prima facie case of retaliation or interference, the Office of the
General Counsel dismissed Moberg's charge.
DISCUSSION
We begin with the standard of review for a dismissal of an unfair practice charge by the
Office of the General Counsel and the elements of a prima facie case of retaliation or
discrimination and interference. We then consider Moberg's July 23, 2015, request to present
additional evidence.
We caution that our discussion treats charge allegations. We presume as we must that
the facts alleged by the charging party are true.4 We do not rely on the District's responses,
including any affirmative defenses, if they are contradicted by the charging party. We do so
because when assessing whether a charge dismissal is appropriate, we view a charging party's
allegations in the light most favorable to the charging party. At hearing, Moberg will bear the
significant burden of proving his allegations through persuasive, competent testimony and
authenticated documentary evidence.
4 At this stage of the proceedings, we assume as we must that the essential facts alleged
in the charge are true. (San Juan Unified School District (1977) EERB* Decision No. 12;
Trustees of the California State University (Sonoma) (2005) PERB Decision No. 1755. [*Prior
to January 1978, PERB was known as the Educational Employment Relations Board or
EERB.].)
8

Board Review of Dismissal
Because this case is an appeal from a dismissal and refusal to issue a complaint by the
· Office of the General Counsel, our inquiry at this stage is focused on the sufficiency of the
charging party's allegations. In addition, we may also consider information provided by the
respondent, but only when such information is submitted under oath, complements without
'
contradicting the facts alleged in the charge, and is not disputed by the charging party. (PERB
Reg. 32620(c); Service Employees International Union #790 (Adza) (2004) PERB Decision
No. 1632-M (Adza); Lake Tahoe Unified School District (1993) PERB Decision No. 994
(Lake Tahoe); Riverside Unified School District (1986) PERB Decision No. 562a (Riverside).)
When the respondent can establish an affirmative defense as a matter of law based on
undisputed facts, "the charge must be dismissed even when the charging party has otherwise
established a prima facie case." (Metropolitan Water District of Southern California (2009)
PERB Decision No. 2055-M (A1etropolitan Water District), p. 4, fn. 4, citing Long Beach
Community College District (2003) PERB Decision No. 1568.)
In processing an unfair practice charge, the role of a Board agent is to investigate the
charge to determine if an unfair practice has been alleged. However, the Board's regulations
do not "empower agents to rule on the ultimate merits of a charge." (City of Pinole (2012)
PERB Decision No'. 2288-M, pp, 11-12 (Pinole), citing Eastside Union School District (1984)
PERB Decision No. 466 (Eastside); PERB Regs. 32620 and 32640.) "[W]here the
investigation results in receipt of conflicting allegations of fact or contrary theories of law, fair
proceedings, if not due process, demand that a complaint be issued and the matter be sent to
formal hearing." (Eastside, p. 7.) The Board has construed this precept to mean that a
9

complaint should issue to test viable competing theories of law. (Pinole; City of San Jose
(2013) PERB Decision No. 2341-M; County of San Joaquin (2003) PERB Decision
No. 1570-M.)
Discrimination or Retaliation
1. The Prima Facie Case
To establish a prima facie case ofretaliation in violation of EERA section 3543.5(a),
the charging party must show that: (1) the employee exercised rights guaranteed by EERA;
(2) the employer had knowledge ofthe employee's exercise of those rights; (3) the employer
took action against or adverse to the interest of the employee; and (4) the employer acted
because of the employee's exercise of the guaranteed rights. (Novato, supra, PERB Decision
No.210.)
Unlawful motive is "the specific nexus required in the establishment of a prima facie
case" of retaliation. ''[D]irect proof of motivation is rarely possible, since motivation is a state
ofmind which may be known only to the actor. Thus ... unlawful motive can be established
by circumstantial evidence and inferred from the record as a whole," (Novato, supra, PERB
Decision No. 210, p. 6; Carlsbad Unified School District (1979) PERB Decision No. 89
(Carlsbad); Republic Aviation Corp. v. NLRB (1945) 324 U.S.793; Radio Officers' Union v.
NLRB (1954) 347 U.S. 17, 40-43.)5
5 When construing California Public Sector Labor Relations statutes, California courts
and PERB may rely on decisions ofthe National Labor Relations Board (NLRB) and judicial
decisions construing similar language in the National Labor Relations Act (NLRA) (San Mateo
City School Dist. v. PERE (1983) 33 Cal.3d 850; Fire Fighters Union v. City of Vallejo (1974)
12 Cal.3d 608), as well as decisions of California's Agricultural Labor Relations Board and
judicial decisions construing similar provisions of California's Agricultural Labor Relations
Act, which pursuant to California statute adhere to the jurisprudence ofthe NLRA. (Cal.
Labor Code, § 1148.)

To assist with assessing circumstantial evidence of unlawful motive, PERB has
developed a set of "nexus" factors. 	Although the timing of the employer's action in close
temporal proximity to the employee's protected activity is an important factor
(North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento)), it
· does not, without more, demonstrate the necessary nexus between the employer's action and
the protected activity. (Moreland Elementary School District (1982) PERB Decision No. 227.)
Along with suspicious timing, facts establishing one or more of the following factors
must also be present for a prima facie case: (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 (City of Torrance (2008)
PERB Decision No.1971-M; Coast Community College District (2003) PERB Decision
No. 1560); (5) the employer's failure to offer the employee justification at the time it took
action (Oakland Unified School District (2003) PERB Decision No. 1529) or the offering of
exaggerated, vague, or ambiguous reasons (McFarland Unified School District ( 1990) PERB
Decision No. 786); (6) employer animosity towards union activists or employees engaged in
protected conduct (Jurupa Community Services District (2007) PERB Decision No. 1920-M;
Jurupa Unified School District (2012) PERB Decision No. 2283, pp. 9-10; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive (North Sacramento, supra, PERB Decision
No. 264; Novato, supra, PERB Decision No. 210).
11

Where the employer's motive is the central issue, the fact finder must often rely heavily
on circumstantial evidence and inferences. Only rarely will there be probative direct evidence
of the employer's motivation. (Carlsbad, supra, (1979) PERB Decision No. 89, p. 11;
Shattuck Denn Mining Corp. v. NLRB (9th Cir. 1966) 362 F.2d 466.) An illegal purpose
harbored by a discriminating employer may be inferred from the circumstances surrounding
the adverse action. These may include anti-union animus exhibited by the employer or its
agents; the pretextual nature of the ostensible justification; or other failure to establish a
business justification. (Ibid.) In such cases, the Board is free to draw inferences from all the
circumstances, and need not accept an employer's self-serving declarations of intent, even if
they are uncontradicted. (NLRB v. Walton Mfg. Co. (1962) 369 U.S. 404; NLRB. v. Mark Coal
Co. (9 th Cir. 1963) 322 F.2d 311; NLRB v. Pacific Grinding Wheel Co., Inc. (9 th Cir. 1978) 572
F.2d 1343; NLRB v. Warren L. Rose Castings, Inc. (9th Cir. 1978) 587 F.2d 1005; Royal
Packing Co. v. Agricultural Labor Relations Ed. (1980) 101 Cal.App.3d 826.)
2. 	The Affirmative Defense
If the charging party establishes a prima facie case, the burden shifts to the employer to
prove by a preponderance of the evidence that it would have taken the same course of action,
regardless of any protected activity. (Trustees of the California State University (2000) PERB
Decision No. 1409-H, citing Novato, supra, PERB Decision No. 210; Martori Bros. Dist. v.
Agricultural Labor Relations Ed. (1981) 29 Cal.3d 721.) To prevail on its affirmative defense,
the employer must establish both that a legitimate, non-discriminatory reason existed for taking
the adverse action, and that the reason proffered was, in fact, the employer's reason for taking
adverse action. (Palo Verde Unified School District (2013) PERB Decision No. 2337,
pp. 12-13; Chula Vista Elementary School District (2011) PERB Decision No. 2221, p. 21.)
12

However, because the function of a Board agent investigating a charge is not to
weigh evidence, determine credibility or make findings of fact (Adza, supra, PERB Decision
No. 1632-M; Lake Tahoe, supra, PERB Decision No. 994; Riverside, supra, PERB Decision
No. 562a), it is generally not appropriate at this stage of the proceedings to determine the
employer's true motive for taking adverse action. (Sacramento City Unified School District
(2010) PERB Decision No. 2129, p. 12, fn. 8 (Sacramento).) An employer's affirmative
defense should be considered at ,the charge-processing stage of unfair practice proceedings
only ifraised in a verified and properly served position statement (PERB Regs. 32140(a) and
32620(c); County of Santa Clara (2015) PERB Decision No. 2431-M, pp. 17-18), and only if
the asserted defense rests on factual allegations that do not contradict those included in the
charge, and which the charging party does not dispute. ( Oakland Unified School District
(2003) PERB Decision No. 1529, pp. 11-12; Metropolitan Water District, supra, PERB
Decision No. 2055-M, p. 4, fn. 4.)
Interference
A finding of interference, coercion or restraint does not require evidence that any
employee subjectively felt threatened or intimidated or was in fact discouraged from
participating in protected activity; rather the inquiry is an objective one which asks whether,
under the circumstances, an employee would reasonably be discouraged from engaging in
protected activity. (Clovis Unified School District (1984) PERB Decision No. 389.)
If the harm to protected rights is slight and the employer offers justification based on
operational necessity, the competing interests are balanced. (Carlsbad, supra, PERB Decision
No. 89, p. 10; John Swett Unified School District (1981) PERB Decision No. 188, pp. 6-7, see
also State of California (Department of Personnel Administration) (2011) PERB Decision
13

No. 2106a-S.) If the harm to employee rights outweighs the asserted business justification, a
violation will be found. 	(Omnitrans (2009) PERB Decision No. 2030-M, pp. 22-24.)
Where the employer's conduct is inherently destructive of protected rights, it will be
excused only on proof that it was caused by circumstances beyond the employer's control and
that no alternative course of action was available. (Santa Monica Community College District
(1979) PERB Decision No. 103, pp. 19-20, affirmed by Santa Monica Community College
District v. PERE (1980) 112 Cal.App.3d 684; Carlsbad, supra, PERB Decision No. 89,
pp. 10-11.)
Irrespective of the foregoing, a charge will be sustained where it is shown that the
employer would not have engaged in the complained-of conduct but for an unlawful
motivation, purpose or intent. (Monterey Peninsula Unified School District (2014) PERB
Decision No. 2381, p. 42 (Monterey Peninsula); Carlsbad, supra, PERB Decision No. 89,
pp.10-11.)
Whether Good Cause Exists to Consider New Evidence
On July 23, 2015, Moberg submitted a request to present new evidence consisting of
two (2) work evaluations and a letter from the Commission on Teacher Credentialing (COTC)
which notified Moberg that an accusation brought against him by one of his former employers
had been dismissed.
Under PERB Regulation 32635(b) a charging party may not present new charge
allegations or new supporting evidence on appeal from a dismissal unless good cause is shown.
The Board has generally found good cause to do so when the new allegations or supporting
evidence could not have been discovered by the charging party through the exercise of
reasonable diligence before the charge was dismissed. (American Federation of State, County,
and Municipal Employees, Local 2620 (McGuire) (2012) PERB Decision No. 2286-S.) ·
14

Moberg's request claims that the evaluation evidence submitted demonstrates his
qualifications to teach English at the community college level belying the District's claim that
he did not meet the minimum standards- for the profession. Moberg claims that the dismissal of
charges brought against him by a former employer before the COTC demonstrates Hurley's
union animus, because Hurley had referred to Moberg's legal actions against previous
employers as "failings."
The Office of the General Counsel dismissed Moberg's charge on May 19, 2015. The
first document submitted by Moberg was a work evaluation from Napa Valley College for the
Fall 2014 semester. Moberg noted on this evaluation that he did not receive this document
until "Spring 2015." The second document is a work evaluation from the University of
San Francisco also for the Spring 2014 semester and Moberg notes on the document that he did
not receive it until "May 2015." Both of the ''dates" that Moberg purports to have received
these documents are ambiguous and Moberg's request does not explicitly state that these
documents were received after the dismissal of his amended charge on May 19, 2015.
Therefore, Moberg has not met his burden of showing good cause to present either of these two
documents as new evidence on appeal.
The third document Moberg submits is a letter from the COTC which is dated June 26,
2015. Moberg clearly could not have submitted this evidence prior to the Office of the General
Counsel's dismissal of his charge. However, the letter announces dismissal by COTC of an
accusation brought by a prior employer (MPUSD) challenging Moberg's qualifications.
Moberg contends that this letter contradicts, and therefore establishes animus by, Hurley, who
had previously remarked in correspondence to PERB that Moberg's legal actions related to his
employment were "failings." We conclude that Moberg makes too much of this seeming
contradiction. At best, it merely reflects Hurley's opinion concerning Moberg's legal
15

capability formed by Hurley without knowledge of the COTC' s disposition described in the
June 26, 2015, notice of which neither Hurley nor Moberg was aware until June 26, 2015. As
such, it is too remote in time to the events of November 2012 to be relevant to our
deliberations. We therefore conclude that although Moberg has established good cause to
consider the July 26, 2015, letter for the reasons set forth above the information lacks
relevance to the issues before us, viz., motivation of the District for its adverse actions against
Moberg on and after November 6, 2012.
Whether Moberg has Demonstrated a Prima Facie Case of Retaliation/Discrimination
The first issue presented by Moberg's appeal is whether he alleged a prima facie case
that the District retaliated against him for exercising rights protected under EERA by
withdrawing its tentative offer of employment as an adjunct instructor for the Spring 2013
semester, placing him on immediate paid leave and determining that he would not receive
offers of employment as an adjunct instructor in the future.
1. 	Protected Activity/Employer Knowledge
The Office of the General Counsel determined that Moberg had engaged in protected
activity when he filed PERB charges against previous employers. 	Several District employees,
including Weckler, received an e-mail from Moberg on November 4, 2012, which mentioned
an unfair practice charge against Hartnell that Moberg was in the process of filing with PERB.6
Moberg did not attach the complete unfair practice charge to the e-mail, only the statement of
the case. The Office of the General Counsel concluded that it was unclear whether the
recipients of Moberg's November 4, 2012, e-mail "understood the significance of the e-mail
message that Charging Party was in the process of filing a charge with PERB." (Dismissal
6 Moberg filed his charge against Hartnell on November 5, 2012. (Hartnell Community
College District (2015) PERB Decision No. 2452, p. 2.)
16

Ltr., p. 2.) Therefore, the Office of the General Counsel determined that Moberg had failed to
sufficiently allege that the District had knowledge of his protected activity.
We do not read Moberg's allegations so narrowly. The body of Moberg's November 4,
2012, e-mail specifically mentions a PERB charge against Hartnell and a document titled
"Hartnell PERB" is attached to the e-mail. While it is true that Moberg did not include the
PERB unfair practice charge form and standing on its own Moberg's "Hartnell PERB"
document would fail to meet all of PERB' s requirements for filing an unfair practice charge,7
the "Hartnell PERB" document itself mentions violations of BERA and cites to appropriate
sections of the Government Code. We conclude therefore that Mo berg's November 4, 2012,
e-mail sufficiently informed its recipients that Moberg had engaged in protected activity by
filing PERB charges against Hartnell.
On November 8, 2012, Weckler sent an e-mail to Moberg which stated,
I am aware that your Cabrillo employment application was
incomplete because in your e-mail to me earlier this week, you
volunteered the information that you worked at Monterey
Peninsula Unified School District.
(Weckler November 8, 2012, e-mail.) There is no allegation by the District that Moberg sent a
different e-mail that mentioned his employment with MPUSD other than the November 4,
2012, e-mail during the week preceding November 8, 2012. The District does not deny that
Weckler read Moberg's November 4, 2012, e-mail.
We conclude therefore that Moberg engaged in protected activity when he filed an
unfair practice charge against Hartnell and that the District knew of Mo berg's protected
activity through Moberg's November 4, 2012, e-mail.
7 PERB Regulation 32615 describes the contents of an unfair practice charge filed with
PERB, which coincidentally does not require use of PERB's unfair practice charge form.
17

2. 	Adverse Action
The Office of the General Counsel correctly determined that Weckler's November 6,
2012, withdrawal of Moberg' s employment was an adverse action. Though not explicitly
stated in the dismissal letter, the Office of the General Counsel also seems to have determined
that the denial of future employment to Moberg is also an adverse action.8 To the extent that
the Office of the General Counsel determined that the withdrawal of tentatively scheduled
employment and all future employment is an adverse action, we concur.
In addition, we conclude that placing Moberg on involuntary paid leave is an adverse
action. (San Mateo County Community College District (2008) PERB Decision No. 1980;
Oakland Unified School District (2003) PERB Decision No. 1529.)
3. 	Nexus
The District learned of Mo berg's protected activity on November 4, 2012, and took
adverse action against him on November 6, 2012. Clearly, Moberg has demonstrated a close
temporal proximity between the employer's knowledge of his protected activity and the
adverse action. The Office of the General Counsel concluded, however, that Moberg had
failed to allege other circumstantial evidence of unlawful motive. We disagree.
The record contains insufficient evidence to conclude that Moberg was treated
disparately, or that the District departed from established procedures, or that the District
displayed animosity towards union activists. However, Moberg has alleged that the
employer's investigation of his alleged misconduct was cursory at best and possibly even
pretextual. We explain.
8 The dismissal letter cites two further communications from the District on
December 13, 2012 and March 14, 2013, which confirm that Moberg would not be considered
for any future employment by the District.
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The District has consistently maintained that it withdrew standing and future offers of
employment to Moberg, because it determined that he had presented false credentials and an
incomplete employment history. The District claims that Prescott University, where Moberg
obtained a master's degree and a Ph.D., is a "fake" university and that Moberg failed to inform
the District of his prior employment with MPUSD. Moberg denies both of these contentions.
It is sufficient at this stage in the proceedings that Moberg denies the District's
allegations regarding his degrees from Prescott University. Conflicting issues of material fact
are to be resolved through PERB's hearing process. (Sacramento, supra, PERB Decision
No. 2129). However, we note that the District has submitted unverified and undated evidence
regarding its investigation of Prescott University. In addition, the District failed to indicate for
how long it had investigated Moberg's credentials or when it first suspected there was an issue
with them. The District raised no issue with Moberg's employment prior to November 4,
2012. After November 4, 2012, the District made an accusation against Moberg that was
suspiciously similar to the October 2, 2012, justification for dismissing Moberg following an
investigation by a Hartnell administrator:
Moberg had engaged in "[m]ultiple instances of dishonesty" by
providing false information in his employment application about
his academic degrees, which Hartnell alleged were "fraudulent"
or "fake" degrees provided by unaccredited "diploma mill[ s]"
[and] ... asserted that, as part of his application for employment
with Hartnell, Moberg omitted material information about his
employment history, including information about instances in
which Moberg had been terminated or had resigned in lieu of
termination.
(Hartnell Community College District, supra, PERB Decision No. 2452, p. 9.)
This lack of evidence regarding an independent investigation by the District prior to its
taking adverse action against Moberg suggests that the District's justification was pretextual.
The District has not described how it conducted a thorough investigation of Mo berg's
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academic credentials in the two days between Moberg's November 4, 2012, e-mail and the
District's November 6, 2012 adverse action. In addition, the undated evidence that was first
submitted to PERB by the District in its March 6, 2013, position statement is arguably '"after
the fact," and therefore unconvincing justification for its November 6, 2012, adverse action.
As such, it supports an inference of unlawful motive as an attempt to legitimize later its earlier
decision to impose adverse action. (Sacramento, supra, PERB Decision No. 2129.) We
conclude, therefore, that Moberg has sufficiently alleged that the District's motive for placing
him on involuntary, paid administrative leave, withdrawing its tentative offer of employment
for Spring 2013 and foreclosing the possibility of future employment with the District, was
Moberg's protected conduct and not the District's concerns about Moberg's qualifications and
or his alleged failure to document or disclose prior employment at MPUSD.
In addition, Moberg disputes the District's contention that he did not inform the District
of his employment with MPUSD. The Office of the General Counsel noted that Moberg listed
Monterey Adult School, not Monterey Peninsula Unified School District or MPUSD under
"Other Employment References." In Monterey Peninsula, supra, PERB Decision No. 2381,
we noted that Moberg was assigned by the MPUSD to the Monterey Adult School site (Ibid. at
p. 4.) We also identified Heath Rocha (Rocha) (Moberg's contact person for Monterey Adult
School on his employment application with the District) as an administrator wit? MPUSD.
(Ibid. at p. 6.) Had the District called Rocha, it would have learned that Moberg was employed
by MPUSD at the Monterey Adult School. On this basis, we conclude that Moberg has
sufficiently disputed the District's allegation that he submitted an incomplete employment
history. Thus, Moberg has sufficiently alleged that the District had an unlawful motive when it
· justified its adverse action based on his failure to list the MPUSD as a former employer.
20

Whether Moberg has Demonstrated a Prima Facie Case of Interference
Moberg contends that McCawley interfered with his EERA protected rights by
informing WVMCCD that he was dismissed from the District for submitting false credentials.
There is no evidence that McCawley made such a statement. Moberg does not affirmatively
allege that McCawley made the statement to Richey; rather he submits an e-mail he sent to
McCawley accusing her of having informed Richey that Moberg had been dismissed by the
District for false credentials. For her part, McCawley denies giving Richey this information.
Since Moberg's allegation appears to be based solely on speculation and he makes no
affirmative allegation and provides no evidence that McCawley was, in fact, Richey's source
of information, we may consider the District's uncontroverted evidence that McCawley did not
inform Richey that Moberg was dismissed by the District for providing false credentials.
Therefore, we conclude with the Office of the General Counsel that Moberg failed to allege a
prima facie charge of interference.
Conclusion
Based on the foregoing discussion, we reverse the Office of the General Counsel's
dismissal of Mo berg's allegation that the District retaliated or discriminated against him for
exercising rights protected by EERA. However, we conclude with the Office of the General
Counsel that Moberg has failed to allege a prima facie case that the District interfered with his
BERA protected rights.
21

ORDER
It is hereby ORDERED that the dismissal of the unfair practice charge, as amended, in
Case No. SF-CE-2994-E is REVERSED and the matter is REMANDED to the Office of the
General Counsel for issuance of a complaint alleging that the Cabrillo Community College
District discriminated against Eric M. Moberg for exercising rights protected by the Educational
Employment Relations Act in violation of section 3543.S(a), in accordance with this decision.
Chair Martinez and Member Banks joined in this Decision.
22