Marin County Law Library (PERB 1655M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ELIZABETH GEISMAR,
Charging Party,
V.
MARIN COUNTY LAW LIBRARY,
Respondent.
Case No. SF-CE-159-M
PERB Decision No. 	1655-M
July 	2, 	2004
Appearances: 	James Baker, Labor Relations Specialist, for Elizabeth Geismar; Murchison &
Cumming by Michael B. Lawler and Ronda Crowley, Attorneys, for Marin County Law
Library.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on appeal of a Board agent's dismissal ( attached) of Elizabeth Geismar' s ( Geismar)
unfair practice charge. 	The charge alleged that the Marin County Law Library violated the
Meyers-Milias-Brown Act (MMBA) 1 in terminating Geismar.
After review of the entire record in this case, including the unfair practice charge,
amended charge and response, the appeal and the Marin County Law Library's response to the
appeal, the Board finds the unfair practice charge must be dismissed for failure to state a prima
facie case . The Board hereby adopts the warning and dismissal letters of the Board agent as
its own.
1The MMBA is codified at Government Code section 3 500, et seq.

ORDER
The unfair practice charge in case No. SF-CE-159-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
2

't
STATE OF CALIFORNIA
	mLD
SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
March
1,
2004
James Baker, Labor Relations Specialist
114 Mono A venue
Fairfax, CA 94930
Re: 	Elizabeth Geismar
v.
County
of
Marin (Law Library)
Unfair Practice Charge No. SF-CE-159-M; First Amended Charge
DISMISSAL LETTER
Dear Mr. Baker:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 16, 2004. Elizabeth Geismar alleges that the County
of
Marin (Law Library) violated the Meyers-Milias-Brown Act (MMBA)1 by terminating her
employment.
I indicated to you in my attached letter dated January 29, 2004, that the above-referenced
charge did not state a prima facie case. You were advised that,
if
there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to February 5, 2004, the charge would be
dismissed.
On February 4, 2004, I received a first amended charge. The amended charge contends that
Ms. Geismar's termination violated several provisions
of
the Business and Professions Code,
as well as Government Code sections 3505 and 3506. As PERB lacks jurisdiction over
allegations
of
the Business and Professions Code, this letter will address only the allegations
that the Library terminated Ms. Geismar's employment because
of
her protected activity and
that the Library violated its local rules by having only five members on its Board
of
Trustees.
Ms. Geismar was employed by the Marin County Law Library as an Assistant Librarian. Ms.
Geismar held this position for fifteen (15) years until her termination on July 2, 2003. The
Marin County Law Library is not an agency
of
the County
of
Marin, but is instead, a separate
and distinct public agency with its own Board of Trustees. As such, Ms. Geismar's
employment is not guided by the rules and regulations of employment by the County, but by
the Law Library's Employment Policies and those state laws governing at-will employment.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-159-M
March 1, 2004
Page2
In
June 2000, Hal Aigner was hired as the Library's Director, with the approval
of
the only two
other employees
of
the library, Ms. Geismar and Pat Pal. Ms. Geismar asserts that in April
2001, Mr. Aigner began demonstrating "hostility" to her. In April 2001, Ms. Geismar
met
with
Mr. Aigner about
her job
responsibilities and his performance expectations. Also in attendance
at the meeting were fellow employee Pat Pal and local attorney Margaret Littlefield.
	At
this
meeting, Mr. Aigner promised to set forth the Personnel Rules for the Library. Apparently,
Mr. Aigner prepared a draft
of
these policies but the policy was never formally adopted
by
the
Trustees.
In March 2002, Ms. Pal resigned her employment with the Library. Ms. Geismar asserts Ms.
Pal resigned because Mr. Aigner had shown her hostility as well. Shortly after Ms.
Pal
resigned, Ms. Geismar spoke with Mr. Aigner about Ms.
Pal's
resignation. It appears Ms.
Geismar accused Mr. Aigner
of
forcing Ms. Pal to resign. Mr. Aigner became angry
at
this
accusation and Ms. Geismar left the meeting in fear.
Ms. Geismar asserts that in the fall
of
2002, Mr. Aigner and new employee Susan Sharpley
began a campaign
of
surveillance on Ms. Qeismar. Purported excerpts from Ms. Geismar's
personnel file indicate that on a number
of
occasions, Ms. Sharpley reported allegedly
inappropriate
or
suspicious behavior
by
Ms. Geismar.
On November 18, 2002, Ms. Geismar sent a memo to Mr. Aigner regarding her job
assignments. The letter stated as follows:
As you will recall, approximately nearly two years ago, along
with attorney Margaret Littlefield and Patricia Powell, we met to
discuss
my
duties at MCLL. During that discussion you agreed
that I would continue to work at the front desk as I have done for
the past 17 years.
On at least two occasions, I have had to write you memos to
document that when I come to work at the front desk you had
assigned Sue to work there at my allotted time.
Subsequently, you again agreed to assign me to work the front
desk on Mondays and Fridays. Contrary to our agreement, this
morning when I promptly arrived to work, I found that you had
again assigned Sue to work the front desk.
This turn
of
events baffles me. Please explain why you assigned
Sue to work at the front desk when you had agreed to assign me
that task on Mondays and Fridays.

SF-CE-159-M
March
1,
2004
Page 3
During the fall
of
2002 and early 2003, Ms. Geismar complained about her employment with a
number
of
patrons at the Library. However, there are no facts demonstrating these patrons
ever informed Mr. Aigner
of
Ms. Geismar's complaints.
In February 2003, Ms. Geismar received a letter from Mr. Aigner which stated in relevant part
as follows:
1.
With an eye towards the professional atmosphere
of
the
Library, Posie Conklin, the Library's Board President, has
directed that I ask you to:
A. Remove the art work and other materials from the book cart;
B. Complete accessioning (sic) the staff room, as has been the
previous practice for so many years.
On May 15, 2003, Mr. Aigner agreed to Ms. Geismar's request for a scheduling change.
On June 20, 2003, Library Director Hal Aigner issued Ms. Geismar a notice
of
termination.
The termination letter did not provide Ms. Geismar with a reason for her termination.
	On
June
23, 2003, Ms. Geismar hand-delivered a letter to Mr. Aigner, asking for the reason behind her
termination. On June 25, 2003, Ms. Geismar sent Mr. Aigner another letter regarding
hertermination.
On August 1, 2003, Mr. Aigner sent Ms. Geismar another letter regarding her termination.
This letters stated in relevant part as follows:
After several months
of
inquiry and deliberation, the decision to
approve termination
of
your employment with the Library was
reached due to a continuing course
of
conduct that had become
increasingly incompatible with Library operations as needs
increase for the Library to become more technologically oriented
and to serve broader, more diverse populations.
Shortly after her termination, Ms. Geismar retained the services
of
Labor Relations Specialist
James Baker. On August 29, 2003, Mr. Baker filed an appeal
of
Ms. Geismar's termination
with the Library's Board
of
Trustees. The appeal argued Ms. Geismar was technologically
proficient and thus should not have been terminated. The appeal also argued Mr. Aigner was
favoring some employees over others.
Based on the above stated facts, and those provided in the original charge, the charge still fails
to state a prima facie violation
of
the MMBA, for the reasons provided below.
To establish a prima facie case of discrimination in violation of Government Code section
3506 and PERB Regulation 32603(a), the charging party must show that: (1) the employee
exercised rights under MMBA; (2) the employer had knowledge of the exercise of those rights;

SF-CE-159-M
March
1,
2004
Page 4
and (3) the employer imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained
or
coerced the employee because
of
the
exercise
of
those rights. (Campbell Municipal Employees Association
v.
City
of
Campbell
(1982)
131
Cal.App.3d 416 (Campbell); San Leandro Police Officers Association
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor, it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action in protected conduct. (Moreland
Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following nexus factors should be present: (1) the employer's disparate treatment
of
the
employee (Campbell, supra); (2) the employer's departure from established procedures and
standards when dealing with the employee (San Leandro Police Officers Association, supra.);
(3) the employer's inconsistent or contradictory justifications for its actions (San Leandro
Police Officers Association, supra.); (4) the employer's cursory investigation
of
the employee's
misconduct; (5) the employer's failure to offer the employee justification at the time it took
action or the offering
of
exaggerated, vague, or ambiguous reasons; or (6) employer animosity
towards union activists (San Leandro Police Officers Association, supra; Los Angeles County
Employees Association
v.
County
of
Los Angeles (1985) 168 Cal.App.3d 683.).
Herein, you contends Ms. Geismar engaged in protected activity when she complained about
Ms. Powell's resignation, discussed her job concerns with patrons
of
the library, redecorated
her shelving cart, asked for a job description in April 2001 and requested a schedule change.
However, none
of
these activities rise to the level
of
protected activity under the MMBA, or
any
of
its parallel statutes.
The MMBA provides employees with the right to self representation. (Gov. Code sec. 3502.)
With regard to self representation, PERB has held that an individual employee engages in
protected activity when he or she complains about unsafe working conditions or large class
sizes. (Pleasant Valley School District (1988) EPRB Decision No. 708; Livingston Union
School District (1993) PERB Decision No. 965.) However, decorating a library cart with
artwork, asking for a job description and requesting a schedule change do not constitute
protected activities. Finally, while complaining to patrons about working condition may
constitute protected activity, the charge fails to demonstrate any
of
these patrons informed Mr.
Aigner
of
Ms. Geismar's statements. As such, the charge fails to demonstrate the requisite
knowledge and must be dismissed.
Even assuming that Ms. Geismar engaged in protected activity in April 2002 when she
complained about Ms. Powell's resignation, the charge fails to state the requisite nexus.
According to Charging Party's own facts, Mr. Aigner's hostile treatment began well before any
of the alleged protected activity. Moreover, the alleged protected activity occurred months and
years prior to the adverse action, thus failing to demonstrate the requisite temporal proximity.
Finally, nothing herein demonstrates Mr. Aigner violated Library policies by terminating Ms.
Geismar or provided shifting justifications for such termination. As such, this allegation must
be dismissed.

(
SF-CE-159-M
March 1, 2004
Page 5
Charging Party also contends the Library violated Business and Professions Code section 6301
by having only five board members. While Charging Party presents facts regarding state law
on the subject, PERB lacks jurisdiction over such violations.
Charging Party further contends the Library violated County local rules by failing to have six
Trustees. The library operates as a "special district" and is a separate and distinct employer
from the County of Marin, thus County rules are inapplicable herein. As the charge does not
present any Library local rules regarding the number of trustees, the charge must be dismissed.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) cop1es of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b ). )
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

____________
(
SF-CE-159-M
March
1,
2004 ·
Page 6
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By_
Kristin L. Rosi
Regional Attorney
~/j-::,,	
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_
Attachment
cc: Rhonda Crawley

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STATE OF CALIFORNIA 	NOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
January 29, 2004
James Baker, Labor Relations Specialist
114 Mono A venue
Fairfax, CA 94930
Re: 	Elizabeth Geismar
v.
County
of
Marin (Law Library)
Unfair Practice Charge No. SF-CE-159-M
WARNING LETTER
Dear Mr. Baker:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 16, 2004. Elizabeth Geismar alleges that the County
of
Marin (Law Library) violated the Meyers-Milias-Brown Act (MMBA)1 by terminating her
employment.
Investigation
of
the charge revealed the following. 	Ms. Geismar was employed by the Marin
County Law Library as an Assistant Librarian. Ms. Geismar held this position for fifteen (15)
years until her termination on July 2, 2003.
The Marin County Law Library is not an agency
of
the County
of
Marin, but is instead, a
separate and distinct public agency with its own Board
of
Trustees. As such, Ms. Geismar' s
employment is not guided by the rules and regulations
of
employment by the County, but by
the Law Library's Employment Policies. The Law Library's Employment Policy states in
relevant part as follows:
III. At-Will Employment: The Library is an at-will employer
within the meaning
of
California Labor Code section 2922,
operating within the scope
of
California and federal public
policies prohibiting particular discriminatory practices.
Employment by the Library does not carry the implication
of
a
contract or
of
any guarantee
of
continuous employment for any
definite or determinable period or for any specific term. . . At-
will employment may be terminated at any time, with or without
cause, and with or without notice. Employees who fail to
perform their jobs in a satisfactory manner may be so advised,
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-159-M
January 29, 2004
Page 2
and where the Library Director considers appropriate, employees
may be given an opportunity to improve their performance.
* 	* 	* 	* 	*
VI. 	Grievance Procedures .
1.	
Grievances are a private matter
of
the Library and are not to
be aired within the public spaces
of
the Library.
2. Any grievance that cannot be resolved informally with the
Director's assistance, including those regarding termination, must
be submitted by the complaining employee in writing to the
Library Board
of
Trustees. The Board
of
Trustees will consider
the grievance at its earliest convenience and provide a written
response to the grievance, including,
if
it finds it to be
appropriate, the overruling
of
any decision
by
the Director.
On June 20, 2003, Library Director Hal Aigner issued Ms. Geismar a notice
of
termination.
The termination letter did not provide Ms. Geismar with a reason for her termination. 	On June
23, 2003, Ms. Geismar hand-delivered a letter
to
Mr. Aigner, asking for the reason behind her
termination. On June 25, 2003, Ms. Geismar sent Mr. Aigner another letter regarding her
termination.
On August 1, 2003, Mr. Aigner sent Ms. Geismar another letter regarding her termination.
This letters stated in relevant part as follows:
After several months
of
inquiry and deliberation, the decision to
approve termination
of
your employment with the Library was
reached due to a continuing course
of
conduct that had become
increasingly incompatible with Library operations as needs
increase for the Library to become more technologically oriented
and to serve broader, more diverse populations.
Shortly after her termination, Ms. Geismar retained the services
of
Labor Relations Specialist
James Baker. On August 29, 2003, Mr. Baker filed an appeal of Ms. Geismar's termination
with the Library's Board
of
Trustees. The appeal argued Ms. Geismar was technologically
proficient and thus should not have been terminated. The appeal also argued Mr. Aigner was
favoring some employees over others.
Based on the above stated facts, the charge as presently written, fails to state a prima facie
violation of the MMBA, for the reasons provided below.
Herein, Charging Party contends her termination violated Government Code sections 3 509(b)
and (c). However, section 3509 pertains to PERB exclusive jurisdiction to investigate and

(
SF-CE-159-M
January 29, 2004
Page 3
adjudicate unfair practices under the MMBA. Neither provision describes employee rights and
as such, is irrelevant to the allegations in the charge.
It is assumed that Charging Party wishes to argue the Library discriminated against her in
terminating her employment. To establish a prima facie case
of
discrimination in violation
of
Government Code section 3506 and PERB Regulation 32603(a), the charging party must show
that: (1) the employee exercised rights under MMBA; (2) the employer had knowledge
of
the
exercise
of
those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employee because
of
the exercise'ofthose rights. (Campbell Municipal Employees
Association
v.
City
of
Campbell (1982)
131
Cal.App.3d 416 (Campbell); San Leandro Police
Officers Association v. City
of
San Leandro (1976) 55 Cal.App.3d 553.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor, it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action in protected conduct. (Moreland
Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following nexus factors should be present: (1) the employer's disparate treatment
of
the
employee (Campbell, supra); (2) the employer's departure from established procedures and
standards when dealing with the employee (San Leandro Police Officers Association, supra.);
(3) the employer's inconsistent or contradictory justifications for its actions (San Leandro
Police Officers Association, supra.); (4) the employer's cursory investigation
of
the employee's
misconduct; (5) the employer's failure to offer the employee justification at the time it took
action or the offering
of
exaggerated, vague, or ambiguous reasons; or (6) employer animosity
towards union activists (San Leandro Police Officers Association, supra; Los Angeles County
Employees Association v. County
of
Los Angeles (1985) 168 Cal.App.3d 683.).
The charge fails to demonstrate Ms. Geismar engaged in any protected activity prior to her
termination, and as such, a finding
of
discrimination cannot be made. Moreover, even
assuming Ms. Geismar engaged in protected activity, the charge fails to provide the requisite
nexus.
Additionally, Charging Party may wish to allege the Library violated its local rules regarding
employment. However, nothing provided herein demonstrates the Library violated its at-will
employment or grievance policy. As such, the charge fails to state a prima facie violation
oftheMMBA.
For these reasons the charge, as presently written, does not state a prima facie case.
	If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an

SF-CE-159-M
January 29, 2004
Page4
amended charge or withdrawal from you before February 5, 2004, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR