Mt. San Jacinto Community College District (PERB 2865E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MT. SAN JACINTO COLLEGE FACULTY
ASSOCIATION,
Charging Party,
v.
MT. SAN JACINTO COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-6583-E
PERB Decision No. 2865
June 28, 2023
Appearances: California Teachers Association by York Chang, Attorney, for Mt. San
Jacinto Faculty Association; Atkinson, Andelson, Loya, Ruud & Romo by Paul Z.
McGlocklin and John W. Dietrich, Attorneys, for Mt. San Jacinto Community College
District.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on Mt. San Jacinto Community College District’s exceptions to
the proposed decision of an administrative law judge (ALJ). The ALJ found that the
District violated the Educational Employment Relations Act (EERA) when it removed
faculty members Rosaleen Gibbons and Farah Firtha as chairs of the Chemistry
Department, refused to recognize their subsequent reelection as chairs, reassigned
them to teach lower level classes for the Fall 2020 semester, and issued two
counseling documents, each in retaliation for protected activities including raising

2
safety concerns and alleging that their removal as chairs was retaliatory.1 The District
excepted, primarily alleging that: (1) Gibbons’s and Firtha’s conduct was not protected
by EERA; (2) removal as chairs, refusal to reinstate as chairs, and assignment of Fall
2020 classes were not adverse actions; (3) the Mt. San Jacinto College Faculty
Association failed to establish nexus; (4) even if the Association made a prima facie
case of retaliation, the District met its burden to show legitimate, nondiscriminatory
reasons for its actions; and (5) the ALJ erred in his ordered remedies. The Association
urges us to deny the District’s exceptions and thus affirm the proposed decision.
Based on our review of the proposed decision, the entire record, and the
parties’ arguments in light of applicable law, we find the record supports the proposed
decision’s factual findings and its legal conclusions are in accordance with applicable
law. We therefore affirm the proposed decision, as supplemented by our discussion
below.
FACTUAL AND PROCEDURAL BACKGROUND2
District and Chemistry Department Structure and Background
The District is a public school employer within the meaning of Government
Code section 3540.1, subdivision (k). The Association is an employee organization
within the meaning of section 3540.1, subdivision (d) and an exclusive representative
1 EERA is codified at Government Code section 3540 et seq. All further
undesignated statutory references are to the Government Code. PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq.
2 The District challenges the brevity of the proposed decision’s factual findings,
but does not except to any specific finding of fact. This factual background is drawn
from the proposed decision, supplemented by the record to provide additional support
for the discussion below.

3
within the meaning of section 3540.1, subdivision (e). Gibbons and Firtha are
employees within the meaning of section 3540.1, subdivision (j).
This case primarily concerns the District’s Chemistry Department, which at the
time of hearing had faculty at two District campuses, the San Jacinto campus and the
Menifee Valley campus. Jeremy Brown is the District’s Vice President of Instruction.
Brown’s duties include overseeing all classes, supervising instructional deans, and
working closely with faculty on the curriculum process to develop new courses,
maintain existing courses, and deactivate courses that are no longer needed.
During the relevant time period, Brown supervised Dean of Instruction Marc
Donnhauser. Prior to July 1, 2020, Donnhauser’s duties included supervising all
Menifee Valley campus Chemistry Department instructional staff, including Firtha and
her instructional aides (IAs). After July 1, 2020, Donnhauser was assigned to oversee
math and science departments District-wide, including the Chemistry Department at
both the San Jacinto campus and the Menifee Valley campus, and he also became the
direct supervisor of Rosaleen Gibbons and her IAs.
Gibbons has worked as a chemistry professor at the San Jacinto campus since
2012, and as a tenured professor since 2014. Gibbons began serving as the San
Jacinto Chemistry Department chair in 2015. Prior to Fall 2020, Gibbons typically
taught the majors’ chemistry courses, including majors’ general chemistry and majors’
organic chemistry, which had more detail and complexity than non-majors’ courses.3
3 “Majors’” courses refer to courses taken by chemistry or other science majors.

4
Prior to March 2020, Gibbons had never been disciplined, and had never received an
unsatisfactory performance evaluation.
Firtha has worked as a chemistry professor at the Menifee Valley campus since
2011. Firtha began serving as the Menifee Valley Chemistry Department chair in 2012.
Prior to Fall 2020, Firtha typically taught only majors’ chemistry classes, including
general organic chemistry and biochemistry courses. Prior to March 2020, Firtha had
never been disciplined, and had never received an unsatisfactory performance
evaluation.
The District and the Association are parties to a collective bargaining agreement
(CBA). CBA Article XI sets forth department chair compensation and duties. Article XI,
section (B) provides that department chair duties include, in relevant part: recruiting
part-time faculty, coordinating with deans to schedule classes and order textbooks for
these classes; coordinating with departmental faculty to staff class offerings,
coordinating development and revision of departmental curriculum, approving
professional development activities for part-time faculty, and assigning work tasks to
employees, such as IAs.4 The District’s standard practice for appointing a department
chair is that every two years, the District’s Academic Senate sends out a request for
nominations, and then administers an election of the chair by full-time departmental
faculty (tenured and tenure-track) and all currently serving adjunct faculty. Once it
records the election results, the Academic Senate sends the list of elected faculty
members to the Vice President of Instruction, who then contacts the elected faculty
4 While department chairs can assign work tasks to IAs, they cannot supervise
them.

5
members to go over the department chair duties and compensation. The Vice President
of Instruction assigns the chair duties to the elected chair. There is no other regular
process for appointing a department chair.
The CBA provides that department chairs may receive two forms of extra
compensation. First, Article XI, section (A)(2) provides department chairs with partial
release time from instructional duties. Next, Article XI, section (C) provides that “all extra
duties associated with specialized departments will have coordination between the
Department Chair and the area dean to determine appropriate compensation.” Gibbons
and Firtha received both release time and extra duty pay.
Article XI, section (D) also establishes a procedure for the removal of department
chairs, which requires an evaluation at the end of the first year as department chair, at
least once every other academic year thereafter, and provides for the removal of
department chair duties from a department chair upon an unsatisfactory rating. Article
XI, section (D)(4) provides: “The overall evaluation will be rated meets/exceeds
expectations, needs improvement, or unsatisfactory. A rating of needs improvement
must be accompanied by written recommendations for improvement, goals, and timeline
to meet goals. Another evaluation will take place the following semester to document
improvement. A rating of unsatisfactory may result in the removal of department chair
duties from the Unit Member.” The parties negotiated Article XI, section (D) in part
because the District prioritized developing a method to remove a department chair
during bargaining for the 2017-2020 CBA. Twice in recent memory, but before the
events at issue here, a department chair vacated their chair position upon mutual

6
agreement with the District. In those instances, an administrator took over chair duties
rather than appointing a new chair.
Chemistry Lab Safety Concerns
Beginning in 2017, Gibbons and Firtha began reporting Chemistry Department
safety concerns to Brown and Donnhauser.5 In brief, the college had an ongoing
problem recruiting, training, and retaining IAs. IAs set up chemistry experiments and
manage chemicals. The San Jacinto campus, in particular, required qualified and
trained IAs to independently supervise students in the Organic Chemistry class as
they worked in two separate but adjoining laboratories, with limited line-of-sight
between the two. Due to the staffing shortage and frequent turnover, the work was not
consistently performed. In Fall 2018, there were two lab explosions and two chemical
fires that Firtha attributed to IA performance issues. Gibbons and Firtha paid close
attention to these problems and the potential impacts to faculty safety, and on several
occasions asked that the District take steps to address these issues. Brown and
Donnhauser met with Gibbons and Firtha several times and made multiple efforts to
address the problem, but it remained substantially unsolved. Gibbons and Firtha grew
frustrated with the problem, Brown and Donnhauser grew frustrated with the chairs’
approach, and the relationship between the chairs and administration soured.
5 Alma Ramirez also received some of these complaints. From sometime in
2019 through July 1, 2020, Ramirez was Dean of Instruction over the Chemistry
Department at the San Jacinto campus. However, Ramirez did not testify at the
hearing and the parties’ arguments do not substantively rely on her involvement in the
events at issue in this case.

7
In January 2020, an IA at the San Jacinto campus, Jose Guerrero, accepted a
promotion to the Menifee Valley campus.6 Because Guerrero’s move would leave the
San Jacinto campus without an experienced IA for Organic Chemistry labs, and
because the current Organic Chemistry instructor, Michael Martinez, was new to
teaching that class, for safety reasons Gibbons and Firtha asked Brown to allow
Guerrero to continue to cover some Organic Chemistry classes at the San Jacinto
campus until a replacement could be sufficiently trained. Brown denied the request
and Gibbons pushed the issue. In February, Gibbons and Firtha raised the workplace
safety issue and their proposed solution to the Academic Senate and the Association;
Gibbons also e-mailed the same concerns directly to Jeannine Stokes, then the
District’s Chief Human Resources Officer.7 Their e-mails and an Association leader’s
response were forwarded to Brown. On February 21, Brown e-mailed the Chemistry
Department faculty and administrators with his plan to provide support for the San
Jacinto campus Organic Chemistry lab, which included IA Sylvia Heredia working
overtime to support the class during recruitment to fill the permanent position, and
continued research on duty of care standards. Brown described these solutions as
“temporary”, and on March 4 Heredia confirmed via e-mail that she could not continue
to be present in the Organic Chemistry labs.
6 All further undesignated date references are to 2020.
7 Stokes held several titles from the relevant time period through her testimony
at the formal hearing, but at all relevant times acted as the District’s top level Human
Resources administrator.

8
March 5 Meeting Request
On March 5, Brown e-mailed Gibbons and Firtha with the subject “Chemistry
[D]epartment staffing meeting.” He said, in relevant part:
“We are working on a solution to bring [Guerrero] over to
support [Martinez’s Organic Chemistry] class. Cheri
[Hodge] will be reaching out to him today. I have been in
communication with the individuals directly involved
throughout this process.
“It is important that we have a broader conversation soon
about the [C]hemistry [D]epartment. [Donnhauser],
[Ramirez| and I are coordinating schedules, and I see
availability in your teaching/office hours schedule on
Monday, March 5.8 Please make yourselves available
Monday at 11:00-12:00. It would be best if we can meet
together in my office at MVC, 915, but I can make a Zoom
option available if you cannot make it to MVC.
“Please let me know if you have scheduling issues with this
time. You can expect a calendar invite from Debbie.”
(Bold in original.)
On March 8, at 6:40 p.m., Gibbons responded to Brown’s e-mail. She was
critical, stating, for example, “we have lost complete confidence in your . . . abilities to
manage [C]hemistry [D]epartment issues in a professionally thoughtful, reasoned, and
timely manner,” and “you have demonstrated dereliction of duty of such gravity that it
is increasingly likely that students, staff, and faculty will suffer serious injuries,
including some that might even prove to be lethal in nature.” She also said that she
planned to file a complaint and that she believed it was inappropriate for her to meet
8 Though the e-mail contained the wrong date, the parties understood it to
mean Monday, March 9.

9
with him. Brown replied at 9:25 p.m. that he expected Gibbons to attend the meeting
the next day. Gibbons responded on March 9 at 12:12 a.m. Her e-mail referenced the
ongoing request for Guerrero’s staffing, noted that Firtha planned to attend a virtual
conference Monday through Wednesday, and stated that they were scheduling a
meeting with legal counsel regarding Brown’s harassment related to “intimidating us
into forsaking our duty-of-care concerns.” Gibbons explained that for these reasons,
“we will not be accepting your invitation for the 3/9/2020 meeting.” The e-mail’s
signature line said it was from both Gibbons and Firtha, but Firtha did not send an
independent e-mail or otherwise directly respond.
Brown responded by e-mail at 7:54 a.m. Brown disputed Gibbons’s
characterizations, asserted that Firtha could attend because it was a virtual
conference, and wrote “[y]our refusal to attend this meeting is a clear demonstration of
insubordination . . .” Brown responded, in part: “I have indicated in the initial [e-mail]
that we are planning to arrive at the conclusion you initially asked for, and I have
invited, and then directed you to attend a meeting to discuss details.” Brown
concluded as follows:
“your unwillingness to communicate creates a barrier that
can result in a host of problems from lack of supervision. I
see no way forward with the two of you as department
chairs of chemistry. As of today, you will no longer hold the
position of department chair. As you have already
completed the work of scheduling for the current semester
and have done much of the department coordination, this
will not impact your teaching load or pay for the Spring
2020 semester. Going forward, the deans and director of
instructional labs will communicate directly with each faculty
member and IA staff regarding matters of their own
classrooms. You will not be ‘required’ members of any
chemistry faculty department evaluations. Fall 2020

10
schedules will be developed in direct conversation between
deans and faculty, and departmental duties will be handled
in the same manner.”
Six minutes later, Brown sent a follow-up e-mail to Gibbons and Firtha, writing “I
meant to add that I regret that our working relationship has reached this point. Please
know that the removal of department chairs is a last resort for me, as I respect the
expertise that you can bring to the management of a department. Unfortunately, when
chairs and deans are completely at odds, this impacts students, faculty, and staff.”
On March 10, Brown informed the chemistry faculty and staff that Gibbons and
Firtha were no longer the Chemistry Department chairs. The unilateral removal of a
department chair was unusual and without clear precedent at the District. On March
18, Brown appointed Professor Josh Hartman as Chemistry Department chair. The
faculty did not elect Hartman at that time. The parties disagree about how exceptional
it was for the District to appoint a chair without a faculty election, but it was at least
unusual and had not happened recently. In early April, the chemistry faculty re-elected
Gibbons and Firtha as Chemistry Department chairs, with Hartman elected as co-chair
for the Menifee Valley campus. Brown acknowledged the election, but via e-mail on
April 3 informed Gibbons and Firtha that “I will not be approving your assignment as
chairs, for the reasons expressed earlier this semester. My decision on this still
stands.”
Fall 2020 Teaching Schedule
On April 22, Brown sent out the Fall 2020 teaching schedule for the Chemistry
Department. In other years, Donnhauser worked directly with the Chemistry
Department chairs to develop faculty staffing assignments, typically without the direct

11
involvement of the Vice President of lnstruction. For the Fall 2020 schedule, Brown
created the schedule himself without consulting Donnhauser or Hartman, though he
later consulted them about implementation. Brown made the decisions about the
schedule and assignments “pretty close to the time” that he announced the changed
schedule. It was unusual for the Vice President of Instruction to have this level of
involvement in scheduling and staffing.
The Fall 2020 schedule showed Gibbons and Firtha assigned to teach multiple
classes of Introductory Chemistry, instead of the majors’ level chemistry classes they
typically taught. Per Gibbons, changing to teaching Introductory Chemistry doubled
the number of students she taught in a semester from 48 students to 96 students,
increasing her workload. Firtha also took on more students by teaching three sections
of Introductory Chemistry classes, resulting in approximately 20 more students, which
generated additional work. Brown testified that he did not have any particular reason
for assigning Gibbons and Firtha to teach Introductory Chemistry.9
9 Donnhauser, in contrast, testified that Brown told him he reassigned Gibbons
and Firtha to Introductory Chemistry because they were the most senior Chemistry
Department faculty at the time, and by teaching those courses they could set the
foundation of knowledge and identify where incoming students had deficiencies. The
ALJ did not resolve this testimonial dispute. This requires the Board to make a
credibility determination itself. (See Regents of the University of California (2020)
PERB Decision No. 2704-H, pp. 16-21.) Because Donnhauser’s testimony is
uncorroborated hearsay, and because it is undisputed that Brown made the decision
to reassign Gibbons and Firtha without input, we do not credit Donnhauser’s testimony
on Brown’s reasoning. (See PERB Reg. 32176.) Instead, we find Brown’s inability to
recall any specific justification for his own decision to be a salient factor tending to
show discriminatory motive.

12
Gibbons responded to the new schedule with an e-mail to Brown on May 4
which she copied to several people, including Firtha and Donnhauser. Gibbons’s
e-mail began by noting “I’m not sure what the logic is for changing the [two] most
senior faculty members schedules to Introductory Chemistry, allowing other
scheduling alterations but refusing any for [Firtha] and I for the upcoming Fall
schedule, but once again, this feels like harassment.” Her e-mail went on to note that
the new scheduling plan seemed likely to negatively impact part-time faculty who may
hold other jobs elsewhere and typically keep the same schedule semester after
semester in order to synchronize their course loads.
Brown responded to Gibbons’s e-mail on May 5, acknowledging that Firtha had
also questioned the new schedule, and stating in pertinent part “while I can see that
this is a major departure from past scheduling practice of the [C]hemistry
[D]epartment, I respectfully ask that you both accept the change in your assignments
and work toward the goal--increased student success across all courses in the
department.” Brown offered to meet with Gibbons to discuss further. Gibbons replied
to Brown that day, saying that Brown “completely misread the point” of her e-mail;
acknowledging Brown had the right to assign classes, but reiterating her concerns that
the new schedule would negatively impact part-time faculty and that Brown’s actions
had excluded faculty from decisions at the District.
Gibbons’s May 6 Counseling Memo
On May 6, Brown e-mailed Gibbons a counseling memo. The memo stated in
pertinent part:
“This memo serves as a counseling memo regarding your
disrespectful communication on Tuesday, May 5, 2020 . . .

13
Your message is a clear example of disrespectful behavior.
I have alerted you to similar behavior in the past, (March 8,
2020), when you and Farah Firtha refused to meet with me
as department chairs. On Tuesday, May 5, 2020, I
respectfully requested that you accept the change in
assignment and focus on the goal of bringing more
students successfully through your course. I offered to meet
with you, should you have other questions, and asked that
you contact my executive assistant. In response, you
continued to make your argument and escalated your tone
to one that is clearly disrespectful. This is insubordinate
behavior. ‘You completely misread the point of my [e-mail],’
is an inappropriate assumption. You are also assuming that
‘the point of logical chemistry curriculum [has] been
excluded from [my] decisions’ and that ‘the COVID
struggles of part-time faculty is absent from consideration
as well.’
[¶] . . . [¶]
“A copy of this memo will not be placed in your personnel
file at this time. However, in the event that this issue recurs
in the further and if you do not comply with this directive,
this memo will be placed in your personnel file and further
corrective action will be taken.”10
10 Though the memo stated it would not be placed in Gibbons’s personnel file,
she later located it there during a file review in August. The record does not reflect
who placed the memo in her personnel file, or when this occurred. The District
removed it from her personnel file upon her request on August 17. Per an e-mail from
Stokes, the District would maintain the memo in Brown’s “suspense file.” Stokes’s
uncontradicted testimony at hearing indicated that “[s]ome counseling memos are
placed in the [personnel] file depending upon the severity of the counseling memo.
Most of the time they’re in what we call a suspense or site file,” maintained by Stokes,
Brown, and Human Resources analysts. The suspense files were organized by faculty
name, and the District would refer to them if any faculty member issues subsequently
arose. At that point, the District could attach any documents held in the suspense file
to subsequent disciplinary documents and move them all to the employee’s personnel
file.

14
Firtha’s Comments at the May 6 Academic Senate meeting
Also on May 6, the District’s Academic Senate convened. During the meeting,
Firtha addressed the Senate and said that Brown removed her and Gibbons as
Chemistry Department chairs in retaliation for advocating for workplace safety, urging
the Academic Senate not to approve the list of department chairs from which she and
Gibbons had been removed. On May 6, at 8:06 p.m., Brown e-mailed Firtha (May 6
admonishment). His e-mail said in pertinent part:
“The purpose of this [e-mail] is to inform you that a
statement you made in the Academic Senate meeting on
5/6/2020 was inaccurate, and may have caused
misunderstanding among participants in the discussion as
they made decisions. On the item ‘Department Chairs,’ you
explained that ‘we have been advocating for our program's
integrity and the safety of our program, and that has
resulted in the chairs being removed by admin . . . l guess
we are kind of asking that you use your powers and
perhaps maybe not approve this list . . . .’ ‘There kind of
needs to be a way to protect faculty when they are
advocating for their program and their program’s integrity
and especially for chemistry we’re advocating for the safety
of our program.’ It appears that you perceive the reason for
your removal of chair was due to your advocacy for
chemical safety. In my [e-mail] to you on Sunday, March 8,
I made clear that the reason for your removal was because
you and [Gibbons] refused to meet with us, and that your
insubordination results in a breakdown in communication
and a dysfunctional supervisory relationship.
“In the future, it is important in public meetings to accurately
represent these matters. The District is committed to your
continuing success. To that end, the District wants to
ensure that you have access to AP 7360 and BP 7360.3.”11
11 AP 7360 and BP 7360.3 are two District disciplinary policies.

15
Firtha later reviewed her personnel file and found a copy of the May 6 admonishment
in the file. On August 24, Firtha e-mailed Stokes and requested she remove the
admonishment from Firtha’s file. Stokes replied the same day to confirm the e-mail
was removed from the file, asserting that an analyst placed it in Firtha’s file
inadvertently.
Procedural Summary
The Association filed an unfair practice charge on September 3, and the District
filed a position statement on October 5. PERB’s Office of the General Counsel issued
a complaint against the District on July 19, 2021, which alleged: (1) Gibbons and/or
Firtha exercised rights guaranteed by EERA by: raising workplace and classroom
safety concerns to District management staff and advocating for training and proper
classifications of employees; on February 17, raising concerns with the Association
regarding unsafe working conditions in the chemistry laboratories due to unstaffed
course sections and lack of properly-trained classified staff; on February 18, Gibbons
notifying the District’s management staff regarding safety concerns at the chemistry
labs; on February 29, Gibbons—on behalf of herself and Firtha—forwarding an e-mail
message to management staff regarding, among other things, improperly trained staff
overseeing the labs, and “liabilities” arising from understaffed labs; on March 8,
declining to attend a meeting with the District’s management staff due to
management’s lack of concern for safety and “mockery” of their recommendations,
also advising Brown that they were preparing a complaint due to the
non-responsiveness regarding their safety concerns; on May 6, 2020, Firtha attending
the District’s Academic Senate meeting to voice concerns of retaliation for their

16
protected activity, and to ask the Senate for support; (2) the District’s management
agents, including Brown, took adverse action against Gibbons and/or Firtha as follows:
on March 9, Brown removing them from Chemistry Department chair positions; on
April 3, Brown refusing to recognize their re-election and assignment as Chemistry
Department chairs; on April 22, changing their teaching assignment for the 2020-2021
school year from “upper-level chemistry” to “remedial chemistry,” which is typically
taught by part-time employees and faculty with the least seniority; on May 6, Brown
issuing Gibbons a “counseling memo”; and on June 29, Brown placing in Firtha’s
personnel file a May 6 e-mail message admonishing her to speak more accurately in
public comments (e.g., during Academic Senate meetings), while also referencing
Respondent’s Discipline and Dismissal protocols; and (3) the District took these
actions because of Gibbons’s and/or Firtha’s protected activities. The complaint also
alleged derivative interference violations.
The District filed a timely answer. PERB held two informal conferences, but the
parties did not reach a resolution, and PERB held a formal hearing on March 7-9,
2022, via PERB’s Webex Platform. After receiving closing briefs, the ALJ issued his
proposed decision on December 30, 2022, finding that the District violated EERA by
retaliating against Gibbons and Firtha for engaging in protected activities, and also
finding derivative interference violations. The District filed timely exceptions,
challenging the bulk of the ALJ’s legal conclusions. The Association filed a timely
response, urging us to deny the District’s exceptions.

17
DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 6.)
Under this standard, we review the entire record and are free to make different factual
findings and reach different legal conclusions than those in the proposed decision.
(City and County of San Francisco (2021) PERB Decision No. 2757-M, p. 8.)
However, the Board need not address issues that the proposed decision has
adequately addressed or that would not impact the outcome. (City of San Ramon
(2018) PERB Decision No. 2571-M, p. 5.) PERB Regulation 32300, subdivision (e)(1)
provides that “[a]bsent good cause, the Board itself will not consider . . . issues and
arguments not raised in the statement of exceptions.”
Except for cases involving alleged facial discrimination, PERB considers a
charging party’s discrimination or retaliation claim under the framework set forth in
Novato Unified School District (1982) PERB Decision No. 210 (Novato) and its
progeny. (San Diego Unified School District (2019) PERB Decision No. 2634, p. 12 &
fn. 6.) Under the Novato framework, the charging party’s prima facie case requires
each of the following four elements: (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 employees; and (4) the respondent took the adverse 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 of San Diego (2020) PERB
Decision No. 2747-M, p. 26; City and County of San Francisco (2020) PERB Decision

18
No. 2712-M, p. 15 (San Francisco).) If a charging party establishes a prima facie case
of retaliation, and the evidence also reveals a non-discriminatory reason for the
employer’s decision, the respondent may prove, by a preponderance of the evidence
as an affirmative defense, that it would have taken the exact same action even absent
protected activity. (Ibid.)
The District’s exceptions do not dispute employer knowledge, nor do they
challenge the determination that Gibbons’s May 6 counseling memo and Firtha’s
May 6 admonishment are adverse actions, but otherwise the District challenges all
other elements of the Association’s prima facie case, as well as asserts the affirmative
defense that it would have taken the same actions regardless of Gibbons’s and
Firtha’s protected activities. The District’s exceptions also challenge portions of the
ALJ’s remedial order. We address each remaining element of the prima facie case,
then address the District’s affirmative defense before turning to the appropriate
remedy.
I. 	Protected Activity
PERB-administered statutes protect most union and employee speech related
to legitimate labor and employment concerns. (Carpinteria Unified School District
(2021) PERB Decision No. 2797, pp. 13-14 (Carpinteria).) For instance, an employee
is typically protected in criticizing working conditions, management, or union
leadership, if the criticism relates to advancing employee interests or is a logical
extension of group activity. (Ibid.)12
12 EERA also protects certificated employees’ speech on educational policy.
(Berkeley Unified School District (2015) PERB Decision No. 2411, pp. 16-18.)

19
A. 	Safety Complaints
The Board has long held that EERA protects an employee’s pursuit of a
safety-related complaint through their union. (Oakdale Union Elementary School
District (1998) PERB Decision No. 1246, p. 17 (Oakdale), citing Regents of the
University of California (1983) PERB Decision No. 319-H, p. 15, fn. 6.) EERA also
protects employees’ right to report safety concerns to their employer (Pleasant Valley
School District (1988) PERB Decision No. 708, p. 15), as well as an individual
employee’s right report safety concerns to a third party (Oakdale, supra, PERB
Decision No. 1246, p. 18).
The District argues that the ALJ erred in finding Gibbons’s and Firtha’s safety
complaints are protected because EERA does not protect employees’ complaints
about safety that were solely their own, and that Gibbons’s and Firtha’s safety
complaints were not a logical continuation of a group activity. The facts do not support
the District’s argument. For one, Gibbons and Firtha often jointly pursued their
concerns about IA staffing, making their complaints by nature collective rather than
individual. Further, their February 2020 attempts to supply IA coverage in the Organic
Chemistry lab were for Martinez’s Organic Chemistry classes, not their own. EERA
protects complaints regarding the lab safety and related staffing concerns Gibbons
and Firtha raised beginning in 2018 and their related e-mailed complaints to District
management and the Association in February 2020.13
13 In addition, Gibbons’s and Firtha’s safety complaints are also protected under
EERA’s express right to self-representation. (Gov. Code, § 3543.) To the extent PERB
precedent ever supported the District’s assertion that EERA’s protection extends only
to complaints about working conditions that are logical continuations of group activity,
the Board overturned that precedent in Walnut Valley Unified School District (2016)

20
B. 	Gibbons’s May 4 and May 5 E-mails
The District also excepts to the ALJ’s conclusion that EERA protects Gibbons’s
May 4 and May 5 e-mails to Brown. As we explain, we agree with the ALJ that these
communications are protected.14
PERB Decision No. 2495, pp. 16, 18-19 [disavowing prior PERB precedent insofar as
it suggested that an employee’s complaint to management about their own working
conditions is only protected when it is a logical continuation of group activity].) Though
the Legislature removed EERA’s explicit right to self-representation in 2000, it was
reinstated in 2008. (Contra Costa Community College District (2019) PERB Decision
No. 2669, pp. 4-5.)
14 The District argues that the ALJ erred in considering Gibbons’s May 4 and
May 5 e-mails because the complaint did not include the e-mails as protected
activities. While the complaint does not explicitly list Gibbons’s May 4 and 5 e-mails as
protected activities, the complaint lists the response to these e-mails, the May 6
counseling memo, as an adverse action, which is sufficient for PERB’s notice pleading
standard. (State of California (State Water Resources Control Board) (2022) PERB
Decision No. 2830-S, pp. 14-15; County of San Joaquin (2021) PERB Decision
No. 2761-M, p. 21.) Moreover, even if the complaint were deficient, this allegation
would meet the standard for an unalleged violation. Nothing precludes the Board from
considering an unalleged violation (including unalleged protected activity) on
exceptions to a proposed decision if all of the necessary criteria are met. (Alliance
College-Ready Public Schools (2017) PERB Decision No. 2545, p. 13 (Alliance); State
of California (California Correctional Health Care Services) (2019) PERB Decision
No. 2637-S, p. 13.) “Under the unalleged violations doctrine, PERB has the discretion
to consider allegations not included in the charge or the complaint if: (1) the
respondent has had adequate notice and opportunity to defend against the unalleged
matter; (2) the unalleged conduct is intimately related to the subject matter of the
complaint and is part of the same course of conduct; (3) the matter has been fully
litigated; (4) the parties have had the opportunity to examine and be cross-examined
on the issue; and (5) the unalleged conduct occurred within the same limitations
period as those matters alleged in the complaint.” (Superior Court v. Public
Employment Relations Bd. (2018) 30 Cal.App.5th 158, 192-193.) Each factor is met
here, including because the Association put the District on notice that it considered
these e-mails protected during opening statements at the formal hearing, and the
parties fully litigated the pertinent issues.

21
The District advances two reasons why EERA does not protect Gibbons’s
May 4 and May 5 e-mails responding to the new Fall 2020 schedule. Primarily it
argues that Gibbons’s e-mails did not relate to her safety complaints as found by the
ALJ, but rather solely expressed concerns on behalf of employees in a different
bargaining unit. Further, the District argues it issued the memo “entirely because of
the disrespectful and insubordinate tone of [Gibbons’s] May 4 and May 5 [e-mail]
communications.”
We first find that Gibbons’s e-mails are protected as an extension of her earlier
safety complaints. Her statement in the May 4 e-mail in response to the change in her
and Firtha’s schedules that “once again, this feels like harassment” reiterated her
complaints about Brown’s reaction to her safety concerns in February and March.
Even were this not the case, the e-mails also contain protected advocacy on behalf of
adjunct faculty. Protected activity does not lose its protection under EERA merely
because the advocacy is on behalf of another bargaining unit. (See McPherson
v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 309-311.) Gibbons’s
e-mails clearly and directly criticized Brown with the purpose of advancing the
interests of adjunct faculty. EERA protects such speech even though the employees
for whom Gibbons advocated were in a different bargaining unit.
The District also argues that Gibbons’s e-mails are not protected because her
May 5 e-mail was insubordinate. EERA allows employee and union speech on
protected topics to be impulsive, intemperate, disparaging, or inaccurate, and thereby
engender ill feelings and strong responses, unless the employer meets its burden to
prove such speech was maliciously dishonest or so insubordinate, opprobrious, or

22
flagrant as to cause substantial disruption in the workplace. (Carpinteria, supra, PERB
Decision No. 2797, pp. 13-14, 16; Mt. San Jacinto Community College District (2018)
PERB Decision No. 2605, pp. 9-14; County of Riverside (2018) PERB Decision No.
2591, p. 9 (Riverside); Chula Vista Elementary School District (2018) PERB Decision
No. 2586, p. 16 (Chula Vista).) Where an employer claims that speech was so flagrant
or insubordinate15 as to disrupt operations, PERB conducts a fact-intensive inquiry
that considers all relevant circumstances, including but not limited to: (1) the place of
the discussion; (2) the subject matter of the discussion; (3) the nature of what
occurred; and (4) the extent to which the speech or conduct at issue can fairly be said
to have been provoked by the employer. (Carpinteria, supra, PERB Decision
No. 2797, p. 14.) When the speech at issue occurred by text message, e-mail, social
media, or in another manner that was not face-to-face, there tends to be less
likelihood of disruption. (Id. at p. 14, fn. 10.)
Each of these factors favor the protected nature of Gibbons’s May 4 and May 5
e-mails. Gibbons sent her concerns via e-mail where they were unlikely to cause
disruption. The subject matter was both the retaliatory reassignments and the change
in schedule that negatively affected both Gibbons and her adjunct coworkers.
Because the new schedule included changes to long-standing schedules, and to the
typical faculty input into such changes, they were likely to engender strong feelings.
The extent of Gibbons’s allegedly insubordinate tone, as described by Brown, were
15 Insubordination means an intentional refusal to follow directions. (Visalia
Unified School District (2022) PERB Decision No. 2806, p. 29 [judicial appeal
pending].) To prove insubordination, therefore, an employer must prove willfulness.
(Ibid.)

23
her purported assumptions that Brown misread the point of her e-mail, excluded the
logical point of curriculum, and failed to consider the COVID-19 struggles of part-time
faculty. None of these statements are insubordinate or disruptive on their face, or in
context. Finally, as we discuss post, the District’s conduct was unlawfully retaliatory,
and this unlawful conduct provoked Gibbons’s e-mails. The District cannot meet its
considerable burden to prove Gibbons’s e-mails lost protection.
C. 	Firtha’s Comments at the May 6 Academic Senate Meeting
The District alleges that EERA does not protect Firtha’s comments to the
Academic Senate because it was untrue that the District removed Gibbons and Firtha
as chairs in retaliation for their safety complaints. We again disagree. EERA protects
on its face Firtha’s communication to the Academic Senate that she and Gibbons lost
their chair positions in retaliation for safety complaints. (City of Santa Maria (2020)
PERB Decision No. 2736-M, p. 26 [finding a communication presumptively protected
where its central purpose was to apprise others of a workplace dispute and to enlist
their support].) If an employer challenges the accuracy of speech, the employer faces
a heightened burden, and it must prove by clear and convincing evidence that the
speech was maliciously false, meaning that the speaker either knew of its falsity or
recklessly disregarded whether it was true or false. (Riverside, supra, PERB Decision
No. 2591, pp. 9-10; Chula Vista, supra, PERB Decision No. 2586, pp. 16-17 & fn. 8.)
Gross or extreme negligence as to a statement’s truth does not rise to the level of
actual malice. (Riverside, supra, PERB Decision No. 2591-M, p. 9; Chula Vista, supra,
PERB Decision No. 2586, p. 17.) The District’s assertion that Brown believed Firtha’s
comments were untrue does not establish by clear and convincing evidence that

24
Firtha’s statements were maliciously false. It is more than enough that Firtha had a
good faith belief that her statements were true, and the District raises no evidence
suggesting otherwise. Further, as the ALJ found and as we affirm post, the
Association established by a preponderance of the evidence that what Firtha claimed
at the May 6 meeting was in fact true – the District removed Gibbons and Firtha as
chairs and ignored their reelection in retaliation for their protected activities. Firtha’s
comments at the May 6 Academic Senate meeting remain protected activity.
II. 	Adverse Action
PERB uses an objective test to determine whether an employer’s action is
adverse. (City of San Diego, supra, PERB Decision No. 2747-M, p. 27.) “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.” (Ibid.)
Context is highly relevant in determining whether non-punitive directives are adverse.
(Ibid.)
The District’s exceptions dispute that removing Gibbons and Firtha as chairs,
refusing to acknowledge their subsequent reelection as chairs, and placing Gibbons
and Firtha as Introductory Chemistry instructors on the Fall 2020 schedule are
adverse actions. As we explain, the District’s exceptions are not well-taken.
PERB has found that a reasonable employee would view the loss of
compensation, including paid release time, as an adverse action. (Fresno County
Office of Education (2004) PERB Decision No. 1674, pp. 13-14 [adverse action found
when it resulted in the loss of a preparation period during which a teacher did not have

25
normal teaching duties, but still received compensation].) Gibbons’s and Firtha’s
positions as Chemistry Department chairs included the opportunity for paid release
time and extra duty time that they lost when the District decided they would no longer
serve as chairs. While we leave to compliance the specific monetary value of this time,
it is clear that the change affected their compensation. PERB case law has also found
an adverse action when an employer strips an employee of duties. (San Diego Unified
School District (2019) PERB Decision No. 2683, pp. 9-10 [reassignment of a teacher
to a position without any duties was adverse even without a loss of pay or benefits].)
The Board has found the mere threat of assigning an employee to a position that was
“a step down” was adverse. (Trustees of the California State University (2009) PERB
Decision No. 2038-H, pp. 11-12.) Gibbons and Firtha, senior chemistry faculty
members, suffered a loss of compensation, prestige, and duties when the District
removed them from their departmental leadership positions via a department-wide
e-mail, and replaced them with Hartman without an Academic Senate election. A
reasonable employee serving as a department chair would find a public removal from
an elected and compensated position adverse.
The District’s failure to recognize Gibbons’s and Firtha’s subsequent re-election
as chairs was adverse for the same reasons. It deprived Gibbons and Firtha of
compensation, prestige, duties, and a voice in their working conditions which, by the
District’s usual practice, they would otherwise receive.
Gibbons’s and Firtha’s reassignment to Introductory Chemistry for the Fall 2020
schedule is a closer question. While the complaint described this course as “remedial”
chemistry, students typically took Introductory Chemistry as an introductory course for

26
non-science majors, a prerequisite for additional chemistry courses for students
without qualifying high school classes, or potentially as a remedial course if a student
was not succeeding in majors’ chemistry. Requiring employees to perform a known
less-desired assignment, which can include removing desired courses or assigning
undesired courses, is often objectively adverse. (Coachella Valley Unified School
District (2013) PERB Decision No. 2342, adopting proposed decision at p. 18; Newark
Unified School District (1991) PERB Decision No. 864, pp. 12-13.) Furthermore, the
record establishes that neither Gibbons nor Firtha had recently taught Introductory
Chemistry. While the new assignments may have decreased the variety of classes
they taught, moving from classes they had taught recently to classes they had not
taught for many years increased the amount of effort to prepare for each class.
Gibbons and Firtha also each testified that Introductory Chemistry significantly
increased the number of students they would teach each semester, which increased
their workload. That changes to the schedule typically happened in collaboration with
the department chairs, and by extension the faculty, but here happened without any
input save Brown’s, is further relevant to how it is objectively viewed: a reasonable
employee would find a unilateral assignment to teach unfamiliar classes with more
students to be adverse. (Woodland Joint Unified School District (1990) PERB Decision
No. 808, pp. 5-6 [verification of employee absence was objectively adverse where it
would reasonably be seen as sending a negative message about protected activity].)

27
III. 	Nexus
While PERB considers all relevant facts and circumstances in assessing an
employer’s motivation, we have identified the following factors as being the most
common means of establishing a discriminatory motive, intent, or purpose: (1) timing
of the employer’s adverse action in relation to the employee’s protected conduct;
(2) disparate treatment; (3) departure from established procedures or standards;
(4) an inadequate investigation; (5) a punishment that is disproportionate based on the
relevant circumstances; (6) failure to offer a contemporaneous justification, or offering
exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons;
(7) employer animosity towards union activists; and (8) any other facts that might
demonstrate the employer’s unlawful motive. (San Francisco, supra, PERB Decision
No. 2712-M, p. 21.)
The ALJ found sufficient evidence to establish nexus between Gibbons’s and
Firtha’s safety complaints and the removal of chair duties and Fall 2020 teaching
assignments through timing, departure from established procedures, and inadequate
investigation. We agree that the Association established nexus through timing and
departure from established procedures, as well as through other circumstantial and
direct evidence.
A. 	Timing
If an employer takes adverse action shortly after an employee’s protected
activities, this tends to suggest more strongly that the two are linked, and the inference
of discrimination weakens as the gap in time grows. (City of Santa Monica (2020)
PERB Decision No. 2635a-M, p. 45.) However, timing alone is typically not

28
determinative, and there is no bright line rule for determining how close in time the
protected activity must be to the alleged retaliatory conduct. (Id. at p. 46.) Thus, while
a charging party typically needs more than just timing evidence to prevail, if the timing
inference is weak a charging party will normally need to marshal a stronger array of
other, non-timing facts. (Ibid.)
Gibbons and Firtha communicated their safety complaints in late February, and
the District removed them as chairs on March 9. This timing of only a few weeks
between the protected activities and the adverse action strongly suggests unlawful
motive. It is true that Gibbons and Firtha had been advocating for lab safety and IA
staffing in various forms since at least 2018. If an employee engages in protected
activity for a long period of time and the employer only takes adverse action toward
the end of this time frame, PERB assesses whether animus built over time, or the
employer lacked earlier opportunities to engage in such action. (City of Santa Monica,
supra, PERB Decision No. 2635a-M, pp. 46-47.) Here, the record shows Brown’s
animus progressively increased. Brown’s e-mail immediately following his removal of
Gibbons and Firtha references that he “regret[s] that our working relationship has
reached this point”, calls the removal a “last resort,” and notes his belief that the
department cannot function “when chairs and deans are completely at odds”. This
phrasing suggests his frustration with Gibbons’s and Firtha’s dogged pursuit of safety
complaints built over time and came to a head in early March 2020.16
16 While the District asserts that these statements were solely in response to
Gibbons’s and Firtha’s refusal to attend Brown’s requested March 9 meeting, as we
explain post, the District failed to prove that this was the true reason for its actions.

29
Brown’s April 3 decision not to honor the faculty election was likewise close
enough in time to support a finding of unlawful motive, occurring within two months of
Gibbons’s and Firtha’s protected activity. Further, Brown wrote that it was “for [the]
reasons expressed earlier this semester. My decision on this still stands.” This
suggests it was merely a continuation of his earlier decision to remove Gibbons and
Firtha as chairs.
Likewise, the April 22 announcement of the Fall 2020 scheduling changes was
only two months after Gibbons’s and Firtha’s safety complaints. Brown admitted that
he made the decision to place Gibbons and Firtha as instructors in introductory
classes “close in time to when they were announced.” While the record shows that the
District had considered changes to the structure of the Chemistry Department
schedule beginning earlier in the 2019-2020 school year, the decision to change
Gibbons’s and Firtha’s assignments did not happen until after their critical protected
activities. The confluence of these events over the course of two months strongly
supports unlawful motive.
B. 	Departure from Established Procedures
The Board finds departure from established procedures when an employer
takes an adverse action in a way that is inconsistent with the way it normally goes
about doing so. (Lake Elsinore Unified School District (2019) PERB Decision
No. 2671, p. 7.) We may infer unlawful motive from a respondent’s departure from
existing practices in its dealings with the charging party. (Garden Grove Unified
School District (2009) PERB Decision No. 2086, adopting dismissal letter at p. 4.) To
establish such an inference, the charging party must demonstrate what the

30
respondent’s practice is and how the respondent deviated from that practice. (Ibid.;
Los Angeles Unified School District (2014) PERB Decision No. 2390, pp. 11-12 &
adopting proposed decision at p. 16.) The ALJ found that Brown departed from
established procedures by appointing a replacement Chemistry Department chair and
by refusing to recognize Gibbons and Firtha when the faculty subsequently reelected
them as chairs. The District excepted to these findings, arguing that the record did not
support that the District departed from established procedures; while the failure to
recognize Gibbons’s and Firtha’s reelection was unique, it was not unprecedented.
We find the District departed from established procedures in several ways when
it removed Gibbons and Firtha as chairs, refused to recognize their reelection, and
assigned them to Introductory Chemistry for Fall 2020. First, the Association
presented uncontradicted evidence that, to the extent the District removed another
department chair in recent memory, the chair and the District mutually agreed that the
faculty member would not continue to serve as chair. In contrast, Brown unilaterally
removed Gibbons and Firtha without notice.
The District’s subsequent appointment of Hartman to take over the chair duties
was likewise out of the norm. In past instances where the District removed a
department chair, the District did not replace the chair. In the two examples in the
record, the District administrator simply took on the coordinating and scheduling
responsibilities of the department chair until the faculty conducted a new election.
We also find that the District departed from its usual procedure when it failed to
recognize Gibbons and Firtha as chairs after the faculty subsequently reelected them.
The Association established that the District’s long-time practice included the Vice

31
President for Instruction honoring the results of the Academic Senate elections for
department chairs.17 While the District emphasizes that Brown as the Vice President of
Instruction had the right to approve or deny an elected chair, the evidence reflects that
in practice, the Vice President of Instruction honored the Academic Senate elections.
That Brown treated Gibbons and Firtha differently further supports our finding of District
unlawful motive.
The District also departed from its typical procedures in the Chemistry
Department course assignments for Fall 2020, both in the process of making the
assignments and the nature of the assignments themselves. While typically the Vice
President of Instruction developed the schedules in collaboration with the
departmental dean and the department chairs, Brown developed and decided on the
Fall 2020 Chemistry Department schedule all on his own. Though not involving
Gibbons and Firtha in the development of the schedule was a natural consequence of
their removal as chairs, the District offers no explanation for why neither Donnhauser
nor the appointed chair Hartman were involved. Further, in Brown’s May 6 e-mail to
Gibbons, he stated the Fall 2020 schedule was “a major departure from past
scheduling practice of the [C]hemistry [D]epartment.” The District’s departure from the
norm in developing the Fall 2020 schedule serves as evidence that the District
changed the Chemistry Department schedules for retaliatory reasons.
17 The District argues that the record includes precedent for its failure to
recognize a chair election, but those instances, where a chair vacated their position by
mutual agreement with the District, are distinguishable from the instant circumstances.

32
C. 	Other Facts Relevant to Motive
We also find it relevant that Brown removed Gibbons and Firtha from their chair
positions, without notice, warning, or progressive discipline, for a single alleged act of
insubordination and despite significant mitigating circumstances. First, while Brown
accused them of refusing meetings in the past in his March 8 e-mail, the record does
not establish those accusations.
Second, one cannot ignore the context. In Fall 2018, there were two lab
explosions and two chemical fires in the department. Gibbons and Firtha believed that
significant steps were needed to make their own working conditions safe, as well as to
assure other staff and student safety.18 Gibbons and Firtha repeatedly sought
administrators’ help, including meeting with both Brown and Donnhauser. These
efforts reflect a sincere attempt to solve the problem. When Brown announced a
meeting via his March 5 e-mail, he mislabeled the date of the meeting and neither
inquired about the professors’ availability nor indicated any flexibility. Gibbons, in
e-mailing to say that she and Firtha would not be attending, expressed that they were
consulting legal counsel. Given these mitigating circumstances, it is apparent that
Gibbons and Firtha were exercising their right to self-representation on a workplace
issue they considered critical, and removing them as department chairs for missing a
single, hastily-scheduled meeting without asking them their availability reflects a
disproportionate response to the circumstances, which again supports unlawful
18 A lab fire at another Southern California college in 2008 killed a research
assistant and led to criminal prosecution of a college professor.
(https://www.latimes.com/local/lanow/la-me-ln-ucla-professor-avoids-prison-fatal-lab-
fire-20140620-story.html [as of June 27, 2023].)

33
motive.19 (See Regents of the University of California, supra, PERB Decision
No. 2704-H, pp. 39-40.)
Third, the CBA includes a specific process for evaluating department chairs and
for removing an underperforming department chair after giving them a semester to
improve. The parties negotiated Article XI, section (D) in part because the District
expressed that having a method to remove a department chair was a priority. That
provision for removal includes regular evaluations, and provides in part “[a] rating of
unsatisfactory may result in the removal of department chair duties from the Unit
Member.” Yet the District made no attempt to utilize the CBA process to evaluate
Gibbons’s or Firtha’s performance or provide them the required semester to improve,
and instead escalated from the direction to attend the meeting to unilateral removal of
both from their chair positions over a single weekend.20
19 When Gibbons indicated in the early hours of Monday that Firtha had a time
conflict, Brown presumptuously declared that Firtha attending a virtual conference
would not conflict with Brown’s unilaterally chosen meeting time. Given the significant
timeframe over which Gibbons and Firtha had been seeking to improve lab safety, the
record simply does not support Brown’s repeated insistence between Sunday evening
and Monday morning that Gibbons and Firtha attend the Monday morning meeting,
even before consulting their legal counsel and despite Firtha’s scheduling conflict.
20 Article XI(D)’s procedures for evaluating and removing department chairs
were part of the CBA effective July 1, 2017. While the District argues that the parties
intended to negotiate an evaluation tool for department chairs during the term of the
2017-2020 CBA, Article XI contains no language permitting the District to disregard
the CBA’s evaluation and due process requirements pending such negotiations.
Absent any such qualifier, Article XI(D) was in effect when Brown suddenly removed
Gibbons and Firtha nearly three full years into the 2017-2020 CBA. It is therefore not
tenable for the District to claim that it had total discretion to remove department chairs
under any procedure it wanted (or no procedure at all). Precipitously removing

34
D. 	Direct Evidence
In addition to a variety of circumstantial nexus evidence, the ALJ also found that
the content of Gibbons’s May 6 counseling memo and Firtha’s May 6 admonishment,
as well as the acts of their issuance, constituted direct evidence that the District was
unlawfully motivated by protected activity. “Where the employer’s words or actions
reveal that the adverse action was taken in response to the employee’s protected
activity, such conduct serves as direct evidence of unlawful motive.” (Chula Vista,
supra, PERB Decision No. 2586, p. 26.) The District issued Gibbons the May 6
counseling memo and Firtha the May 6 admonishment in direct response to protected
speech. We thus have no difficulty affirming the ALJ’s conclusion that the Association
demonstrated sufficient nexus between Gibbons’s and Firtha’s protected activities and
the May 6 counseling memo and May 6 admonishment to establish a prima facie case
of retaliation.
Taking together the variety of circumstantial evidence of the District’s unlawful
motivation, and the direct evidence that the May 6 counseling memo and May 6
admonishment were issued explicitly in response to protected activity, we find that the
Association established a nexus between Gibbons’s and Firtha’s protected activities
and the District’s adverse actions of removing Gibbons and Firtha as chairs of the
Chemistry Department, refusing to recognize their subsequent reelection as chairs,
reassigning them to teach lower level classes for the Fall 2020 semester, and issuing
Gibbons and Firtha without evaluation and a chance to improve constitutes strong
evidence of retaliation for protected activity.

35
each a counseling document. The Association thus established its prima facie case of
retaliation for each of these allegations.
IV. 	Affirmative Defense
If a charging party establishes a prima facie case of retaliation, and the
evidence also reveals a non-discriminatory reason for the employer’s decision, the
respondent may prove, by a preponderance of the evidence as an affirmative defense,
that it would have taken the exact same action even absent protected activity. (San
Francisco, supra, PERB Decision No. 2712-M, p. 15.) 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.) To make this determination, we
weigh the evidence supporting the employer’s justification for the adverse action
against the evidence of the employer’s unlawful motive. (Los Angeles County Superior
Court (2018) PERB Decision No. 2566-C, p. 19; Rocklin Unified School District (2014)
PERB Decision No. 2376, p. 14; Palo Verde Unified School District (2013) PERB
Decision No. 2337, p. 33.) As a result, the outcome of a discrimination or retaliation
case ultimately is determined by the weight of the evidence supporting each party’s
position. (See Novato, supra, PERB Decision No. 210, p. 14 [“[a]fter all the evidence is
in, it is a question of the sufficiency of the proof proffered by the various parties”].)
Even direct evidence of unlawful motivation does not bar a respondent from proving
that an employee’s protected activity was not the true motivation for its action.
(Regents of the University of California (2012) PERB Decision No. 2302-H, p. 4.)
The District asserts that it established an affirmative defense to the five adverse
actions against Gibbons and Firtha. We address each in turn.

36
The District argues that it removed Gibbons and Firtha as chairs solely based
on their allegedly insubordinate refusal to meet with Brown. We reject that argument
for all the reasons noted above. Moreover, while Brown asserted that the sole reason
for the removal was the refusal to meet at 11:00 a.m. on Monday, March 9, the weight
of evidence shows that Brown was retaliating for a series of protected acts. For one,
Brown’s e-mail six minutes after removing Gibbons and Firtha as Chemistry
Department chairs stated that he did so as a “last resort,” and he described their
relationship as “completely at odds.” This points to an ongoing dispute. The record
conclusively establishes this ongoing dispute: Gibbons’s and Firtha’s repeated
attempts to address lab safety and related staffing concerns.
The District insists the record evidence shows that “the [C]hemistry
[D]epartment cannot function if its department chairs flatly refuse to meet with
administration.” But in his March 9 e-mail at 7:54 a.m., Brown contradicted any urgent
need for someone to complete department chair duties, stating that:
“[a]s you have already completed the work of scheduling for
the current semester and have done much of the
department coordination, this will not impact your teaching
load or pay for the Spring 2020 semester. Going forward,
the deans and director of instructional labs will
communicate directly with each faculty member and IA staff
regarding matters of their own classrooms . . . ”
Thus, at the time the District removed Gibbons and Firtha as chairs, Brown indicated
that the Chemistry Department could continue to function without a department chair.
Brown did not appoint Hartman to fill the position until nine days later, on March 18.
Brown’s subsequent actions undercut the District’s justifications for quickly removing
Gibbons and Firtha as chairs, without first allowing them to meet with legal counsel,

37
much less evaluating progressive discipline options, using the CBA provision on
department chair evaluations, or warning Gibbons and Firtha that their chair positions
were in danger should they not reschedule the meeting for later in the week.21
The District further argues that Brown’s decision on March 9 to remove Gibbons
and Firtha as chairs justified subsequently denying their reelection. The motive for
denying Gibbons’s and Firtha’s reelection is inextricable from their removal a month
prior. Because we find the District failed to prove its legitimate business justification for
the initial removal, the same justification for the denied reelection also fails.
The District argues that, well before removing Gibbons and Firtha from their
department chair positions, it engaged in a lengthy, objective review of student
outcomes in the Chemistry Department that served as the basis for assigning Gibbons
and Firtha new courses. But Brown contradicted this explanation when he confirmed
that he first arrived at the idea of reassigning Gibbons and Firtha to Introductory
Chemistry close to the time that he e-mailed a departmental announcement of those
reassignments on April 22. Furthermore, the District’s justification is also at odds with
Brown’s March 9 e-mail statement that “Fall 2020 schedules will be developed in
direct conversation between deans and faculty.” Brown’s e-mail corroborates his
21 The ALJ did not address one way or the other whether Gibbons or Firtha was
insubordinate in refusing to attend the meeting, but rather found that the alleged
insubordination was pretext for the District’s unlawful retaliation. The parties’
arguments do not specifically ask us to determine whether refusing the meeting was
sufficient to constitute insubordination. (See Visalia Unified School District, supra,
PERB Decision No. 2806, p. 29.) In any case, we need not answer this question,
because whether the refusal constituted insubordination or not, the District took the
drastic step of removing Gibbons and Firtha from their chair positions in retaliation for
protected activity.

38
testimony that the District developed the Fall 2020 Chemistry Department schedule
after March 9.
Brown’s admissions at hearing also undercut the rationale that the District
reassigned Gibbons and Firtha to improve student achievement. Brown justified the
changes represented in the Fall 2020 schedule by stating he believed the District
could improve student outcomes by reassigning faculty to single subjects, thus freeing
up preparation time and mental “bandwidth” so that the chemistry faculty could better
focus on how to improve student outcomes. But Brown also testified that in his Fall
2020 reassignment decisions, he never fully considered or investigated how the
reassignments would impact faculty workload, or how a professor’s specific
qualifications, experience or knowledge in the reassigned subject could impact student
outcomes. The ALJ correctly concluded that the District did not prove it would have
reassigned Gibbons and Firtha to Introductory Chemistry absent their protected
activity.
Finally, while the District claims that it had legitimate, nondiscriminatory reasons
for issuing Gibbons’s May 6 counseling memo and Firtha’s May 6 admonishment, in
reality the District merely reiterates its argument that these adverse actions responded
to allegedly unprotected activities. Having disposed of that argument ante, we find the
District failed to meet its burden to prove it would have issued either document absent
Gibbons’s and Firtha’s protected conduct.
We therefore find that the District retaliated against Gibbons and Firtha for their
protected conduct by removing them as chairs, refusing to recognize their subsequent
reelection, assigning them to teach Introductory Chemistry in Fall 2020, and issuing

39
the May 6 counseling memo and May 6 admonishment. By this same conduct, the
District derivatively interfered with the rights of bargaining unit employees to be
represented by the Association in violation of section 3543.5, subdivision (a) and
derivatively denied the Association its right to represent bargaining unit employees in
violation of section 3543.5, subdivision (b).
V. 	Remedy
The Legislature has vested PERB with broad authority to decide what remedies
are necessary to effectuate the purposes and policies of EERA and the other acts we
enforce. (EERA, § 3541.5, 1st par. & subd. (c); Mt. San Antonio Community College
Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189.) PERB
remedies must serve the dual purposes of compensating for harms that an unfair
practice causes and deterring further violations. (County of San Joaquin v. Public
Employment Relations Bd. (2022) 82 Cal.App.5th 1053, 1068; The Accelerated
Schools (2023) PERB Decision No. 2855, p. 16 (Accelerated Schools); Bellflower
Unified School District (2022) PERB Decision No. 2544a, p. 26.) Our de novo review
on exceptions to a proposed decision includes review of the proposed remedy.
(Accelerated Schools, supra, PERB Decision No. 2855, pp. 16-31).)
The District excepts to two alleged errors in the remedial order: (1) that there
should be no order to remove the May 6 counseling memo and the May 6
admonishment from Gibbons’s and Firtha’s respective personnel files because the
record demonstrates that both documents were removed from the personnel files
before the hearing; and (2) that no back pay is warranted because the record did not
conclusively establish that Gibbons or Firtha actually suffered any loss in pay, and the

40
compensation for chair duties was provided in release time, not pay. The District’s
exceptions are without merit. We explain and supplement the remedial order to fully
remedy the proven harms.
First, while the record indicates that the District removed the May 6 counseling
memo and May 6 admonishment from Gibbons’s and Firtha’s official personnel files
prior to the hearing, Stokes confirmed that the District also maintains several
suspense files where the documents may remain. The ALJ ordered that the District
should both remove and destroy these documents. We order that the District must
remove the documents from all District files in which they may remain, and
subsequently destroy all copies.
Next, we agree with the ALJ that backpay with interest is the appropriate make
whole remedy for Gibbons’s and Firtha’s loss of chair positions. An unfair practice
finding creates a presumption that employees suffered some financial loss as a result
of the employer’s unlawful conduct. (Bellflower Unified School District (2019) PERB
Order No. Ad-475, p. 10; Desert Sands Unified School District (2010) PERB Decision
No. 2092, pp. 31-32.) Consistent with the presumption, it is appropriate to give the
Association an opportunity to establish in compliance proceedings that Gibbons and
Firtha suffered a financial loss due to their removal as chairs. While the record did not
conclusively establish the monetary value of the release time and extra duty pay
provided as compensation for chair duties in the parties’ CBA, the Association will
have an opportunity to establish its value and related losses in compliance. (See, e.g.,
Desert Sands Unified School District, supra, PERB Decision No. 2092, pp. 31-32
[allowing charging party an opportunity to establish in compliance proceedings that

41
bus drivers actually lost pay because of the district’s unlawful contracting out of field
trip work when the record did not contain information demonstrating a financial
impact].)22
Finally, we correct an error in the ALJ’s remedy for Gibbons’s and Firtha’s
removal as chairs, and we order an additional related remedy. The ALJ ordered the
District to “[r]eturn Gibbons and Firtha to their positions as co-chairs unless the
position or positions are currently held by an elected faculty member, in which case
that chair may finish their term at which point Gibbons and Firtha may compete to be
elected chairs and the District must recognize Gibbons and Firtha as chair/co-chairs if
either or both are elected by the faculty.” In justifying this order, the ALJ noted that
“[t]hough Hartman was innocent, Brown appointing him – rather than him being
elected by the faculty – was not. Thus, if Hartman is still chair, his appointment is void
and Gibbons and Firtha shall be returned to their positions. But if the faculty has since
elected a chair, that chair will remain to finish their term at which point Gibbons and
Firtha may compete to be elected chairs.” However, the record reflects that the
chemistry faculty elected Hartman as Chemistry Department co-chair for the Menifee
Valley campus in April 2020 when Brown refused to recognize Gibbons’s and Firtha’s
reelection, therefore whether he or another currently holds the chair or co-chair
positions, it is via election rather than Brown’s placement.
22 After this decision is no longer subject to appeal, a compliance officer shall
undertake a compliance process to determine, among other things, the damages
owed. During the compliance process, the parties typically supplement the record
through one or more means, subject to the compliance officer’s direction. (Bellflower
Unified School District, supra, PERB Decision No. 2544a, pp. 7-15; Bellflower Unified
School District (2021) PERB Decision No. 2796, pp. 20-22.)

42
We agree with the ALJ’s assessment that Gibbons’s and Firtha’s lost chair
positions are similar in one respect to failure-to-promote cases, where PERB often
prefers not to remove an innocent incumbent in favor of a discriminatee. (See State of
California (Correctional Health Care Services) (2021) PERB Decision No. 2760-S,
p. 42.) We thus limit the status quo remedy to ordering the District to allow Gibbons
and Firtha to compete in future chair elections, and to subsequently honor the results
of those elections. But because that remedy does not fully restore the status quo, and
particularly because the District’s pervasive retaliatory conduct has likely harmed
Gibbons’s and Firtha’s reputations in a way which may impact their ability to compete
in future chair elections, we supplement the remedy to include a verbal reading of the
notice posting by a District representative to those District employees in Gibbons’s
and Firtha’s bargaining unit.
A spoken notice reading is one example of a non-standard remedy that is
warranted “whenever customary remedies are insufficient.” (Regents of the University
of California (2021) PERB Decision No. 2755-H, p. 56.) In the past, the Board has
twice decided against ordering spoken notice. (County of San Joaquin (Sheriff’s
Department) (2018) PERB Decision No. 2619-M, p. 14, fn. 14; Alliance, supra, PERB
Decision No. 2545, pp. 17-18.) Here, however, declining to reinstate Gibbons and
Firtha as chairs—out of concern for innocent incumbents—could leave employees
chilled by Brown’s retaliatory acts. This case therefore calls for a non-standard
remedy. “Notice reading is a way to let in a ‘warming wind of information’ to not only
alert employees to their rights but also impress upon them that, as a matter of law,
their employer or union must and will respect those rights in the future. Reading the

43
notice (and any explanation of rights) aloud disseminates that information through the
work force in a clear and effective way.” (Noah’s Ark Processors, LLC D/B/A WR
Reserve (2023) 372 NLRB 80, p. 6, citations omitted.)23
Such an order is needed here to blunt the impact of the District’s unlawful
conduct, which may otherwise persist to some degree through any subsequent
Chemistry Department chair election. We stop short in these circumstances from
ordering a particular reader of the Notice, but we direct that the District shall conduct
the reading in a manner designed to reach the most employees possible, and that the
District shall allow an Association representative to be present.
ORDER
Based upon the foregoing factual findings and legal analysis, and the record in
this case, the Public Employment Relations Board (PERB) finds that Mt. San Jacinto
Community College District (District) violated the Educational Employment Relations
Act (EERA), Government Code section 3540 et seq., by retaliating against Rosaleen
Gibbons and Farah Firtha for engaging in protected activities. By this conduct, the
District also interfered with the rights of bargaining unit employees to be represented
23 Although California public sector labor relations precedent frequently protects
employee and union rights to a greater degree than does federal precedent governing
private sector labor relations, PERB considers federal precedent for its potential
persuasive value. (Operating Engineers Local Union No. 3 AFL-CIO (Wagner et
al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10; City of Santa Monica, supra,
PERB Decision No. 2635a-M, p. 47, fn. 16; City of Commerce (2018) PERB Decision
No. 2602-M, pp. 9-11.) As noted, PERB’s touchstone in assessing non-standard
remedies is whether customary remedies are adequate. While this standard overlaps
with the National Labor Relations Board’s approach, it may or may not turn on the
severity of the violation.

44
by the Mt. San Jacinto College Faculty Association (Association) and denied the
Association its right to represent bargaining unit employees in violation of EERA
sections 3543.5, subdivisions (a) and (b).
Pursuant to sections 3541.3, subdivisions (i) and (n), and 3541.5, subdivision
(c) of the Government Code, we hereby ORDER that the District’s governing board
and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against employees for engaging in protected activities.
2. 	Interfering with the rights of bargaining unit employees to be
represented by the Association.
3. 	Denying the Association its right to represent bargaining unit
employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF EERA:
1. 	Remove from all files and destroy Gibbons’s May 6, 2020
counseling memo and all electronic or paper versions or copies thereof.
2. 	Remove from all files and destroy Firtha’s May 6, 2020
admonishment and all electronic or paper versions or copies thereof.
3. 	Make Gibbons and Firtha whole, including but not limited to
paying them back pay for lost release time and extra duty pay, plus seven percent
interest.
4. 	Allow Gibbons and Firtha to compete to be elected Chemistry
Department chairs, at their option, in the next Academic Senate election and all

45
subsequent elections. If either or both are elected by the faculty, the District must
recognize Gibbons and/or Firtha as chair/chairs.
5. 	Within 10 workdays after this decision is no longer subject to
appeal, post at all work locations where notices to Association-represented employees
are posted, copies of the Notice attached hereto as an Appendix. The Notice must be
signed by an authorized agent of the District, indicating that the District will comply
with the terms of this Order. Such postings shall remain in place for a period of 30
consecutive workdays. The District shall take reasonable steps to ensure that the
Notice is not altered, defaced, or covered with any other material. In addition to
physically posting this Notice, the District shall post it by electronic message, intranet,
internet site, and other electronic means the District uses to communicate with
Association-represented employees.24
6. 	Within 60 workdays after this decision is no longer subject to
appeal, or, at the request of the Association, to coincide with the beginning of the
semester, hold a meeting or meetings, scheduled to ensure the widest possible
attendance, at which the attached Notice (the Appendix) is to be read aloud to
Association-represented employees in Gibbons’s and Firtha’s bargaining unit. An
Association representative shall be allowed to attend the meeting or meetings.
24 Either party may ask PERB’s Office of the General Counsel (OGC) to alter or
extend the posting period, require further notice methods, or otherwise supplement or
adjust this Order to ensure adequate notice. Upon receipt of such a request, OGC
shall solicit input from all parties and, if warranted, provide amended instructions to
ensure adequate notice.

46
7. 	Notify OGC of the actions the District has taken to follow this
Order by providing written reports as directed by OGC and concurrently serving such
reports on the Association.
Chair Banks and Member Krantz joined in this Decision.

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. LA-CE-6583-E, Mt. San Jacinto
College Faculty Association v. Mt. San Jacinto Community College District, in which
all parties had the right to participate, it has been found that the Mt. San Jacinto
Community College District (District) violated the Educational Employment Relations
Act (EERA), Government Code section 3540 et seq., by retaliating against Rosaleen
Gibbons and Farah Firtha for engaging in protected activities. By this conduct, the
District also interfered with the rights of bargaining unit employees to be represented
by the Mt. San Jacinto Faculty College Association (Association) and denied the
Association its right to represent bargaining unit employees.
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against employees for engaging in protected activities.
2. 	Interfering with the rights of bargaining unit employees to be
represented by the Association.
3. 	Denying the Association its right to represent bargaining unit
employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF EERA:
1. 	Remove from all files and destroy Gibbons’s May 6, 2020
counseling memo and all electronic or paper versions or copies thereof.
2. 	Remove from all files and destroy Firtha’s May 6, 2020
admonishment and all electronic or paper versions or copies thereof.
3. 	Make Gibbons and Firtha whole, including but not limited to
paying them back pay for lost release time and extra duty pay, plus seven percent
interest.
4. 	Allow Gibbons and Firtha to compete to be elected Chemistry
Department chairs, at their option, in the next Academic Senate election and all

2
subsequent elections. If either or both are elected by the faculty, we will recognize
Gibbons and/or Firtha as chair/chairs.
Dated: _____________________ 	MT. SAN JACINTO COMMUNITY COLLEGE
DISTRICT
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.