State of California (Department of Social Services) (PERB 2072S)

STATE OF CALIFOR.t~IA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MICHAEL MENASTER,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
SOCIAL SERVICES),
Respondent.
Case No. SF-CE-240-S
PERB Decision No. 2072-S
October 27, 2009
Appearances: Michael Menaster, on his own behalf; State
of
California (Department
of
Personnel Administration) by Frolan R. Aguiling, Labor Relations Counsel, for State
of
California (Department
of
Social Services).
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
NEUW ALD, Member: This case is before the Public Employment Relations
Board	NEUWALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Michael Menaster (Menaster) to the proposed decision
(attached)
of
an administrative law judge (ALJ). The PERB complaint alleged that the State
of
California (Department
of
Social Services) (DSS or State) violated Ralph C. Dills Act
(Dills Act) section 3519(a)1 by: (1) denying Menaster the right to be represented by his
employee organization at a meeting to discuss Menaster's behavior; and (2) retaliating against
Menaster for engaging in protected activity by issuing him an expectations memo and memo
for record, placing him on administrative leave as part
of
the process to reject him on
probation, and failing to reinstate him following his separation from employment.
1 The Dills Act is codified at Government Code section 3512 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MICHAEL MENASTER,
Charging Party, 	Case No. SF-CE-240-S
v . 	PERB Decision No. 2072-S
STATE OF CALIFORNIA (DEPARTMENT OF 	October 27, 2009
SOCIAL SERVICES),
Respondent.
Appearances: Michael Menaster, on his own behalf; State of California (Department of
Personnel Administration) by Frolan R. Aguiling, Labor Relations Counsel, for State of
California (Department of Social Services).
Before Dowdin Calvillo, Acting Chair; Mckeag and Neuwald, Members.
DECISION
(PERB or Board) on exceptions filed by Michael Menaster (Menaster) to the proposed decision
(attached) of an administrative law judge (ALJ). The PERB complaint alleged that the State of
California (Department of Social Services) (DSS or State) violated Ralph C. Dills Act
(Dills Act) section 3519(a) by: (1) denying Menaster the right to be represented by his
employee organization at a meeting to discuss Menaster's behavior; and (2) retaliating against
Menaster for engaging in protected activity by issuing him an expectations memo and memo
for record, placing him on administrative leave as part of the process to reject him on
probation, and failing to reinstate him following his separation from employment.
The Dills Act is codified at Government Code section 3512 et seq.

BACKGROUND2
Since shortly after his hire in 2005, Menaster was the subject
of
numerous employee
complaints concerning his behavior, including comments that he was intrusive, loud, gossiped,
talked excessively, and made inappropriate and offensive comments to and about co-workers.
In addition, he made numerous complaints about his working conditions to his employee
representative. After an incident on February
1,
2006, in which he made an agitated phone call
to his union representative, DSS placed Menaster on administrative time off (ATO) while it
prepared to reject him on probation. The central issues in this case are whether DSS denied
Menaster representation during a meeting with management and retaliated against Menaster for
engaging in protected activity.
After a hearing on the merits, the ALJ found that the State did not violate Menaster' s
rights under the Dills Act and dismissed the complaint and underlying unfair practice charge.
The Board has reviewed the entire record in this case. Based upon this review, we find
the proposed decision was well-reasoned, adequately supported by the record, and generally in
accordance with applicable law. We therefore adopt the proposed decision as a decision
of
the
Board itself, subject to the following discussion
of
the analysis
of
whether the decision to place
Menaster on ATO in preparation for rejecting him on probation was made for retaliatory
reasons. 3
The Board summarizes the facts only briefly here. The full statement of facts is set
forth in the ALJ' s proposed decision.
The Board summarizes the facts only briefly here. The full statement of facts is set
forth in the ALJ's proposed decision.
3 In adopting the ALJ's proposed decision, we do not adopt the following statement at
page 33: "A document which is placed in an employee's personnel file after he leaves
employment may interfere with the free exercise of such rights, if not with the past covered
employer, but a future covered employer, or may have other negative consequences, for
example, in the search for new employment." Given our adoption of the ALJ's conclusion that
the draft documents that were placed in the supervisor's drop file but were never placed in his
personnel file did not constitute adverse action, we will not speculate on the impact the
2
BACKGROUND
Since shortly after his hire in 2005, Menaster was the subject of numerous employee
complaints concerning his behavior, including comments that he was intrusive, loud, gossiped,
talked excessively, and made inappropriate and offensive comments to and about co-workers.
In addition, he made numerous complaints about his working conditions to his employee
representative. After an incident on February 1, 2006, in which he made an agitated phone call
to his union representative, DSS placed Menaster on administrative time off (ATO) while it
prepared to reject him on probation. The central issues in this case are whether DSS denied
Menaster representation during a meeting with management and retaliated against Menaster for
engaging in protected activity.
After a hearing on the merits, the ALJ found that the State did not violate Menaster's
rights under the Dills Act and dismissed the complaint and underlying unfair practice charge.
The Board has reviewed the entire record in this case. Based upon this review, we find
the proposed decision was well-reasoned, adequately supported by the record, and generally in
accordance with applicable law. We therefore adopt the proposed decision as a decision of the
Board itself, subject to the following discussion of the analysis of whether the decision to place
Menaster on ATO in preparation for rejecting him on probation was made for retaliatory
reasons.
In adopting the ALJ's proposed decision, we do not adopt the following statement at
page 33: "A document which is placed in an employee's personnel file after he leaves
employment may interfere with the free exercise of such rights, if not with the past covered
employer, but a future covered employer, or may have other negative consequences, for
example, in the search for new employment." Given our adoption of the ALJ's conclusion that
the draft documents that were placed in the supervisor's drop file but were never placed in his
personnel file did not constitute adverse action, we will not speculate on the impact the
2

DISCUSSION
Administrative Time Off
Menaster excepts to the ALJ's conclusion that DSS did not place him on ATO or seek
to reject him on probation in retaliation for having engaged in protected activity. We agree
with the ALJ that, while Menaster established a prima facie case
of
discrimination, the State
adequately rebutted the prima facie case by presenting substantial evidence that the decision to
place Menaster on ATO was based upon performance issues as reflected in the history
of
counseling Menaster regarding his problems relating to coworkers, his failure to exercise
sound discretion in interacting with them, the unprofessional nature
of
the content
of
his
communications with them, and the degree to which he caused interference with the work
of
others as well as himself. We decline to adopt, however, the statement at page
35
of
the
proposed decision that the decision to reject Menaster on probation was not alleged in the
complaint. The complaint states: "Respondent, acting through its agent Schoenfelder, took
adverse action against Menaster by
...
placing Menaster on administrative leave as a part
of
the process to reject Menaster on probation." (Emphasis added.) The complaint can
reasonably be construed to include the rejection on probation as part
of
the alleged adverse
action taken against Menaster. In addition, even an unalleged violation can be used to support
a charge where: (1) adequate notice and opportunity to defend has been provided the
respondent; (2) the acts are intimately related to the subject matter of the complaint and are
part
of
the same course of conduct; (3) the unalleged violation has been fully litigated; and
( 4) the parties have had the opportunity to examine and be cross-examined on this issue.
placement of such documents in a personnel file might have on an employee's future
employment.
3
DISCUSSION
Administrative Time Off
Menaster excepts to the ALJ's conclusion that DSS did not place him on ATO or seek
to reject him on probation in retaliation for having engaged in protected activity. We agree
with the ALJ that, while Menaster established a prima facie case of discrimination, the State
adequately rebutted the prima facie case by presenting substantial evidence that the decision to
place Menaster on ATO was based upon performance issues as reflected in the history of
counseling Menaster regarding his problems relating to coworkers, his failure to exercise
sound discretion in interacting with them, the unprofessional nature of the content of his
communications with them, and the degree to which he caused interference with the work of
others as well as himself. We decline to adopt, however, the statement at page 35 of the
proposed decision that the decision to reject Menaster on probation was not alleged in the
complaint. The complaint states: "Respondent, acting through its agent Schoenfelder, took
adverse action against Menaster by . . . placing Menaster on administrative leave as a part of
the process to reject Menaster on probation." (Emphasis added.) The complaint can
reasonably be construed to include the rejection on probation as part of the alleged adverse
action taken against Menaster. In addition, even an unalleged violation can be used to support
a charge where: (1) adequate notice and opportunity to defend has been provided the
respondent; (2) the acts are intimately related to the subject matter of the complaint and are
part of the same course of conduct; (3) the unalleged violation has been fully litigated; and
(4) the parties have had the opportunity to examine and be cross-examined on this issue.
placement of such documents in a personnel file might have on an employee's future
employment.
3

(Los Angeles County Superior Court (2008) PERB Decision No. 1979-C; Fresno County
Superior Court (2008) PERB Decision No. 1942-C (Fresno County).) The alleged violation also
must have occurred within the applicable statute oflimitations period. (Fresno County.)
By alleging that the placement
of
Menaster on administrative leave was part
of
the
process to reject Menaster on probation, the complaint put the State on notice that the decision
to reject Menaster on probation was included within the scope
of
the complaint. Moreover, the
record
of
the hearing before the ALJ reveals that the State presented substantial evidence to
explain the basis for its decision to reject Menaster on probation. The record also reveals that
the decision to reject Menaster on probation was intimately related
to
the decision to place him
on ATO. As found by the ALJ, DSS placed him on ATO for the specific purpose
of
enabling
it to develop the necessary documentation to reject him on probation. The rejection decision
was fully litigated and the parties had ample opportunity to examine and cross-examine
on
the
issue. 	Therefore, we find that the decision to reject Menaster on probation was properly
included within the scope
of
the hearing.
We also find that that the State met its burden
of
establishing that it was motivated by
legitimate business reasons in deciding first to place Menaster on ATO and then to reject him
on probation. As a state civil service employee, Menaster was subject to rejection during the
probationary period for reasons relating to his qualifications, the good of the service, or failure
to demonstrate merit, efficiency, fitness, and moral responsibility, so long as the rejection was
not taken for any cause constituting prohibited discrimination as set forth in Sections 19700 to
19703 of the Government Code. (Gov. Code,§ 19173(a).) Under the state civil service laws, a
rejected probationer may be restored to his position only if the State Personnel Board
determines, after hearing, that there was no substantial evidence to support the reason or
4
(Los Angeles County Superior Court (2008) PERB Decision No. 1979-C; Fresno County
Superior Court (2008) PERB Decision No. 1942-C (Fresno County).) The alleged violation also
must have occurred within the applicable statute of limitations period. (Fresno County.)
By alleging that the placement of Menaster on administrative leave was part of the
process to reject Menaster on probation, the complaint put the State on notice that the decision
to reject Menaster on probation was included within the scope of the complaint. Moreover, the
record of the hearing before the ALJ reveals that the State presented substantial evidence to
explain the basis for its decision to reject Menaster on probation. The record also reveals that
the decision to reject Menaster on probation was intimately related to the decision to place him
on ATO. As found by the ALJ, DSS placed him on ATO for the specific purpose of enabling
it to develop the necessary documentation to reject him on probation. The rejection decision
was fully litigated and the parties had ample opportunity to examine and cross-examine on the
issue. Therefore, we find that the decision to reject Menaster on probation was properly
included within the scope of the hearing.
We also find that that the State met its burden of establishing that it was motivated by
legitimate business reasons in deciding first to place Menaster on ATO and then to reject him
on probation. As a state civil service employee, Menaster was subject to rejection during the
probationary period for reasons relating to his qualifications, the good of the service, or failure
to demonstrate merit, efficiency, fitness, and moral responsibility, so long as the rejection was
not taken for any cause constituting prohibited discrimination as set forth in Sections 19700 to
19703 of the Government Code. (Gov. Code, $ 19173(a).) Under the state civil service laws, a
rejected probationer may be restored to his position only if the State Personnel Board
determines, after hearing, that there was no substantial evidence to support the reason or

reasons for the rejection, or.that the rejection was made in fraud or bad faith. 	(Gov. Code, §
19175(d); Boutwell
v.
State Board
of
Equalization (1949) 94 Cal.App.2d 945.)
Subject to rebuttal by the employee, it
is
presumed that the rejection was free from fraud and
bad faith, and that the statement
of
reasons in the notice
of
rejection
is
true. (Gov. Code,
§ 19175(d).)4
An employee's protected activity does not insulate him from adverse actions by the
employer. (State
of
California (Department
of
Industrial Relations) (1998) PERB Decision
No. 1299-S (Department
of
Industrial Relations).) PERB will not review whether "just cause"
for discharge exists or whether the discharge was otherwise unlawful, but will only review
whether it was taken for reasons protected by the statutes administered by PERB.	
(Moreland
Elementary School District (1982) PERB Decision No. 227.)
In Department
of
Industrial Relations, PERB found that the State provided sufficient
justification for rejecting an employee on probation notwithstanding his protected activity,
where the State's expectations and concerns with the employee's performance were thoroughly
and consistently explained and documented throughout the probationary period. Similarly,
DSS in this case consistently explained and documented its expectations and concerns with
Menaster' s performance prior to placing him on ATO and making the decision to reject him on
probation. Therefore, the Board agrees with the ALJ's conclusion that DSS's decision to place
* In reaching its decision, PERB does not apply the civil service standards for rejection
during probation, but sets them forth herein to clarify that they are different from the Education
Code provisions at issue in McFarland Unified School Dist.
v.
Public Employment Relations
Bd. (1991) 228 Cal.App.3d 166, relied upon by the ALJ, which was certified for partial
publication only on the issue ofremedy for the unlawful denial of tenure to a probationary
teacher based upon participation in protected activity under the Educational Employment
Relations Act (EERA). (EERA is codified at Gov. Code, § 3540 et seq.)
5
reasons for the rejection, or that the rejection was made in fraud or bad faith. (Gov. Code, $
19175(d); Boutwell v. State Board of Equalization (1949) 94 Cal.App.2d 945.)
Subject to rebuttal by the employee, it is presumed that the rejection was free from fraud and
bad faith, and that the statement of reasons in the notice of rejection is true. (Gov. Code,
$ 19175(d).)*
An employee's protected activity does not insulate him from adverse actions by the
employer. (State of California (Department of Industrial Relations) (1998) PERB Decision
No. 1299-S (Department of Industrial Relations).) PERB will not review whether "just cause"
for discharge exists or whether the discharge was otherwise unlawful, but will only review
whether it was taken for reasons protected by the statutes administered by PERB. (Moreland
Elementary School District (1982) PERB Decision No. 227.)
In Department of Industrial Relations, PERB found that the State provided sufficient
justification for rejecting an employee on probation notwithstanding his protected activity,
where the State's expectations and concerns with the employee's performance were thoroughly
and consistently explained and documented throughout the probationary period. Similarly,
DSS in this case consistently explained and documented its expectations and concerns with
Menaster's performance prior to placing him on ATO and making the decision to reject him on
probation. Therefore, the Board agrees with the ALJ's conclusion that DSS's decision to place
In reaching its decision, PERB does not apply the civil service standards for rejection
during probation, but sets them forth herein to clarify that they are different from the Education
Code provisions at issue in Mcfarland Unified School Dist. v. Public Employment Relations
Bd. (1991) 228 Cal.App.3d 166, relied upon by the ALJ, which was certified for partial
publication only on the issue of remedy for the unlawful denial of tenure to a probationary
teacher based upon participation in protected activity under the Educational Employment
Relations Act (EERA). (EERA is codified at Gov. Code, $ 3540 et seq.)
5

Menaster on administrative leave for the purpose of moving toward rejection on probation was
motivated by legitimate business reasons.
ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-240-S are
hereby DISMISSED.
Acting Chair Dowdin Calvillo and Member McKeag joined in this Decision.
6
Menaster on administrative leave for the purpose of moving toward rejection on probation was
motivated by legitimate business reasons.
ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-240-S are
hereby DISMISSED.
Acting Chair Dowdin Calvillo and Member Mckeag joined in this Decision.
6

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MICHAEL MENASTER,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
SOCIAL SERVICES),
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-240-S
PROPOSED DECISION
(5/01/2009)
Appearances: Michael Menaster, in pro per; Frolan R. Aguiling, Labor Relations Counsel,
Department
of
Personnel Administration, for the State
of
California, Department
of
Social
Services.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
On July 19, 2006, Michael Menaster initiated this case by filing an unfair practice
charge against the State
of
California. On December 9, 2006, he amended the charge.
	On
December 20, 2006, the Office
of
the General Counsel
of
the Public Employment Relations
Board (PERB or Board) issued a complaint, alleging that the State (1) denied Menaster the
right to be represented by his employee organization during a meeting with management; and
(2) discriminated against him because
of
the exercise
of
rights under the Ralph C. Dills (Dills	(2)
Act) (Gov. Code,§ 3515 et seq.) 1 by issuing him an Expectations Memorandum and a
Memorandum for Record, placing him on administrative leave, and failing to reinstate him to
his former position following his separation from employment. This conduct is alleged to
HeHereafter all statutory references are to the Government Code unless otherwise stated.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MICHAEL MENASTER,
UNFAIR PRACTICE
Charging Party, 	CASE NO. SF-CE-240-S
V .
PROPOSED DECISION
(5/01/2009)
STATE OF CALIFORNIA (DEPARTMENT OF
SOCIAL SERVICES),
Respondent.
Appearances: Michael Menaster, in pro per; Frolan R. Aguiling, Labor Relations Counsel,
Department of Personnel Administration, for the State of California, Department of Social
Services.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
On July 19, 2006, Michael Menaster initiated this case by filing an unfair practice
charge against the State of California. On December 9, 2006, he amended the charge. On
December 20, 2006, the Office of the General Counsel of the Public Employment Relations
Board (PERB or Board) issued a complaint, alleging that the State (1) denied Menaster the
right to be represented by his employee organization during a meeting with management; and
discriminated against him because of the exercise of rights under the Ralph C. Dills (Dills
Act) (Gov. Code, $ 3515 et seq.) by issuing him an Expectations Memorandum and a
Memorandum for Record, placing him on administrative leave, and failing to reinstate him to
his former position following his separation from employment. This conduct is alleged to
reafter all statutory references are to the Government Code unless otherwise stated.

violate section 3519(a) of the Act. 	On the same date, the Office of the General Counsel
dismissed other allegations contained in the unfair practice charge.
On January 5, 2007, Menaster filed an amended unfair practice charge. No immediate
action was taken on the matter.
On January 10, 2007, the State answered the complaint, denying the material
allegations and asserting a number of affirmative defenses.
On January 25, 2007, an informal settlement conference was held, but the matter was
not resolved.
On January 29, 2007, Menaster filed a request for injunctive relief, citing ongoing
violations of his Dills Act rights by the State. On February 6, 2007, PERB denied the request.
On February 8, 2007, a second informal settlement conference was held, again without
resolution.
On November 5, 2007, the undersigned denied Menaster's motion to amend the
complaint based on the amended unfair practice charge filed on January 5, 2007.
Beginning March 17, 2008, and continuing for 10 non-consecutive days through
November 8, 2008, a formal hearing was conducted by the undersigned.
On March 20, 2009, the matter was submitted for decision following the receipt of the
parties' briefing.
FINDINGS OF FACT
Menaster is an employee within the meaning of section 3513(c ). The respondent is the
State employer within the meaning of section 3513G) of the Dills Act.
Menaster's Hiring by the Determination Division
On October 31, 2005, Menaster began employment with the California Department of
Social Services (Department) as a medical consultant I, assigned to the Determination
2
violate section 3519(a) of the Act. On the same date, the Office of the General Counsel
dismissed other allegations contained in the unfair practice charge.
On January 5, 2007, Menaster filed an amended unfair practice charge. No immediate
action was taken on the matter.
On January 10, 2007, the State answered the complaint, denying the material
allegations and asserting a number of affirmative defenses.
On January 25, 2007, an informal settlement conference was held, but the matter was
not resolved.
On January 29, 2007, Menaster filed a request for injunctionelief, citing ongoing
violations of his Dills Act rights by the State. On February 6, 2007, PERB denied the request.
On February 8, 2007, a second informal settlement conference was held, again without
resolution.
On November 5, 2007, the undersigned denied Menaster's motion to amend the
complaint based on the amended unfair practice charge filed on January 5, 2007.
Beginning March 17, 2008, and continuing for 10 non-consecutive days through
November 8, 2008, a formal hearing was conducted by the undersigned.
On March 20, 2009, the matter was submitted for decision following the receipt of the
parties' briefing.
FINDINGS OF FACT
Menaster is an employee within the meaning of section 3513(c). The respondent is the
State employer within the meaning of section 3513(j) of the Dills Act.
Menaster's Hiring by the Determination Division
On October 31, 2005, Menaster began employment with the California Department of
Social Services (Department) as a medical consultant I, assigned to the Determination
2

Division. The Department contracts with the United States Social Security Administration to
make eligibility determinations for the federal disability benefits program. The primary
responsibility for this task is assigned to the position
of
disability evaluation analyst (DEA)
within the Department. The DEA reviews the applicant's medical files together with other lay
evidence (e.g., vocational and social) against the claim for benefits. In each case the
DEA
determines whether the disability conforms to one
of
the Social Security Administration's
listed disabilities and/or whether that disability is severe enough to qualify the applicant.
DEA's
are not medical professionals and do not make any clinical judgments in their case
adjudications. The DEA writes up an opinion (a "consult") and shares it with a medical
consultant, who states an opinion as to whether he/she agrees or disagrees, or has a different
opinion. 	Since disability may be established on the basis
of
psychiatric, as well as medical
impairment, both medical physicians and psychiatric physicians are employed as medical
consultants by the Department. Menaster, a licensed psychiatric physician, was assigned
to
review applications based on psychiatric disability.
The Determination Division has
11
branches, including offices in Sacramento and
Oakland. At the time
of
the events in question, the Sacramento branch was operated under
Branch Chief Margaret Harbridge. 	Harbridge reported to Assistant Deputy Director for
Disability Evaluation Robert Stavis. Two case adjudication bureau chiefs, who reported to
Harbridge, supervised seven disability evaluation services administrators, known as team
managers. Each team included DEA's, medical consultants, and related support staff. Robert
Schoenfelder was Menaster's team manager and first-line supervisor.
Due to difficulty filling psychiatric medical consultant positions in the Sacramento
branch at the budgeted salary, the Department opened its recruitment to applicants residing
outside of Sacramento, contemplating a pilot plan to have its cases reviewed remotely in
3
Division. The Department contracts with the United States Social Security Administration to
make eligibility determinations for the federal disability benefits program. The primary
responsibility for this task is assigned to the position of disability evaluation analyst (DEA)
within the Department. The DEA reviews the applicant's medical files together with other lay
evidence (e.g., vocational and social) against the claim for benefits. In each case the DEA
determines whether the disability conforms to one of the Social Security Administration's
listed disabilities and/or whether that disability is severe enough to qualify the applicant.
DEA's are not medical professionals and do not make any clinical judgments in their case
adjudications. The DEA writes up an opinion (a "consult") and shares it with a medical
consultant, who states an opinion as to whether he/she agrees or disagrees, or has a different
opinion. Since disability may be established on the basis of psychiatric, as well as medical
impairment, both medical physicians and psychiatric physicians are employed as medical
consultants by the Department. Menaster, a licensed psychiatric physician, was assigned to
review applications based on psychiatric disability.
The Determination Division has 11 branches, including offices in Sacramento and
Oakland. At the time of the events in question, the Sacramento branch was operated under
Branch Chief Margaret Harbridge. Harbridge reported to Assistant Deputy Director for
Disability Evaluation Robert Stavis. Two case adjudication bureau chiefs, who reported to
Harbridge, supervised seven disability evaluation services administrators, known as team
managers. Each team included DEA's, medical consultants, and related support staff. Robert
Schoenfelder was Menaster's team manager and first-line supervisor.
Due to difficulty filling psychiatric medical consultant positions in the Sacramento
branch at the budgeted salary, the Department opened its recruitment to applicants residing
outside of Sacramento, contemplating a pilot plan to have its cases reviewed remotely in
3

another branch office. As the successful candidate, Menaster, a resident
of
San Francisco, was
hired to be the first medical consultant under the plan. He was to receive training in
Sacramento for two months, followed by a transfer to the Oakland branch.
During the interview process, the Department conducted a background check on
Menaster to verify that he maintained active medical licensure. The inquiry disclosed that
Menaster had been placed on probation by the state licensing board, but successfully
completed his probation thereafter. Schoenfelder was a member
of
the interview panel.
Menaster revealed some background related to the medical board complaint, citing certain
improper practices regarding prescriptions and possession
of
medication. At Menaster' s
suggestion, Schoenfelder discussed the disciplinary action with the psychiatric physician who
supervised Menaster during his probation. Following the physician's endorsement,
Schoenfelder recommended that Menaster be hired. Stavis approved the hiring decision.
Medical consultants are exclusively represented by the Union
of
American Physicians
and Dentists (UAPD). UAPD has two job stewards working in the Sacramento office working
as medical consultants. Sandra Clancey is a surgeon by training. Vallabhaneni Meenakshi is a
psychiatric physician. 	She reviewed the same types
of
cases as Menaster.
Training in Sacramento
Immediately upon his arrival in Sacramento, Menaster introduced himself to staff in the
Department and engaged them in social conversation. One manager was pleasantly surprised
by Menaster's enthusiasm and gregarious nature. However, within days of his employment,
Schoenfelder began receiving reports that Menaster had contacted numerous employees either
to "gather lots of information or just socialize." Schoenfelder began documenting these reports
4
another branch office. As the successful candidate, Menaster, a resident of San Francisco, was
hired to be the first medical consultant under the plan. He was to receive training in
Sacramento for two months, followed by a transfer to the Oakland branch.
During the interview process, the Department conducted a background check on
Menaster to verify that he maintained active medical licensure. The inquiry disclosed that
Menaster had been placed on probation by the state licensing board, but successfully
completed his probation thereafter. Schoenfelder was a member of the interview panel.
Menaster revealed some background related to the medical board complaint, citing certain
improper practices regarding prescriptions and possession of medication. At Menaster's
suggestion, Schoenfelder discussed the disciplinary action with the psychiatric physician who
supervised Menaster during his probation. Following the physician's endorsement,
Schoenfelder recommended that Menaster be hired. Stavis approved the hiring decision.
Medical consultants are exclusively represented by the Union of American Physicians
and Dentists (UAPD). UAPD has two job stewards working in the Sacramento office working
as medical consultants. Sandra Clancey is a surgeon by training. Vallabhaneni Meenakshi is a
psychiatric physician. She reviewed the same types of cases as Menaster.
Training in Sacramento
Immediately upon his arrival in Sacramento, Menaster introduced himself to staff in the
Department and engaged them in social conversation. One manager was pleasantly surprised
by Menaster's enthusiasm and gregarious nature. However, within days of his employment,
Schoenfelder began receiving reports that Menaster had contacted numerous employees either
to "gather lots of information or just socialize." Schoenfelder began documenting these reports
4

and placing his notes in a "drop file."2 Schoenfelder's first memorandum included an
observation or concern on each
of
the first six days
of
Menaster' s employment. The
memorandum indicates that Schoenfelder discussed "social interactions" with Menaster
on
November
4;
that Menaster asked him
if
he should ignore someone wearing provocative
clothing (Schoenfelder testified that came up in a conversation around the time it had been
reported to him that Menaster asked a female employee for her telephone number); and
that
a
female coworker expressed concerns about Menaster's request
of
that employee that he
be
able
to call her from home on his day off for advice on a case. On the following day, a Friday,
Schoenfelder added a note that Menaster asked
if
he "was in trouble." Menaster also asked
Schoenfelder
if
he could see previous grievances to know which employees to avoid.
Menaster offered that he might need guidance on how to operate in a "government
environment." On the Monday following the weekend, Schoenfelder documented that he had
received numerous comments that Menaster was "intrusive, loud, [and] talking to anyone he
could engage." Schoenfelder also made a note that these days were followed by a short period
of
good productivity, consistent with his testimony to the same effect. In addition,
Schoenfelder documented a concern about Menaster's impatience in getting answers as
part
of
his training and setting out on his own to find answers. 	Schoenfelder cited Menaster raising an
issue about the effective date
of
dental care, and rather than waiting for an answer from the
personnel staff, he contacted his union representative. A few days later, a trainer reported to
Schoenfelder that he doubted Menaster was a good fit for the organization, being too
argumentative and not a team player. It was reported to Schoenfelder that Menaster was
asking about how to "manipulate" the system to obtain the productivity bonus.
Consistent with a practice of many employers, the Department places documentation
of potential disciplinary matters in an informal collection file, separate from the employee's
official personnel file.
5
and placing his notes in a "drop file." Schoenfelder's first memorandum included an
observation or concern on each of the first six days of Menaster's employment. The
memorandum indicates that Schoenfelder discussed "social interactions" with Menaster on
November 4; that Menaster asked him if he should ignore someone wearing provocative
clothing (Schoenfelder testified that came up in a conversation around the time it had been
reported to him that Menaster asked a female employee for her telephone number); and that a
female coworker expressed concerns about Menaster's request of that employee that he be able
to call her from home on his day off for advice on a case. On the following day, a Friday,
Schoenfelder added a note that Menaster asked if he "was in trouble." Menaster also asked
Schoenfelder if he could see previous grievances to know which employees to avoid.
Menaster offered that he might need guidance on how to operate in a "government
environment." On the Monday following the weekend, Schoenfelder documented that he had
received numerous comments that Menaster was "intrusive, loud, [and] talking to anyone he
could engage." Schoenfelder also made a note that these days were followed by a short period
of good productivity, consistent with his testimony to the same effect. In addition,
Schoenfelder documented a concern about Menaster's impatience in getting answers as part of
his training and setting out on his own to find answers. Schoenfelder cited Menaster raising an
issue about the effective date of dental care, and rather than waiting for an answer from the
personnel staff, he contacted his union representative. A few days later, a trainer reported to
Schoenfelder that he doubted Menaster was a good fit for the organization, being too
argumentative and not a team player. It was reported to Schoenfelder that Menaster was
asking about how to "manipulate" the system to obtain the productivity bonus.
Consistent with a practice of many employers, the Department places documentation
of potential disciplinary matters in an informal collection file, separate from the employee's
official personnel file.
5

In late November, Schoenfelder documented a complaint from an employee who asked
Menaster to be quiet following a "loud sustained conversation" with another employee.
	The
same day a third employee complained that she was offended not only by the loudness
of
Menaster's voice but by comments that were racially offensive to her. 	Schoenfelder's notes
document a counseling session on November
23
in which he mentioned to Menaster that in
response to his monopolizing the conversation at an office birthday party, several
of
the
staff
gave Schoenfelder the "eye roll." This incident prompted Schoenfelder to suggest that
Menaster do more listening. In short, as a result
of
these matters, Schoenfelder advised
Menaster to stay at his desk and "under the radar."
In the course
of
these interactions, a number
of
employees shared confidences with
Menaster. For example, he heard a rumor that a certain employee was having an affair with
Les Payton, one
of
Sacramento's two case adjudication bureau chiefs, and Schoenfelder's
immediate supervisor. Menaster later asked the female employee
if
the rumor was true. 	She
denied it.
Menaster' s knowledge
of
the rumored office affair was reported to another team
manager, Jan Morell, who relayed it to Payton. The woman complained that Menaster made
her uncomfortable by raising the matter with her. To Menaster the coworker did not appear
uncomfortable discussing the matter. I discount this claim because it is inconsistent with the
employee voluntarily complaining about it later. 3
Payton ordered Menaster into a meeting on December 7 to discuss the matter
of
the
rumored affair. 	Schoenfelder attended as an observer. Payton's intention was to counsel
Menaster was surprised that the woman had complained, because when he initialiy
asked her about it, she laughed it off in the course of denying it. Then she teased she might
take Menaster and flirt with him in front of Payton to make Payton jealous.
6
In late November, Schoenfelder documented a complaint from an employee who asked
Menaster to be quiet following a "loud sustained conversation" with another employee. The
same day a third employee complained that she was offended not only by the loudness of
Menaster's voice but by comments that were racially offensive to her. Schoenfelder's notes
document a counseling session on November 23 in which he mentioned to Menaster that in
response to his monopolizing the conversation at an office birthday party, several of the staff
gave Schoenfelder the "eye roll." This incident prompted Schoenfelder to suggest that
Menaster do more listening. In short, as a result of these matters, Schoenfelder advised
Menaster to stay at his desk and "under the radar."
In the course of these interactions, a number of employees shared confidences with
Menaster. For example, he heard a rumor that a certain employee was having an affair with
Les Payton, one of Sacramento's two case adjudication bureau chiefs, and Schoenfelder's
immediate supervisor. Menaster later asked the female employee if the rumor was true. She
denied it.
Menaster's knowledge of the rumored office affair was reported to another team
manager, Jan Morell, who relayed it to Payton. The woman complained that Menaster made
her uncomfortable by raising the matter with her. To Menaster the coworker did not appear
uncomfortable discussing the matter. I discount this claim because it is inconsistent with the
employee voluntarily complaining about it later.'
Payton ordered Menaster into a meeting on December 7 to discuss the matter of the
rumored affair. Schoenfelder attended as an observer. Payton's intention was to counsel
Menaster was surprised that the woman had complained, because when he initially
asked her about it, she laughed it off in the course of denying it. Then she teased she might
take Menaster and flirt with him in front of Payton to make Payton jealous.
6

Menaster regarding gossiping and inappropriate comments in the workplace,
so
as
to "nip [the
problem] in the [bud]."
Payton began by advising Menaster that team leaders and bureau chiefs have authority
to supervise medical consultants, despite not being licensed physicians. Menaster had
heard
from other medical consultants that team managers
do
not have such authority to the extent it
might interfere with the physicians' professional medical judgment. UAPD shares this
view
as
well. The Department does not take issue with that proposition directly, but maintains
that
team managers may supervise medical consultants in all other matters and that with respect to
the outcome on disability determinations the Department
is
not required to adhere to the
judgments
of
the medical consultants. In addition, since the physicians are not treating the
claimants, they are not providing a clinical diagnosis.
Next, Payton addressed the issue
of
sharing
of
personal information. He asked
Menaster
if
he had inquired
of
the co,vorker about his alleged affair with her. Menaster
admitted doing so. Payton told Menaster he was offended by the comments and threatened that
if
Menaster wanted to make an issue
of
it, the matter could be referred to the EEO officer for
an investigation. Although he did not specifically reference it at the time, the basis for such a
referral would have been pursuant to the Department's "zero tolerance" policy, covering sexual
harassment and unprofessional conduct in the workplace. 4 Payton then identified a separate
complaint from Morell. Morell had e-mailed Menaster a counseling memorandum with copies
to Payton and Schoenfelder expressing that she had been offended when in the course
of
"Sexual harassment" is defined by reference to state and federal equal employment
opportunity (EEO) law. "Unprofessional conduct" is broadly defined as conduct inconsistent
with courtesy, consideration, respect and professionalism. "Discourteous actions" are
described as including inappropriate remarks, slurs or jokes of a sexual, sexual orientation, or
obscene nature, repeated propositions, threats, or suggestive or insulting sounds. Employees
believing they have been subjected to unprofessional conduct have an obligation to report a
potential policy violation to their supervisor or the Department's EEO office.
7
Menaster regarding gossiping and inappropriate comments in the workplace, so as to "nip [ the
problem] in the [bud]."
Payton began by advising Menaster that team leaders and bureau chiefs have authority
to supervise medical consultants, despite not being licensed physicians. Menaster had heard
from other medical consultants that team managers do not have such authority to the extent it
might interfere with the physicians' professional medical judgment. UAPD shares this view as
well. The Department does not take issue with that proposition directly, but maintains that
team managers may supervise medical consultants in all other matters and that with respect to
the outcome on disability determinations the Department is not required to adhere to the
judgments of the medical consultants. In addition, since the physicians are not treating the
claimants, they are not providing a clinical diagnosis.
Next, Payton addressed the issue of sharing of personal information. He asked
Menaster if he had inquired of the coworker about his alleged affair with her. Menaster
admitted doing so. Payton told Menaster he was offended by the comments and threatened that
if Menaster wanted to make an issue of it, the matter could be referred to the EEO officer for
an investigation. Although he did not specifically reference it at the time, the basis for such a
referral would have been pursuant to the Department's "zero tolerance" policy, covering sexual
harassment and unprofessional conduct in the workplace." Payton then identified a separate
complaint from Morell. Morell had e-mailed Menaster a counseling memorandum with copies
to Payton and Schoenfelder expressing that she had been offended when in the course of
*"Sexual harassment" is defined by reference to state and federal equal employment
opportunity (EEO) law. "Unprofessional conduct" is broadly defined as conduct inconsistent
with courtesy, consideration, respect and professionalism. "Discourteous actions" are
described as including inappropriate remarks, slurs or jokes of a sexual, sexual orientation, or
obscene nature, repeated propositions, threats, or suggestive or insulting sounds. Employees
believing they have been subjected to unprofessional conduct have an obligation to report a
potential policy violation to their supervisor or the Department's EEO office.
7

discussing a case with a bipolar diagnosis, Menaster volunteered that he knew that someone in
her family had the condition (but had been advised to avoid the topic with her).
Following the December 7 meeting, Payton e-mailed Harbridge to give her an account
of his counseling of Menaster, including the e-mail string beginning with Morell's note.
Payton also memorialized the meeting in an e-mail to Menaster, in which he reiterated the
three matters discussed. Harbridge received a copy of that e-mail as well.
Menaster disputed the Morell incident as it was recounted in her e-mail. He stated that
Morell first volunteered that a family member had the condition and only in response did he
acknowledge having known of it through Schoenfelder. Morell then asked if he knew any
other gossip about her. After Menaster denied further knowledge, Morell suggested that
"people must think that I have some competency problems or I'm not a good supervisor,
something to that effect." I find Menaster's account implausible, as it sounded contrived, was
vague and illogical (i.e., a bipolar condition in the family rarely relates to professional
competence and is also a private matter one would be disinclined to reveal to a mere
acquaintance). I do not believe the bad-supervisor comment would be made by a supervisor
under those circumstances or any circumstances, especially to an employee with the reputation
for gossip Menaster appears to have so quickly established.
Menaster testified that he has an anxiety problem causing him to become giddy at times
and making him prone to offer inappropriate comments. He was under treatment for the
condition at the time. Menaster wanted very strongly to make a good impression with his
coworkers, and so he did socialize with many of them. Yet what the Department characterized
as socializing was really only interfacing for the purpose of becoming accepted and learning
the work styles of his coworkers. Menaster admitted that his gossiping early on was excessive,
but he asserted that he corrected it.
8
discussing a case with a bipolar diagnosis, Menaster volunteered that he knew that someone in
her family had the condition (but had been advised to avoid the topic with her).
Following the December 7 meeting, Payton e-mailed Harbridge to give her an account
of his counseling of Menaster, including the e-mail string beginning with Morell's note.
Payton also memorialized the meeting in an e-mail to Menaster, in which he reiterated the
three matters discussed. Harbridge received a copy of that e-mail as well.
Menaster disputed the Morell incident as it was recounted in her e-mail. He stated that
Morell first volunteered that a family member had the condition and only in response did he
acknowledge having known of it through Schoenfelder. Morell then asked if he knew any
other gossip about her. After Menaster denied further knowledge, Morell suggested that
'people must think that I have some competency problems or I'm not a good supervisor,
something to that effect." I find Menaster's account implausible, as it sounded contrived, was
vague and illogical (i.e., a bipolar condition in the family rarely relates to professional
competence and is also a private matter one would be disinclined to reveal to a mere
acquaintance). I do not believe the bad-supervisor comment would be made by a supervisor
under those circumstances or any circumstances, especially to an employee with the reputation
for gossip Menaster appears to have so quickly established.
Menaster testified that he has an anxiety problem causing him to become giddy at times
and making him prone to offer inappropriate comments. He was under treatment for the
condition at the time. Menaster wanted very strongly to make a good impression with his
coworkers, and so he did socialize with many of them. Yet what the Department characterized
as socializing was really only interfacing for the purpose of becoming accepted and learning
the work styles of his coworkers. Menaster admitted that his gossiping early on was excessive,
but he asserted that he corrected it.
8

The day after the Payton meeting, Menaster shared a rumor with Clancey that several
employees, including Harbridge were lesbian. She warned him against repeating it. Later
in
a
meeting the same day with Harbridge and Clancey to discuss Menaster's complaint about
Payton's meeting tactics, Menaster mentioned it to Harbridge in Clancey's presence, resulting
in an awkward interlude. According to Menaster, the same employee who denied the rumored
affair volunteered the rumor the about Harbridge. Menaster asserted his point was simply to
show that others gossiped as well.
A good summary
of
the Department's assessment
of
Menaster following his first month
is contained in a contemporaneous note Schoenfelder made
of
a "long" discussion he had with
Menaster on December
7,
following the meeting with Payton. The memorandum was offered
into evidence by Menaster for the purpose
of
discrediting Schoenfelder' s claim he was
unaware Menaster was in treatment for a psychiatric
disorder-a
conclusion I do not draw
from the document because it is not necessarily inconsistent with Schoenfelder's testimony on
the point5
-describes
how Menaster was anxious and fearful about his job status following
Payton's threat to initiate an EEO investigation. 	Schoenfelder attempted to disabuse Menaster
of
his belief that management was "set against [him]," noting that management had gone to
"great lengths" to arrange for his hiring with the remote office assignment. Schoenfelder
wrote:
5 Schoenfelder admitted that he had spoken with Menaster' s supervising psychiatrist as
a reference prior to the offer
of
employment. The reference explained he had treated Menaster
for anxiety and depression during his probationary period. The psychiatrist's statement that
Menaster was now "fit as a fiddle" led Schoenfelder to believe treatment was not continuing.
Meenakshi was under the impression that Schoenfelder had discussed Menaster's anxiety
condition with the psychiatrist and told Harbridge so. Harbridge told Meenakshi she thought
such a discussion would have been inappropriate on Schoenfelder's part. Toward the very end
of Menaster' s employment, Meenakshi reported the nature of Menaster' s ongoing treatment
directly to Schoenfelder.
9
The day after the Payton meeting, Menaster shared a rumor with Clancey that several
employees, including Harbridge were lesbian. She warned him against repeating it. Later in a
meeting the same day with Harbridge and Clancey to discuss Menaster's complaint about
Payton's meeting tactics, Menaster mentioned it to Harbridge in Clancey's presence, resulting
in an awkward interlude. According to Menaster, the same employee who denied the rumored
affair volunteered the rumor the about Harbridge. Menaster asserted his point was simply to
show that others gossiped as well.
A good summary of the Department's assessment of Menaster following his first month
is contained in a contemporaneous note Schoenfelder made of a "long" discussion he had with
Menaster on December 7, following the meeting with Payton. The memorandum was offered
into evidence by Menaster for the purpose of discrediting Schoenfelder's claim he was
unaware Menaster was in treatment for a psychiatric disorder-a conclusion I do not draw
from the document because it is not necessarily inconsistent with Schoenfelder's testimony on
the point -describes how Menaster was anxious and fearful about his job status following
Payton's threat to initiate an EEO investigation. Schoenfelder attempted to disabuse Menaster
of his belief that management was "set against [him]," noting that management had gone to
"great lengths" to arrange for his hiring with the remote office assignment. Schoenfelder
wrote:
Schoenfelder admitted that he had spoken with Menaster's supervising psychiatrist as
a reference prior to the offer of employment. The reference explained he had treated Menaster
for anxiety and depression during his probationary period. The psychiatrist's statement that
Menaster was now "fit as a fiddle" led Schoenfelder to believe treatment was not continuing.
Meenakshi was under the impression that Schoenfelder had discussed Menaster's anxiety
condition with the psychiatrist and told Harbridge so. Harbridge told Meenakshi she thought
such a discussion would have been inappropriate on Schoenfelder's part. Toward the very end
of Menaster's employment, Meenakshi reported the nature of Menaster's ongoing treatment
directly to Schoenfelder.
9

I [told Menaster] that we all want this situation to work out and
that all he needed to do was stay at his desk[,] focus on his work[,
and] refrain from extensive socialization and inappropriate
comments, joking around. I said there is no need for him to go
around talking with everybody about everything and named a few
examples like why he had arrived the first day of work with his
car covered in un-removed wax, or that [sic] why everybody in
the building knew the story of his fan shearing off into his
radiator.[6] I mentioned that some team member had complained
that he was talking to them [too] frequently and one mentioned
that he went to talk to her nine times during the course of one
particular morning. I stated that sometimes he is provided
information so that he understands the lay of the land or that staff
provide personal information which he seems to repeat to others
trying either to ascertain its correctness or to obtain additional
information about any numbers [sic] of work or personal related
issues. I stated that he must utilize discretion with information he
obtains ... I stated that he had been there about a month and has
already obtained the personal scoop on virtually everyone here
and he had mentioned stories about me though I never asked to
hear what they were. I also mentioned I had heard stories of him
approaching female staff and in some cases requesting their
phone numbers. I stressed to Dr. Menaster that he needed to act
professionally. I again stated that he should refrain from making
jokes or comments about fellow [medical consultants]. I have
repeatedly heard him make comments about [a particular doctor]
having a rubber stamp denial tendency, [and another] being a
skirt chaser. I stated that he needs to stay near his desk, and his
team.
The memorandum concludes with two other issues: Menaster's tendency to find applicants to
be non-severe when they are otherwise, and his assertion based on the advice of colleagues that
managers are not permitted to review the decisions of medical consultants. In regard to the
latter, Schoenfelder explained to Menaster, as Payton had, that such review was necessary to
ensure compliance with the "administrative aspects of the program."
Menaster asserted that he ended up explaining the radiator incident after he was
paged on the overhead by the security guard when a radiator for him was delivered to the
office.
10
I [told Menaster] that we all want this situation to work out and
that all he needed to do was stay at his desk[,] focus on his work[,
and] refrain from extensive socialization and inappropriate
comments, joking around. I said there is no need for him to go
around talking with everybody about everything and named a few
examples like why he had arrived the first day of work with his
car covered in un-removed wax, or that [sic] why everybody in
the building knew the story of his fan shearing off into his
radiator.[ ] I mentioned that some team member had complained
that he was talking to them [too] frequently and one mentioned
that he went to talk to her nine times during the course of one
particular morning. I stated that sometimes he is provided
information so that he understands the lay of the land or that staff
provide personal information which he seems to repeat to others
trying either to ascertain its correctness or to obtain additional
information about any numbers [sic] of work or personal related
issues. I stated that he must utilize discretion with information he
obtains . . . I stated that he had been there about a month and has
already obtained the personal scoop on virtually everyone here
and he had mentioned stories about me though I never asked to
hear what they were. I also mentioned I had heard stories of him
approaching female staff and in some cases requesting their
phone numbers. I stressed to Dr. Menaster that he needed to act
professionally. I again stated that he should refrain from making
jokes or comments about fellow [medical consultants]. I have
repeatedly heard him make comments about [a particular doctor]
having a rubber stamp denial tendency, [and another] being a
skirt chaser. I stated that he needs to stay near his desk, and his
team.
The memorandum concludes with two other issues: Menaster's tendency to find applicants to
be non-severe when they are otherwise, and his assertion based on the advice of colleagues that
managers are not permitted to review the decisions of medical consultants. In regard to the
latter, Schoenfelder explained to Menaster, as Payton had, that such review was necessary to
ensure compliance with the "administrative aspects of the program."
Menaster asserted that he ended up explaining the radiator incident after he was
paged on the overhead by the security guard when a radiator for him was delivered to the
office.
10

The characterization in the memorandum that Menaster was away from his desk a lot
was reported to Payton, who in turn reported the same to the other Sacramento case
adjudication bureau chief, Kay Schlegel. Stavis became aware of the reports as well.
Union Representation
On his first day of work in Sacramento, Menaster was introduced to Clancey. Clancey
informed Menaster that she was available to serve him as a representative of UAPD. 	She gave
him a copy of the UAPD memorandum of understanding (MOU) and provided him with an
overview of his rights as a union member. Menaster began sending Clancey e-mails on a
frequent basis, including seeking information on his rights as a unit member. 	Clancey
corroborated Schoenfelder's observations (both those to which he testified and those recorded
in his drop file notes) regarding excessive gossiping. Menaster asked Clancey for "all the juicy
stuff' about other staff members. He also brought gossip about Clancey back to her, such as
the fact that she could help him obtain employment outside of the office and that she liked to
date younger men. 	Clancey advised Menaster it would behoove him to curtail his gossiping.
Clancey also testified that as a steward she had never had a medical consultant ask as many
personnel (employment condition) questions as Menaster did.
Menaster testified that it was Clancey who shared with him the fact that she liked to
date younger men. I discount this claim, as it came across as too convenient a response, and
was inconsistent with the reports of other incidents involving gossiping on Menaster' s part that
were provided by a number of witnesses at the hearing. At some point Menaster disclosed to
Clancey that he was under treatment for a mental condition. Over time Menaster established
the ability to get Clancey to interrupt her work and go to a private conference room to discuss
his workplace issues.
11
The characterization in the memorandum that Menaster was away from his desk a lot
was reported to Payton, who in turn reported the same to the other Sacramento case
adjudication bureau chief, Kay Schlegel. Stavis became aware of the reports as well.
Union Representation
On his first day of work in Sacramento, Menaster was introduced to Clancey. Clancey
informed Menaster that she was available to serve him as a representative of UAPD. She gave
him a copy of the UAPD memorandum of understanding (MOU) and provided him with an
overview of his rights as a union member. Menaster began sending Clancey e-mails on a
frequent basis, including seeking information on his rights as a unit member. Clancey
corroborated Schoenfelder's observations (both those to which he testified and those recorded
in his drop file notes) regarding excessive gossiping. Menaster asked Clancey for "all the juicy
stuff about other staff members. He also brought gossip about Clancey back to her, such as
the fact that she could help him obtain employment outside of the office and that she liked to
date younger men. Clancey advised Menaster it would behoove him to curtail his gossiping.
Clancey also testified that as a steward she had never had a medical consultant ask as many
personnel (employment condition) questions as Menaster did.
Menaster testified that it was Clancey who shared with him the fact that she liked to
date younger men. I discount this claim, as it came across as too convenient a response, and
was inconsistent with the reports of other incidents involving gossiping on Menaster's part that
were provided by a number of witnesses at the hearing. At some point Menaster disclosed to
Clancey that he was under treatment for a mental condition. Over time Menaster established
the ability to get Clancey to interrupt her work and go to a private conference room to discuss
his workplace issues.
11

In early December, Menaster approached Schoenfelder with Clancey and a psychiatric
medical consultant to object to Schoenfelder's instruction that Menaster change the primary
diagnosis on one of his cases. Menaster testified that Schoenfelder responded with an implied
threat to report him to the state medical board, a claim Schoenfelder flatly denied. He also
testified that Clancey advised him a grievance could not be filed on his behalf because he
would be fired as a result of it. Meenakshi testified that she recognized that Schoenfelder had
to referee more disputes between Menaster and the DEA's than with other medical consultants.
Typically the issue involved whether or not the mental disability was non-severe. 7
Menaster testified that the Payton meeting unnerved him and increased his level of
anxiety. He immediately complained to Clancey about the lack of union representation during
that meeting. Clancey was beginning to feel the need of assistance as a result of these events
and contacted Meenakshi to assist her with Menaster' s situation. Meenakshi agreed.
Meenakshi, called by Menaster in his case-in-chief, also corroborated Schoenfelder's reports
about excessive socializing. Meenakshi testified that two or three other employees complained
that Menaster disturbed them by visiting. 	She advised one of them to raise the matter with
Menaster directly, which the employee claimed she did, but with only a temporary corrective
response by Menaster. Meenakshi testified that only one other medical consultant "wanders"
around the office and socializes, but she believes it is because he has completed his work.
Menaster complained to Meenakshi about his working conditions. He complained there
was too much noise in the office, too much foot traffic around him, and too many people
coming into this office, all of which affected his productivity. Meenakshi believed Menaster' s
7 According to Meenakshi a DEA had to go through the team manager if he/she wanted
to ask a medical consultant to change their opinion. However, she also admitted that when a
medical consultant disagreed with the DEA, it was virtually assumed that the DEA would want
the medical consultant to change their opinion. Schoenfelder admitted that the Department
will ask medical consultants to consider changing their opinion, but never insists. If there is no
change the Department seeks a second opinion.
12
In early December, Menaster approached Schoenfelder with Clancey and a psychiatric
medical consultant to object to Schoenfelder's instruction that Menaster change the primary
diagnosis on one of his cases. Menaster testified that Schoenfelder responded with an implied
threat to report him to the state medical board, a claim Schoenfelder flatly denied. He also
testified that Clancey advised him a grievance could not be filed on his behalf because he
would be fired as a result of it. Meenakshi testified that she recognized that Schoenfelder had
to referee more disputes between Menaster and the DEA's than with other medical consultants.
Typically the issue involved whether or not the mental disability was non-severe.'
Menaster testified that the Payton meeting unnerved him and increased his level of
anxiety. He immediately complained to Clancey about the lack of union representation during
that meeting. Clancey was beginning to feel the need of assistance as a result of these events
and contacted Meenakshi to assist her with Menaster's situation. Meenakshi agreed.
Meenakshi, called by Menaster in his case-in-chief, also corroborated Schoenfelder's reports
about excessive socializing. Meenakshi testified that two or three other employees complained
that Menaster disturbed them by visiting. She advised one of them to raise the matter with
Menaster directly, which the employee claimed she did, but with only a temporary corrective
response by Menaster. Meenakshi testified that only one other medical consultant "wanders"
around the office and socializes, but she believes it is because he has completed his work.
Menaster complained to Meenakshi about his working conditions. He complained there
was too much noise in the office, too much foot traffic around him, and too many people
coming into this office, all of which affected his productivity. Meenakshi believed Menaster's
According to Meenakshi a DEA had to go through the team manager if he/she wanted
to ask a medical consultant to change their opinion. However, she also admitted that when a
medical consultant disagreed with the DEA, it was virtually assumed that the DEA would want
the medical consultant to change their opinion. Schoenfelder admitted that the Department
will ask medical consultants to consider changing their opinion, but never insists. If there is no
change the Department seeks a second opinion.
12

noise complaints were excessive. Menaster explained to Meenakshi, too, that he was
under
psychiatric treatment, receiving counseling, and taking an anti-depressant medication to
control his anxiety. 	When he complained to her about Schoenfelder "micromanaging"
him,
she asked for an explanation. Menaster cited a number
of
examples suggesting that
Schoenfelder was closely supervising his case work. He claimed that Schoenfelder ordered
him to change his opinions, though she had nothing to corroborate his claim that it was a
mandatory instruction. Menaster e-mailed her almost daily to complain about some
DEA
asking him to change his decision.
Menaster testified that he informed both Payton and Schoenfelder
of
his psychiatric
condition. 	Schoenfelder did not specifically deny that but was unwilling to concede that
Menaster told him he was being treated by a psychiatrist.
December 14 Meeting
Consistent with Schoenfelder' s memorandum quoted above, Menaster acknowledged
that he was counseled about his contact with other employees in the office immediately after
the December 7 meeting. 	Schoenfelder advised him he had a tendency to "overstay his
welcome" with coworkers. According to Schoenfelder himself, his approach was to
"get
[Menaster] pointed in the right direction; move on and get some work done." Schoenfelder
agreed that after Menaster was counseled, his socializing and roaming ceased to be an issue.
Clancey arranged for a UAPD meeting with Harbridge on December 14 to discuss
Menaster's employment situation. In her mind, the union had a concern about Menaster
passing probation, and the goal
of
the meeting was to lay some groundwork to address that
concern. Clancey readily conceded that Menaster was competent in terms
of
the knowledge
and skill requirements of his position. Clancey consulted with UAPD Business Agent Jim
Moore.
13
noise complaints were excessive. Menaster explained to Meenakshi, too, that he was under
psychiatric treatment, receiving counseling, and taking an anti-depressant medication to
control his anxiety. When he complained to her about Schoenfelder "micromanaging" him,
she asked for an explanation. Menaster cited a number of examples suggesting that
Schoenfelder was closely supervising his case work. He claimed that Schoenfelder ordered
him to change his opinions, though she had nothing to corroborate his claim that it was a
mandatory instruction. Menaster e-mailed her almost daily to complain about some DEA
asking him to change his decision.
Menaster testified that he informed both Payton and Schoenfelder of his psychiatric
condition. Schoenfelder did not specifically deny that but was unwilling to concede that
Menaster told him he was being treated by a psychiatrist.
December 14 Meeting
Consistent with Schoenfelder's memorandum quoted above, Menaster acknowledged
that he was counseled about his contact with other employees in the office immediately after
the December 7 meeting. Schoenfelder advised him he had a tendency to "overstay his
welcome" with coworkers. According to Schoenfelder himself, his approach was to "get
[Menaster] pointed in the right direction; move on and get some work done." Schoenfelder
agreed that after Menaster was counseled, his socializing and roaming ceased to be an issue.
Clancey arranged for a UAPD meeting with Harbridge on December 14 to discuss
Menaster's employment situation. In her mind, the union had a concern about Menaster
passing probation, and the goal of the meeting was to lay some groundwork to address that
concern. Clancey readily conceded that Menaster was competent in terms of the knowledge
and skill requirements of his position. Clancey consulted with UAPD Business Agent Jim
Moore.
13

Separately, Meenakshi took it upon herself to speak with Harbridge informally in
advance
of
the meeting for approximately
15
minutes. This discussion took place two days ·
after the Payton meeting. Meenakshi inquired
of
Harbridge whether Menaster could be
assigned a cubicle in a corner
of
the office where there would be less traffic. That cubicle was
also closer to hers, allowing Menaster to consult with her on his cases. Meenakshi explained
she believed Menaster' s noise complaints stemmed from his psychiatric condition. Har bridge
did not agree to the new cubicle but did take Meenakshi up on her offer to provide mentoring.
The December 14 meeting was attended by Harbridge, Payton, Schoenfelder, Clancey,
Meenakshi, Moore, and Menaster. UAPD did not explicitly announce their goal as passing
probation, though its list
of
items to discuss ended with an inquiry about the upcoming first
probationary report. The meeting began with certain disputes Menaster had pertaining to
travel checks, overtime, and annual leave, the specifics
of
which are unimportant. The next
topic concerned Menaster's schedule at Oakland and the date
of
his transfer there. Harbridge
explained that the timing was contingent on the Department being satisfied that Menaster' s
initial training had been completed. Someone noted that Menaster had concerns about the
availability
of
trainers (i.e., mentors) and that the problem had been largely addressed once
Meenakshi began working with him. 	The parties agreed that Meenakshi and Schoenfelder
would provide the primary feedback to Menaster on cases.
The issues concerning Menaster' s gossiping and the December 8 meeting were also
discussed. 	Schoenfelder reported that he had been counseling Menaster on the issue since he
began employment. Clancey expressed concerns about Payton being "heavy handed" in the
December 8 meeting, and raised the issue about the right to representation at such meetings.
While Payton asserted that routine encounters with staff do not trigger the right, Schoenfelder
advised Menaster that if at any time he felt the need for a representative, he should ask.
14
Separately, Meenakshi took it upon herself to speak with Harbridge informally in
advance of the meeting for approximately 15 minutes. This discussion took place two days
after the Payton meeting. Meenakshi inquired of Harbridge whether Menaster could be
assigned a cubicle in a corner of the office where there would be less traffic. That cubicle was
also closer to hers, allowing Menaster to consult with her on his cases. Meenakshi explained
she believed Menaster's noise complaints stemmed from his psychiatric condition. Harbridge
did not agree to the new cubicle but did take Meenakshi up on her offer to provide mentoring.
The December 14 meeting was attended by Harbridge, Payton, Schoenfelder, Clancey,
Meenakshi, Moore, and Menaster. UAPD did not explicitly announce their goal as passing
probation, though its list of items to discuss ended with an inquiry about the upcoming first
probationary report. The meeting began with certain disputes Menaster had pertaining to
travel checks, overtime, and annual leave, the specifics of which are unimportant. The next
topic concerned Menaster's schedule at Oakland and the date of his transfer there. Harbridge
explained that the timing was contingent on the Department being satisfied that Menaster's
initial training had been completed. Someone noted that Menaster had concerns about the
availability of trainers (i.e., mentors) and that the problem had been largely addressed once
Meenakshi began working with him. The parties agreed that Meenakshi and Schoenfelder
would provide the primary feedback to Menaster on cases.
The issues concerning Menaster's gossiping and the December 8 meeting were also
discussed. Schoenfelder reported that he had been counseling Menaster on the issue since he
began employment. Clancey expressed concerns about Payton being "heavy handed" in the
December 8 meeting, and raised the issue about the right to representation at such meetings.
While Payton asserted that routine encounters with staff do not trigger the right, Schoenfelder
advised Menaster that if at any time he felt the need for a representative, he should ask.
14

Harbridge agreed to send a communication to staff that when management believes the
right
is
involved it will notify the employee prior to such a meeting.
Moore expressed his view that the Department should do more to "accommodate"
Menaster's particular needs. Harbridge demurred, insisting that Menaster did not need
any
special accommodation and that all employees in the Department were treated equally.
Meenakshi believed in the Department's need to reasonably accommodate an employee,
but
acknowledged that UAPD was not referring to that concept in terms
of
the Americans
with
Disabilities Act.
Toward the end
of
the meeting, Schoenfelder expressed that Menaster' s behavior
in
the
past few days was exactly what management was expecting and that while some issues
that
had
surfaced would be reflected in the first probation report,
if
Menaster "does well, completes his
work, and does not have interaction issues," he would be fine. 	After the meeting, and after
consultation with labor relations staff, Harbridge issued a memorandum reminding the
staff of
their right to request union representation.
First Probation Report
Menaster was issued
his,
first probationary report on December 29. Schoenfelder
prepared the report. He gave Menaster a summative rating
of
borderline "standard." A high
standard rating was given for Menaster' s enthusiasm for work. "Improvement needed" was in
two
of
the six categories, specifically in the areas
of
"work habits" and "relationships with
people." The latter category had a low, "improvement needed" grade. In the explanatory
comments, Schoenfelder cited the excessive socialization had been followed by improvement.
As to the relationships rating, Schoenfelder cited Menaster's over-familiarity with staff, the
gossiping, and inappropriate comments. When presented with the report, Menaster refused to
15
Harbridge agreed to send a communication to staff that when management believes the right is
involved it will notify the employee prior to such a meeting.
Moore expressed his view that the Department should do more to "accommodate"
Menaster's particular needs. Harbridge demurred, insisting that Menaster did not need any
special accommodation and that all employees in the Department were treated equally.
Meenakshi believed in the Department's need to reasonably accommodate an employee, but
acknowledged that UAPD was not referring to that concept in terms of the Americans with
Disabilities Act.
Toward the end of the meeting, Schoenfelder expressed that Menaster's behavior in the
past few days was exactly what management was expecting and that while some issues that had
surfaced would be reflected in the first probation report, if Menaster "does well, completes his
work, and does not have interaction issues," he would be fine. After the meeting, and after
consultation with labor relations staff, Harbridge issued a memorandum reminding the staff of
their right to request union representation.
First Probation Report
Menaster was issued his first probationary report on December 29. Schoenfelder
prepared the report. He gave Menaster a summative rating of borderline "standard." A high
standard rating was given for Menaster's enthusiasm for work. "Improvement needed" was in
two of the six categories, specifically in the areas of "work habits" and "relationships with
people." The latter category had a low, "improvement needed" grade. In the explanatory
comments, Schoenfelder cited the excessive socialization had been followed by improvement.
As to the relationships rating, Schoenfelder cited Menaster's over-familiarity with staff, the
gossiping, and inappropriate comments. When presented with the report, Menaster refused to
15

sign the report until UAPD had reviewed it. After Clancey and Meenakshi had an opportunity
to review it, they both believed it to be fair. 	The report remained unsigned.
Transfer to Oakland
After consulting with Meenakshi, Schoenfelder deemed Menaster's training to be
sufficient to permit him to begin working in Oakland. Menaster began work in the Oakland
office on January 17. Schoenfelder was present the first two days to ensure there was a
smooth
transition. He advised Menaster to stay at his desk and not "make a splash." Menaster denied
Schoenfelder made such a statement. I believe such a warning was
given-even if
those
precise words were not
used-since
it was consistent with the prior history
of
counseling and
Schoenfelder's decision to be in Oakland the first two days. In addition, Schoenfelder
documented his use
of
that phrase in a contemporaneous note to himself.
Almost immediately, Schoenfelder began receiving reports that Menaster was
"out
and
about." By the end
of
the first week, Schoenfelder e-mailed Menaster to remind him he was a
Sacramento employee who was to have minimal interaction with Oakland staff. In response to
other reports from Sacramento staff, Schoenfelder also advised Menaster to avoid making long
distance calls to Sacramento staff
if
they were not work related.
Annabella Ramos was Menaster' s on-site supervisor in Oakland. She was only to
address Menaster's immediate issues and be a conduit of information to Schoenfelder. Ramos
advised Menaster to stay at his desk, after hearing reports he wandered around the office,	
advised Menaster to stay at his desk, after hearing reports he wandered around the office,
socialized too much, and made a coworker across the aisle from his cubicle feel uncomfortable.
On January 25, Ramos reported to Schoenfelder and Harbridge by e-mail a 30-minute
telephone call by an upset Menaster, prompting complaints from staff. Ramos, whose office
was within eyesight of his, noticed herself his voice was loud, especially when he got "quite
upset and agitated" on the telephone. She became concerned when he was unable or unwilling
16
sign the report until UAPD had reviewed it. After Clancey and Meenakshi had an opportunity
to review it, they both believed it to be fair. The report remained unsigned.
Transfer to Oakland
After consulting with Meenakshi, Schoenfelder deemed Menaster's training to be
sufficient to permit him to begin working in Oakland. Menaster began work in the Oakland
office on January 17. Schoenfelder was present the first two days to ensure there was a smooth
transition. He advised Menaster to stay at his desk and not "make a splash." Menaster denied
Schoenfelder made such a statement. I believe such a warning was given-even if those
precise words were not used-since it was consistent with the prior history of counseling and
Schoenfelder's decision to be in Oakland the first two days. In addition, Schoenfelder
documented his use of that phrase in a contemporaneous note to himself.
Almost immediately, Schoenfelder began receiving reports that Menaster was "out and
about." By the end of the first week, Schoenfelder e-mailed Menaster to remind him he was a
Sacramento employee who was to have minimal interaction with Oakland staff. In response to
other reports from Sacramento staff, Schoenfelder also advised Menaster to avoid making long
distance calls to Sacramento staff if they were not work related.
Annabella Ramos was Menaster's on-site supervisor in Oakland. She was only to
address Menaster's immediate issues and be a conduit of information to Schoenfelder. Ramos
socialized too much, and made a coworker across the aisle from his cubicle feel uncomfortable.
On January 25, Ramos reported to Schoenfelder and Harbridge by e-mail a 30-minute
telephone call by an upset Menaster, prompting complaints from staff. Ramos, whose office
was within eyesight of his, noticed herself his voice was loud, especially when he got "quite
upset and agitated" on the telephone. She became concerned when he was unable or unwilling
16

to moderate a loud cough he had. When she brought his loudness to his attention,
Menaster
criticized others for also being loud, leading Ramos to believe he complained too much.
	When
Menaster defended his wandering by saying he was looking for his union steward, Ramos
advised him to try contacting the steward by e-mail.
Beginning the week following Schoenfelder's counseling e-mail, Schoenfelder
received
reports through Harbridge
of
three female Oakland staff members complaining to Ramos
about
Menaster' s "expressions
of
friendliness." One claimed that Menaster sat on her desk close to
her while conversing with her, making her uncomfortable. Another reported he announced he
was socially available. A third complained that Menaster was walking around the office
in
his
stocking feet. 8 No investigation
of
these complaints was undertaken because the Oakland
office and Schoenfelder believed them to be "borderline." Separately, Payton received
comments from his counterpart in the Oakland office about Menaster taking up the time
of
other consultants, asking questions in excess, throwing a tantrum about his office location, and
his over-familiarity with staff.
Soon after his arrival in Oakland, Menaster complained to Schoenfelder about his
working conditions, noting his cubicle was too noisy. Menaster's cubicle was adjacent to one
hallway and close to another. He was also adjacent to an area containing copiers and scanners,
M Menaster recalled that he happened upon the three women together in a group;
someone asked
if
he was gay or straight, married or single. The questions made him
uncomfortable. He answered he was single, and the women misconstrued his intent by then
offering to set him up on dates and identifying for him a couple
of
other women in the office
who were single. Menaster denied sitting on the second coworker's desk, but acknowledged
leaning against it at a distance
of
about three feet. 	Menaster testified that he walked around the
office in his socks because his feet hurt and he believed it to be acceptable having witnessed
the practice by others in Oakland and Sacramento. I did not find this account credible.
	If
the
conversation with the women had really made him uncomfortable, I doubt he would have
ended up alone with one of the women, as he testified, continuing a conversation leaning up
against her desk in which she went on, according to Menaster, to share her religious beliefs
with him.
17
to moderate a loud cough he had. When she brought his loudness to his attention, Menaster
criticized others for also being loud, leading Ramos to believe he complained too much. When
Menaster defended his wandering by saying he was looking for his union steward, Ramos
advised him to try contacting the steward by e-mail.
Beginning the week following Schoenfelder's counseling e-mail, Schoenfelder received
reports through Harbridge of three female Oakland staff members complaining to Ramos about
Menaster's "expressions of friendliness." One claimed that Menaster sat on her desk close to
her while conversing with her, making her uncomfortable. Another reported he announced he
was socially available. A third complained that Menaster was walking around the office in his
stocking feet. No investigation of these complaints was undertaken because the Oakland
office and Schoenfelder believed them to be "borderline." Separately, Payton received
comments from his counterpart in the Oakland office about Menaster taking up the time of
other consultants, asking questions in excess, throwing a tantrum about his office location, and
his over-familiarity with staff.
Soon after his arrival in Oakland, Menaster complained to Schoenfelder about his
working conditions, noting his cubicle was too noisy. Menaster's cubicle was adjacent to one
hallway and close to another. He was also adjacent to an area containing copiers and scanners,
enaster recalled that he happened upon the three women together in a group;
someone asked if he was gay or straight, married or single. The questions made him
uncomfortable. He answered he was single, and the women misconstrued his intent by then
offering to set him up on dates and identifying for him a couple of other women in the office
who were single. Menaster denied sitting on the second coworker's desk, but acknowledged
leaning against it at a distance of about three feet. Menaster testified that he walked around the
office in his socks because his feet hurt and he believed it to be acceptable having witnessed
the practice by others in Oakland and Sacramento. I did not find this account credible. If the
conversation with the women had really made him uncomfortable, I doubt he would have
ended up alone with one of the women, as he testified, continuing a conversation leaning up
against her desk in which she went on, according to Menaster, to share her religious beliefs
with him.
17

which were noisy and where employees would converse. He complained about the computer
system being too slow, a complaint Schoenfelder acknowledged he heard from others as well.
Menaster admitted that Ramos advised him to stay at his desk. But he asserted
that
Ramos was never available at times when he wanted to complain about noise or coworkers
bothering him, a claim I reject given that her office was
15
feet from his. Ramos
accommodated the request for a different cubicle, but its location did nothing to ameliorate his
issue with noise. The new cubicle was also close to two hallways, and because the adjacent
cubicle was empty, the telephone would ring for long periods with no one answering it.
Menaster contacted the Oakland office UAPD steward, Stewart Bussey, shortly after his arrival
in Oakland. He complained to Bussey about the noise. Bussey informed him he should
not
pursue a grievance because the Department would fire him. Bussey did not testify.
Menaster had concerns about Schoenfelder' s productivity expectations once in
Oakland. Menaster complained to Schoenfelder about a medical consultant in the Oakland
office being unavailable for mentoring. Also, beginning in Sacramento and continuing once in
Oakland, Menaster received more "aged" cases, which involve more information and take
longer to process. Menaster felt he was being singled out for such cases. The computers
in
Oakland took longer to log on and transfer files than those in Sacramento because
of
an issue
with the servers.
January 25 and 26 Meetings
Clancey, with Meenakshi and Moore's assistance, scheduled a meeting with Harbridge
on January 26 to again discuss Menaster's situation. Clancey also arranged for a pre-meeting
with management on January 25 without Menaster. The goal of the pre-meeting was to
establish groundwork for a productive meeting on the 26th. At the January 25 meeting, also
attended by Schoenfelder, Meenakshi, and Moore, the participants talked candidly about
18
which were noisy and where employees would converse. He complained about the computer
system being too slow, a complaint Schoenfelder acknowledged he heard from others as well.
Menaster admitted that Ramos advised him to stay at his desk. But he asserted that
Ramos was never available at times when he wanted to complain about noise or coworkers
bothering him, a claim I reject given that her office was 15 feet from his. Ramos
accommodated the request for a different cubicle, but its location did nothing to ameliorate his
issue with noise. The new cubicle was also close to two hallways, and because the adjacent
cubicle was empty, the telephone would ring for long periods with no one answering it.
Menaster contacted the Oakland office UAPD steward, Stewart Bussey, shortly after his arrival
in Oakland. He complained to Bussey about the noise. Bussey informed him he should not
pursue a grievance because the Department would fire him. Bussey did not testify.
Menaster had concerns about Schoenfelder's productivity expectations once in
Oakland. Menaster complained to Schoenfelder about a medical consultant in the Oakland
office being unavailable for mentoring. Also, beginning in Sacramento and continuing once in
Oakland, Menaster received more "aged" cases, which involve more information and take
longer to process. Menaster felt he was being singled out for such cases. The computers in
Oakland took longer to log on and transfer files than those in Sacramento because of an issue
with the servers.
January 25 and 26 Meetings
Clancey, with Meenakshi and Moore's assistance, scheduled a meeting with Harbridge
on January 26 to again discuss Menaster's situation. Clancey also arranged for a pre-meeting
with management on January 25 without Menaster. The goal of the pre-meeting was to
establish groundwork for a productive meeting on the 26th. At the January 25 meeting, also
attended by Schoenfelder, Meenakshi, and Moore, the participants talked candidly about
18

Menaster's Oakland assignment and what could be done to improve it. One or both
of
the
stewards acknowledged that Menaster was calling almost daily to complain about noise,
the
slowness
of
the computers,9 the absence
of
an on-site mentor, the absence
of
a steward,
the
order in which to take cases ("aged" cases were first), and Schoenfelder's productivity
requirements. Harbridge agreed to have Schoenfelder investigate the matters.
10
According to Schoenfelder's notes
of
the January
25
meeting, Moore agreed the first
probation report was fair, and all in the meeting agreed that Menaster's "problems seem to
be
very significant and the way he reacts to issues and fellow staff cause significant disruption in
the work environment." Schoenfelder's notes further state:	
"It
was acknowledged by all
that
[w]e have only a certain amount
of
resources that we can devote to individual employees." In
that context, it was UAPD's desire to make a final attempt to help Menaster pass probation.
UAPD described the situation as Menaster "engaging in behaviors that take him down the
wrong road." U APD indicated that Menaster "may" need some type
of
"reasonable
accommodation," like a "blind or deaf person." The Department's goal for the January
26
meeting was to "restate" the plan to Menaster, namely, to avoid being visible and curtail
fraternization.
On January 26, the UAPD group caucused prior to the meeting with management.
Moore advised Menaster to let UAPD do the talking and not complain. Menaster asked that he
Schoenfelder acknowledged that electronic cases were better suited to the medical
consultant position held by Menaster because he was stationed remotely. Indeed, use
of
the
technology had been factored into the plans for the new position.
" Schoenfelder acknowledged that electronic cases were better suited to the medical
consultant position held by Menaster because he was stationed remotely. Indeed, use of the
technology had been factored into the plans for the new position.
10
Schoenfelder inferred that UAPD's purpose for the January 26 meeting was to
19
Menaster's Oakland assignment and what could be done to improve it. One or both of the
stewards acknowledged that Menaster was calling almost daily to complain about noise, the
slowness of the computers," the absence of an on-site mentor, the absence of a steward, the
order in which to take cases ("aged" cases were first), and Schoenfelder's productivity
requirements. Harbridge agreed to have Schoenfelder investigate the matters."
According to Schoenfelder's notes of the January 25 meeting, Moore agreed the first
probation report was fair, and all in the meeting agreed that Menaster's "problems seem to be
very significant and the way he reacts to issues and fellow staff cause significant disruption in
the work environment." Schoenfelder's notes further state: "It was acknowledged by all that
[wje have only a certain amount of resources that we can devote to individual employees." In
that context, it was UAPD's desire to make a final attempt to help Menaster pass probation.
UAPD described the situation as Menaster "engaging in behaviors that take him down the
wrong road." UAPD indicated that Menaster "may" need some type of "reasonable
accommodation," like a "blind or deaf person." The Department's goal for the January 26
meeting was to "restate" the plan to Menaster, namely, to avoid being visible and curtail
fraternization.
On January 26, the UAPD group caucused prior to the meeting with management.
Moore advised Menaster to let UAPD do the talking and not complain. Menaster asked that he
"Schoenfelder inferred that UAPD's purpose for the January 26 meeting was to
address Menaster' s Oakland situation in light of the fact that he had gotten off to a "shaky
start." Clancey corroborated that view, testifying that UAPD viewed Menaster's situation as
"problematic" and that the union wanted to acknowledge the continuing behavioral issues,
including his heavy communication with Sacramento staff. Clancey received a myriad
of
e-mails from Menaster, many that were disputatious in character and contained little substance
of import to her.
address Menaster's Oakland situation in light of the fact that he had gotten off to a "shaky
start." Clancey corroborated that view, testifying that UAPD viewed Menaster's situation as
"problematic" and that the union wanted to acknowledge the continuing behavioral issues,
including his heavy communication with Sacramento staff. Clancey received a myriad of
e-mails from Menaster, many that were disputatious in character and contained little substance
of import to her.
19

be reassigned to different supervisor, believing he had a right to such under the state
constitution. The matter of a grievance came up. Moore advised against it, saying it would
lead to his termination.
The formal meeting with Harbridge was also attended by Payton, Schoenfelder, Moore,
Meenakshi and Menaster. Moore began the meeting asserting that everyone had a common
goal of improving Menaster' s productivity. Har bridge interrupted and began describing the
Oakland situation and mentioning that Menaster was "driving the union stewards crazy."
Moore became angry. He objected to Harbridge's comments as turning the meeting into a
"counseling session." An awkward silence was broken by Meenakshi. The parties then
focused on solutions to Menaster's complaints. Moore proposed the notion of
"accommodating" Menaster-though again not in the sense of the legal duty to accommodate
for disability, but addressing Menaster's particular needs-analogizing him to a person "not
having a leg or an eye." Clancey testified it was used in the sense of recognizing Menaster's
heightened sensitivity (to external stimuli). 11 Harbridge maintained that Menaster would be
treated like other employees until the Department was informed differently (i.e., that he had a
specific condition).
During the meeting, Schoenfelder cited the fact that Menaster had sent him 35 e-mails
in one day but had not closed any cases. Harbridge appeared angry to Menaster after that
comment. Menaster defended himself saying he had closed nine cases that day. 	Schoenfelder
expressed concern that Menaster declined to sign for receipt of his probation report and wanted
UAPD involved. The matter of the female Oakland workers was discussed. Menaster was
nAn incident in the hearing corroborates the fact that Menaster is highly sensitive to
distracting noise. While he was examining Schoenfelder, he abruptly turned to opposing
counsel and complained about a tapping sound made by either his fingers or pen. Counsel was
taken aback. The hearing officer did not hear the noise.
20
be reassigned to different supervisor, believing he had a right to such under the state
constitution. The matter of a grievance came up. Moore advised against it, saying it would
lead to his termination.
The formal meeting with Harbridge was also attended by Payton, Schoenfelder, Moore,
Meenakshi and Menaster. Moore began the meeting asserting that everyone had a common
goal of improving Menaster's productivity. Harbridge interrupted and began describing the
Oakland situation and mentioning that Menaster was "driving the union stewards crazy."
Moore became angry. He objected to Harbridge's comments as turning the meeting into a
"counseling session." An awkward silence was broken by Meenakshi. The parties then
focused on solutions to Menaster's complaints. Moore proposed the notion of
"accommodating" Menaster-though again not in the sense of the legal duty to accommodate
for disability, but addressing Menaster's particular needs-analogizing him to a person "not
having a leg or an eye." Clancey testified it was used in the sense of recognizing Menaster's
heightened sensitivity (to external stimuli)." Harbridge maintained that Menaster would be
treated like other employees until the Department was informed differently (i.e., that he had a
specific condition).
During the meeting, Schoenfelder cited the fact that Menaster had sent him 35 e-mails
in one day but had not closed any cases. Harbridge appeared angry to Menaster after that
comment. Menaster defended himself saying he had closed nine cases that day. Schoenfelder
expressed concern that Menaster declined to sign for receipt of his probation report and wanted
UAPD involved. The matter of the female Oakland workers was discussed. Menaster was
A 	incident in the hearing corroborates the fact that Menaster is highly sensitive to
distracting noise. While he was examining Schoenfelder, he abruptly turned to opposing
counsel and complained about a tapping sound made by either his fingers or pen. Counsel was
taken aback. The hearing officer did not hear the noise.
20

reminded
of
the Department's zero tolerance policy. Schoenfelder noted that Menaster' s
cubicle had been moved and that a minimum
of
15
minutes
of
daily mentoring had been
arranged. Harbridge warned that Menaster on his part would have to "cease and desist."
12
A
comment was made that Menaster tended
to
over-react to situations. Menaster felt
Schoenfelder was overly accusatory and he feared his job was in jeopardy after the meeting.
Immediately after the meeting, Schoenfelder met privately with Menaster. According
to Menaster, Schoenfelder's mien was conciliatory, conceding the earlier meeting had
been
"tough." He told Menaster that the complaints by the Oakland women were not a major
concern.
13
However, he informed Menaster that he needed to process 20 cases each day. 	This
caused Menaster to cry. 	Schoenfelder stepped away, came back, and then admitted the figure
was too high. He advised Menaster to just "stick to his work." At the hearing, Meenakshi
agreed this expectation was unreasonable for a new medical consultant. Schoenfelder admitted
as much, explaining his figure was intended more as a goal, and when Meenakshi raised it with
him, he reported back to her that Menaster had been assured
of
such.
Schoenfelder also instructed Menaster to cease complaining and direct all issues to him.
Menaster testified that after January 26, he couched his complaints to Schoenfelder concerning
his ongoing issues more "subtly." Clancey received copies
of
Menaster's e-mails during this
period
of
time. 	She received between
13
and
33
e-mails daily, many
of
which she did not read.
Shortly after the meeting, Schoenfelder began drafting a memorandum to Menaster to
Menaster complained to Meenakshi about his other medical consultant mentors
confusing him and diminishing his productivity because they disagreed with each other,
leaving him unsure of which analysis to follow. The January 26 meeting was intended to
channel most consultations through Meenakshi and Schoenfelder. Schlegel testified that one
of the reasons why multiple mentors are arranged for new medical consultants is to allow them
to experience the range of perspectives.
"Menaster complained to Meenakshi about his other medical consultant mentors
confusing him and diminishing his productivity because they disagreed with each other,
leaving him unsure of which analysis to follow. The January 26 meeting was intended to
channel most consultations through Meenakshi and Schoenfelder. Schlegel testified that one
of the reasons why multiple mentors are arranged for new medical consultants is to allow them
to experience the range of perspectives.
13
At some point, the Oakland office requested that Menaster have no further contact
with staff. Thereafter, Menaster never saw the three women who complained.
21
reminded of the Department's zero tolerance policy. Schoenfelder noted that Menaster's
cubicle had been moved and that a minimum of 15 minutes of daily mentoring had been
arranged. Harbridge warned that Menaster on his part would have to "cease and desist."12 A
comment was made that Menaster tended to over-react to situations. Menaster felt
Schoenfelder was overly accusatory and he feared his job was in jeopardy after the meeting.
Immediately after the meeting, Schoenfelder met privately with Menaster. According
to Menaster, Schoenfelder's mien was conciliatory, conceding the earlier meeting had been
"tough." He told Menaster that the complaints by the Oakland women were not a major
concern. " However, he informed Menaster that he needed to process 20 cases each day. This
caused Menaster to cry. Schoenfelder stepped away, came back, and then admitted the figure
was too high. He advised Menaster to just "stick to his work." At the hearing, Meenakshi
agreed this expectation was unreasonable for a new medical consultant. Schoenfelder admitted
as much, explaining his figure was intended more as a goal, and when Meenakshi raised it with
him, he reported back to her that Menaster had been assured of such.
Schoenfelder also instructed Menaster to cease complaining and direct all issues to him.
Menaster testified that after January 26, he couched his complaints to Schoenfelder concerning
his ongoing issues more "subtly." Clancey received copies of Menaster's e-mails during this
period of time. She received between 13 and 33 e-mails daily, many of which she did not read.
Shortly after the meeting, Schoenfelder began drafting a memorandum to Menaster to
At some point, the Oakland office requested that Menaster have no further contact
with staff. Thereafter, Menaster never saw the three women who complained.
21

memorialize the agreements from the meeting. He advised Ramos
of
the same, emphasizing
that Menaster was to direct his issues to him. Later, sometime after an incident that occurred
on February
1,
Schoenfelder would title the document an "expectations memo."
Complaint About the February 1 Bake Sale
On the morning
of
February
1,
the Oakland office was conducting a charitable
fundraising bake sale in one
of
its rooms. 	The event was held with the knowledge and assent
of
Oakland Branch Chief Lucy Washington. Menaster became anxious because
of
the
distractions caused by staff walking to and from the room, talking loudly. 	In addition,
Menaster was upset with e-mails from some analysts earlier in the morning asking him to
change his opinion, as well as a problem with information not loading on his computer.
	He
decided to contact Meenakshi (by e-mail and telephone) to complain and "vent [his]
frustrations." Unable to reach Meenakshi, he called Clancey. Menaster left the building with
his cell phone, hoping a brisk walk might help calm him down. Menaster believed the bake
sale constituted an "incompatible activity" on the part
of
Department employees. He felt
it
hypocritical
of
the Department to curtail his socializing, when the bake sale amounted to the
same.
Shortly before 9:00 a.m., just
as
Clancey was arriving in her office, she picked up
Menaster's call. The caller was so agitated ("ranting and raving)" that Clancey
was unable to ascertain who it was and almost hung up. 	She finally recognized the caller.
Menaster was complaining ("I can't stand this"; "I've got this going on and that going on";
"I've got to quit"; "[I'm] being micromanaged"). Menaster mentioned a "god damn" "noisy"
bake sale was going on. He also complained about a computer technician. At some point,
Menaster let out a "primal scream" (a "wild animal-type scream"). Clancey attempted to use
crisis-hotline skills she had learned to calm Menaster down. 	She began asking him a series of
22
memorialize the agreements from the meeting. He advised Ramos of the same, emphasizing
that Menaster was to direct his issues to him. Later, sometime after an incident that occurred
on February 1, Schoenfelder would title the document an "expectations memo."
Complaint About the February 1 Bake Sale
On the morning of February 1, the Oakland office was conducting a charitable
fundraising bake sale in one of its rooms. The event was held with the knowledge and assent
of Oakland Branch Chief Lucy Washington. Menaster became anxious because of the
distractions caused by staff walking to and from the room, talking loudly. In addition,
Menaster was upset with e-mails from some analysts earlier in the morning asking him to
change his opinion, as well as a problem with information not loading on his computer. He
decided to contact Meenakshi (by e-mail and telephone) to complain and "vent [his]
frustrations." Unable to reach Meenakshi, he called Clancey. Menaster left the building with
his cell phone, hoping a brisk walk might help calm him down. Menaster believed the bake
sale constituted an "incompatible activity" on the part of Department employees. He felt it
hypocritical of the Department to curtail his socializing, when the bake sale amounted to the
same.
Shortly before 9:00 a.m., just as Clancey was arriving in her office, she picked up
Menaster's call. The caller was so agitated ("ranting and raving)" that Clancey
was unable to ascertain who it was and almost hung up. She finally recognized the caller.
Menaster was complaining ("I can't stand this"; "I've got this going on and that going on";
"I've got to quit"; "[I'm] being micromanaged"). Menaster mentioned a "god damn" "noisy"
bake sale was going on. He also complained about a computer technician. At some point,
Menaster let out a "primal scream" (a "wild animal-type scream"). Clancey attempted to use
crisis-hotline skills she had learned to calm Menaster down. She began asking him a series of
22

questions. 	Clancey suspected Menaster was outside somewhere; she asked him where
he was
calling from. 	After she heard a passerby say something like "Hey, buddy," she heard
Menaster
respond with "Shut up and mind your own fucking business."
Menaster admitted screaming and swearing about the bake sale to Clancey, but
claimed
only then a passer-by overheard him, prompting the person to tell him "fuck you" and
"shut
up." He responded back in kind, "fuck you."
Clancey testified she asked Menaster what UAPD could do for him, to which he
answered "not a god damn thing; UAPD has never done anything," at which point he hung up
on her. Menaster described the call ending differently. He asked for UAPD to file a grievance
for him, which she dismissed because the Department would fire him. He thought about
her
response, decided he would make the best
of
the situation, told Clancey he would be fine and
could "deal with it," thanked her for listening, and then hung up. I find the latter description
implausible, for reasons explained below.
Clancey had concerns for Menaster's personal well-being and safety (more so for
him
than for others whom he might harm). She attempted unsuccessfully to contact Moore.
Clancey then looked for one
of
the bureau chiefs, again to no avail. She testified she was in a
panicked state. Some time passed before Clancey located Schoenfelder and related the
situation to him. She described Menaster as having troubles and being fearful for him.
Schoenfelder, who had talked to Menaster around 7:45 a.m. that morning, agreed to call
Menaster. Clancey stayed in the room. 	Schoenfelder held the receiver away from his ear so
she could listen. Schoenfelder resumed a discussion about the problem the two had
communicated about earlier in the morning and Menaster appeared to be in control, though he
talked loudly at times. After attempting to get Menaster re-focused on work, Schoenfelder
concluded that the situation had been resolved. In the days that followed, Schoenfelder did not
23
questions. Clancey suspected Menaster was outside somewhere; she asked him where he was
calling from. After she heard a passerby say something like "Hey, buddy," she heard Menaster
respond with "Shut up and mind your own fucking business."
Menaster admitted screaming and swearing about the bake sale to Clancey, but claimed
only then a passer-by overheard him, prompting the person to tell him "fuck you" and "shut
up." He responded back in kind, "fuck you."
Clancey testified she asked Menaster what UAPD could do for him, to which he
answered "not a god damn thing; UAPD has never done anything," at which point he hung up
on her. Menaster described the call ending differently. He asked for UAPD to file a grievance
for him, which she dismissed because the Department would fire him. He thought about her
response, decided he would make the best of the situation, told Clancey he would be fine and
could "deal with it," thanked her for listening, and then hung up. I find the latter description
implausible, for reasons explained below.
Clancey had concerns for Menaster's personal well-being and safety (more so for him
than for others whom he might harm). She attempted unsuccessfully to contact Moore.
Clancey then looked for one of the bureau chiefs, again to no avail. She testified she was in a
panicked state. Some time passed before Clancey located Schoenfelder and related the
situation to him. She described Menaster as having troubles and being fearful for him.
Schoenfelder, who had talked to Menaster around 7:45 a.m. that morning, agreed to call
Menaster. Clancey stayed in the room. Schoenfelder held the receiver away from his ear so
she could listen. Schoenfelder resumed a discussion about the problem the two had
communicated about earlier in the morning and Menaster appeared to be in control, though he
talked loudly at times. After attempting to get Menaster re-focused on work, Schoenfelder
concluded that the situation had been resolved. In the days that followed, Schoenfelder did not
23

believe the incident was
of
major concern, but neither was it "insignificant." Schoenfelder
intended to bring the matter to Payton's attention, but due to the press
of
other business
and
Payton's schedule he never reported the matter up the chain.
At Clancey's suggestion, Meenakshi also called Menaster, spoke to him, and concluded
he was okay. Meenakshi had received a call from Menaster earlier in the morning
as
well,
involving a complaint about an analyst asking him to change his opinion. Meenakshi believed
that to be the real cause
of
his upset that morning. When Meenakshi spoke to Clancey, she was
"worried about [Menaster] as well as to what [he was] going to do." She told Meenakshi
that
Menaster was "screaming so much" and "didn't sound like [he was] listening to her."
Meenakshi believed Clancey was "worried about her interaction" with Menaster and "wanted
something to be done." Meenakshi corroborated Menaster's recollection to a degree,
explaining that Clancey told her Menaster ended the call by saying he would "take care
of
[himself]." But Menaster did not specifically deny criticizing UAPD with profanity for
not
doing anything to help him. On the basis
of
this corroboration
of
Clancey's account, I reject
Menaster's account
of
how he ended the call.
Schoenfelder's February 9 Call
The February 1 incident might have passed without further incident but for a meeting
Clancey had with Schlegel, her supervisor. On February 6, Schlegel went to Clancey's office
to inquire about the status
of
her backlogged cases. Clancey offered some reasons for her lack
of progress, touching on some personal matters. She also cited her UAPD work. 	Schlegel
advised Clancey some
of
her cases would be transferred to other staff. Schlegel saw Clancey's
in-box screen full of messages from Menaster and suggested how a separate folder could be
created for them. In that context, Clancey noted the February 1 incident. Clancey described
Menaster as "going postal." Schlegel instructed Clancey to repeat the account to Harbridge,
24
believe the incident was of major concern, but neither was it "insignificant." Schoenfelder
intended to bring the matter to Payton's attention, but due to the press of other business and
Payton's schedule he never reported the matter up the chain.
At Clancey's suggestion, Meenakshi also called Menaster, spoke to him, and concluded
he was okay. Meenakshi had received a call from Menaster earlier in the morning as well,
involving a complaint about an analyst asking him to change his opinion. Meenakshi believed
that to be the real cause of his upset that morning. When Meenakshi spoke to Clancey, she was
"worried about [Menaster] as well as to what [he was] going to do." She told Meenakshi that
Menaster was "screaming so much" and "didn't sound like [he was] listening to her."
Meenakshi believed Clancey was "worried about her interaction" with Menaster and "wanted
something to be done." Meenakshi corroborated Menaster's recollection to a degree,
explaining that Clancey told her Menaster ended the call by saying he would "take care of
[himself]." But Menaster did not specifically deny criticizing UAPD with profanity for not
doing anything to help him. On the basis of this corroboration of Clancey's account, I reject
Menaster's account of how he ended the call.
Schoenfelder's February 9 Call
The February 1 incident might have passed without further incident but for a meeting
Clancey had with Schlegel, her supervisor. On February 6, Schlegel went to Clancey's office
to inquire about the status of her backlogged cases. Clancey offered some reasons for her lack
of progress, touching on some personal matters. She also cited her UAPD work. Schlegel
advised Clancey some of her cases would be transferred to other staff. Schlegel saw Clancey's
in-box screen full of messages from Menaster and suggested how a separate folder could be
created for them. In that context, Clancey noted the February 1 incident. Clancey described
Menaster as "going postal." Schlegel instructed Clancey to repeat the account to Harbridge,
24

and she reported the same to Harbridge. Harbridge inquired with Schoenfelder about
the
incident. 	Schoenfelder wrote a document memorializing the February 1 incident which
was
incorporated in the expectations memo. At some
point
after it was written, Schoenfelder
was
instructed to remove the February 1 references to Menaster contacting his union representative
in order to reflect that the interference transcended union/non-union lines within the staff.
By the end
of
the first week in February, Harbridge believed that the events were
"definitely" leading to a decision to reject Menaster during probation. She informed Stavis
of
that. 	Stavis suggested immediately placing Menaster on administrative time off. 	He
also
asked Harbridge to get statements from those involved in the February 1 incident. In the
meantime, both Schlegel and Payton expressed to upper management that "it was not
working
out." Stavis testified that the main purpose
of
placing Menaster on leave was to allow
the
Department to complete the paperwork for rejection on probation. His intention was to obtain
sufficient documentation for that purpose, and only to go beyond that
if
the personnel
department deemed it necessary. He had concerns about the safety
of
his staff in light
of
the
reports suggesting that Menaster had an explosive temper.
Payton testified he became very concerned about Menaster's repetitive behavior
problems. In his mind, the purpose
of
placing Menaster on administrative leave was to
"do
our
investigation and see where we are." But he also made clear that he did not orchestrate
the
investigation and that theoretically an investigation might involve Menaster or it might not.
In the meantime, Harbridge directed Schoenfelder to call Menaster to obtain his side of
the February 1 incident.
14
Schoenfelder called Menaster on February 9, the same day he
received Harbridge's instruction, and announced his purpose. He described the incident as it
Payton discussed the proposed call with Schoenfelder. Payton appears to have
viewed the call as having an investigative purpose, testifying of his concern he might later be
questioned and needing "back-up." Stavis was more secure with the decision and only would
have done further investigation if the personnel or legal section requested it.
25
and she reported the same to Harbridge. Harbridge inquired with Schoenfelder about the
incident. Schoenfelder wrote a document memorializing the February 1 incident which was
incorporated in the expectations memo. At some point after it was written, Schoenfelder was
instructed to remove the February 1 references to Menaster contacting his union representative
in order to reflect that the interference transcended union/non-union lines within the staff.
By the end of the first week in February, Harbridge believed that the events were
"definitely" leading to a decision to reject Menaster during probation. She informed Stavis of
that. Stavis suggested immediately placing Menaster on administrative time off. He also
asked Harbridge to get statements from those involved in the February 1 incident. In the
meantime, both Schlegel and Payton expressed to upper management that "it was not working
out." Stavis testified that the main purpose of placing Menaster on leave was to allow the
Department to complete the paperwork for rejection on probation. His intention was to obtain
sufficient documentation for that purpose, and only to go beyond that if the personnel
department deemed it necessary. He had concerns about the safety of his staff in light of the
reports suggesting that Menaster had an explosive temper.
Payton testified he became very concerned about Menaster's repetitive behavior
problems. In his mind, the purpose of placing Menaster on administrative leave was to "do our
investigation and see where we are." But he also made clear that he did not orchestrate the
investigation and that theoretically an investigation might involve Menaster or it might not.
In the meantime, Harbridge directed Schoenfelder to call Menaster to obtain his side of
the February 1 incident." Schoenfelder called Menaster on February 9, the same day he
received Harbridge's instruction, and announced his purpose. He described the incident as it
" Payton discussed the proposed call with Schoenfelder. Payton appears to have
viewed the call as having an investigative purpose, testifying of his concern he might later be
questioned and needing "back-up." Stavis was more secure with the decision and only would
have done further investigation if the personnel or legal section requested it.
25

had been described to him by Clancey. He asked Menaster if the account was accurate and
whether he "had anything to add." Schoenfelder denied asking Menaster to "admit" anything.
Menaster declined to provide any information without his union representative. 	Schoenfelder
did not offer Menaster union representation, nor did he expressly deny him that right.
Schoenfelder testified that he asked Menaster three times whether he wanted to provide any
information, but each time Menaster refused to "confirm or deny" without his representative.
Schoenfelder testified he repeated the question not for the purpose of eliciting any admissions,
but to make sure Menaster understood he was being provided an opportunity to provide his
side. Menaster asked if the incident was a "problem." Schoenfelder admitted that, "clearly,
this is an issue of some sort." Menaster did not seek to terminate the call however. Rather he
attempted to elicit more information from Schoenfelder as to his status.
Menaster's recollection of the call differed to some degree. He testified that
Schoenfelder began with an "irritated" tone of voice and that he wanted "either an admission
or a statement" about the call. Schoenfelder persisted in asking him to admit the "primal
scream," the yelling, and the swearing. Schoenfelder reminded him he was to bring issues up
with him first, and then added that he wanted to know "what issues he was bringing to the
union representative," with his tone getting angrier. Before ending the call, Schoenfelder did
say that it was okay for Menaster not to provide any response. Menaster was suspicious about
Schoenfelder knowing what transpired during the call with Clancey. Menaster acknowledged
that he understood he had a right to remain silent in investigatory meetings while requesting
representation based on previous advice. His belief as well that he could not terminate the
call-because it might be construed as insubordination-explains why he remained on the call.
Later that day, Menaster called and asked Clancey if she had been the source of the
disclosure. Clancey admitted she was, explaining that she thought. he might "hurt himself or
26
had been described to him by Clancey. He asked Menaster if the account was accurate and
whether he "had anything to add." Schoenfelder denied asking Menaster to "admit" anything.
Menaster declined to provide any information without his union representative. Schoenfelder
did not offer Menaster union representation, nor did he expressly deny him that right.
Schoenfelder testified that he asked Menaster three times whether he wanted to provide any
information, but each time Menaster refused to "confirm or deny" without his representative.
Schoenfelder testified he repeated the question not for the purpose of eliciting any admissions,
but to make sure Menaster understood he was being provided an opportunity to provide his
side. Menaster asked if the incident was a "problem." Schoenfelder admitted that, "clearly,
this is an issue of some sort." Menaster did not seek to terminate the call however. Rather he
attempted to elicit more information from Schoenfelder as to his status.
Menaster's recollection of the call differed to some degree. He testified that
Schoenfelder began with an "irritated" tone of voice and that he wanted "either an admission
or a statement" about the call. Schoenfelder persisted in asking him to admit the "primal
scream," the yelling, and the swearing. Schoenfelder reminded him he was to bring issues up
with him first, and then added that he wanted to know "what issues he was bringing to the
union representative," with his tone getting angrier. Before ending the call, Schoenfelder did
say that it was okay for Menaster not to provide any response. Menaster was suspicious about
Schoenfelder knowing what transpired during the call with Clancey. Menaster acknowledged
that he understood he had a right to remain silent in investigatory meetings while requesting
representation based on previous advice. His belief as well that he could not terminate the
call-because it might be construed as insubordination-explains why he remained on the call.
Later that day, Menaster called and asked Clancey if she had been the source of the
disclosure. Clancey admitted she was, explaining that she thought he might "hurt himself or
26

others." Menaster "thanked" Clancey for "turning on him," which Clancey found offensive.
Clancey then went to Schoenfelder and angrily blamed him for the disclosure
of
her as
the
source
of
the report on the February 1 call. Clancey feared she was going to get into
trouble
for it.
Also on February 9, Harbridge informed Schoenfelder that management had
made the
decision to reject Menaster on probation.
15
Schoenfelder was instructed to commence
documentation for that purpose. He was also instructed not to share the Department's
plan
with Menaster.
Schoenfelder continued working on the expectations memo he had started. The
memorandum began by recounting the February 1 events and then tied into the counseling
during the January 26 meeting. Schoenfelder objected to the offensive language Menaster used
with an unidentified coworker (Clancey) and his failure to channel work complaints to
him
as
the supervisor. He also began preparation
of
Menaster' s second probationary report.
On February 10, Menaster called Schoenfelder to complain that he had been denied his
right to a representative during their call. Menaster again asked about his status, to which
Schoenfelder responded he did not know what the Department was planning.
Schoenfelder recalled Menaster asserting that Clancey's disclosure was a breach
of
her
duty
of
confidentiality (as a union representative). At the hearing, Schoenfelder admitted he
was untruthful in not telling Menaster that the Department intended to reject him on probation,
but claimed he failed to do so because he was under orders not to.
Schoenfelder testified that the expectations memo he was writing went through a
number
of
iterations. The one produced for the hearing from the drop file is dated February
10. In it, Schoenfelder includes the statement: "Due to these continued acts of behavior, I will
Stavis confirmed he made that decision, though for it to have been formally adopted
he needed his superior's approval.
27
others." Menaster "thanked" Clancey for "turning on him," which Clancey found offensive.
Clancey then went to Schoenfelder and angrily blamed him for the disclosure of her as the
source of the report on the February 1 call. Clancey feared she was going to get into trouble
for it.
Also on February 9, Harbridge informed Schoenfelder that management had made the
decision to reject Menaster on probation." Schoenfelder was instructed to commence
documentation for that purpose. He was also instructed not to share the Department's plan
with Menaster.
Schoenfelder continued working on the expectations memo he had started. The
memorandum began by recounting the February 1 events and then tied into the counseling
during the January 26 meeting. Schoenfelder objected to the offensive language Menaster used
with an unidentified coworker (Clancey) and his failure to channel work complaints to him as
the supervisor. He also began preparation of Menaster's second probationary report.
On February 10, Menaster called Schoenfelder to complain that he had been denied his
right to a representative during their call. Menaster again asked about his status, to which
Schoenfelder responded he did not know what the Department was planning.
Schoenfelder recalled Menaster asserting that Clancey's disclosure was a breach of her
duty of confidentiality (as a union representative). At the hearing, Schoenfelder admitted he
was untruthful in not telling Menaster that the Department intended to reject him on probation,
but claimed he failed to do so because he was under orders not to.
Schoenfelder testified that the expectations memo he was writing went through a
number of iterations. The one produced for the hearing from the drop file is dated February
10. In it, Schoenfelder includes the statement: "Due to these continued acts of behavior, I will
15 Stavis confirmed he made that decision, though for it to have been formally adopted
he needed his superior's approval.
27

be recommending a Rejection on Probation." He later circled the sentence by hand, added
three question marks and the question to himself: "Keep?" Another version
of
the same
document, also dated February 10, he titled "memo for record." These drafts had input from
Payton and Harbridge.
On February 14, Schoenfelder went to Oakland with the administrative-time-off (ATO)
letter that had been prepared and personally delivered it to Menaster. Shortly after, Menaster
called Moore. Moore relayed information the union had received that the Department planned
to terminate him and that the paperwork was pending. Moore advised Menaster that his
options were to "resign or be fired." Meenakshi discussed the matter with Moore and
concurred with his advice.
Menaster had his psychiatrist contact Schoenfelder to request an explanation
of
the
reasons for the A TO letter. After checking with Harbridge, Schoenfelder declined to offer one.
On February 17, Menaster tendered his resignation in writing. The paperwork for
rejection on probation was never completed. The expectations memo and memo for record
were retained in their last version for the drop file. Neither was ever given to Menaster nor
was either placed in his personnel file.
Following Menaster's resignation, the Department advertised for a psychiatric medical
consultant in the Sacramento branch. Menaster submitted a letter to Schlegel dated September
11, requesting reinstatement to his former position in the Sacramento branch. 	Stavis forwarded
it to the personnel section in Sacramento. Menaster received no response from Sacramento.
Menaster sent a similar request to Washington and received a response from her dated
September 12, 2006, stating the office had no vacancies. In January 2007, the Department
again advertised for psychiatric consultants for positions in a number of its branches, including
Sacramento.
28
be recommending a Rejection on Probation." He later circled the sentence by hand, added
three question marks and the question to himself: "Keep?" Another version of the same
document, also dated February 10, he titled "memo for record." These drafts had input from
Payton and Harbridge.
On February 14, Schoenfelder went to Oakland with the administrative-time-off (ATO)
letter that had been prepared and personally delivered it to Menaster. Shortly after, Menaster
called Moore. Moore relayed information the union had received that the Department planned
to terminate him and that the paperwork was pending. Moore advised Menaster that his
options were to "resign or be fired." Meenakshi discussed the matter with Moore and
concurred with his advice.
Menaster had his psychiatrist contact Schoenfelder to request an explanation of the
reasons for the ATO letter. After checking with Harbridge, Schoenfelder declined to offer one.
On February 17, Menaster tendered his resignation in writing. The paperwork for
rejection on probation was never completed. The expectations memo and memo for record
were retained in their last version for the drop file. Neither was ever given to Menaster nor
was either placed in his personnel file.
Following Menaster's resignation, the Department advertised for a psychiatric medical
consultant in the Sacramento branch. Menaster submitted a letter to Schlegel dated September
1 1, requesting reinstatement to his former position in the Sacramento branch. Stavis forwarded
it to the personnel section in Sacramento. Menaster received no response from Sacramento.
Menaster sent a similar request to Washington and received a response from her dated
September 12, 2006, stating the office had no vacancies. In January 2007, the Department
again advertised for psychiatric consultants for positions in a number of its branches, including
Sacramento.
28

ISSUES
1.	
Did the Department deny Menaster his right to a representative in the telephone
call on February
9,
2006?
2. 	Did the Department discriminate against Menaster because
of
his exercise
of
Dills Act rights by issuing him the expectations memo or the memo for record?
3.
	Did the Department discriminate against Menaster because
of
his exercise
of
Dills Act rights by placing him on administrative time off?
4. 	Did the Department discriminate against Menaster because
of
his exercise
of
Dills Act rights by failing to reinstate him to his position as a psychiatric medical consultant?
Did the Department deny Menaster his right to a representative in the telephone
call on February 9, 2006?
2. 	Did the Department discriminate against Menaster because of his exercise of
Dills Act rights by issuing him the expectations memo or the memo for record?
3 . 	Did the Department discriminate against Menaster because of his exercise of
Dills Act rights by placing him on administrative time off?
4. 	Did the Department discriminate against Menaster because of his exercise of
Dills Act rights by failing to reinstate him to his position as a psychiatric medical consultant?
CONCLUSIONS OF LAW
Lack
of
Representation During the February 9 Call
Under the statutes administered by PERB, including the Dills Act, employees have a
right
of
participation by their employee organization representative in meetings conducted by
the employer and its agents, which are investigatory in nature or which otherwise present
circumstances that can be described as "highly unusual." (State
of
California (Department
of
Forestry) (1988) PERB Decision No. 690-S; Rio Hondo Community College District (1982)
PERB Decision No. 260; Redwoods Community College Dist.
v.
Public Employment Relations
Bd. (1984) 159 Cal.App.3d 617, 626.) 	This right parallels the longstanding rule
of
the
National Labor Relations Board (NLRB), as described in NLRB
v.
J 	Weingarten (1975) 420
U.S. 251. The Weingarten right attaches to the meeting whether or not the employer chooses	U.S.
to label it "investigatory" in nature. (Rio Hondo Community College District, supra, PERB
Decision No. 260, p. 17.) However, it does not attach to "run-of-the-mill," "shop-floor
conversations." (Regents
of
the University
of
California (1983) PERB Decision No. 310-H, p.
28.)
29
ISSUES
1 .
CONCLUSIONS OF LAW
Lack of Representation During the February 9 Call
Under the statutes administered by PERB, including the Dills Act, employees have a
right of participation by their employee organization representative in meetings conducted by
the employer and its agents, which are investigatory in nature or which otherwise present
circumstances that can be described as "highly unusual." (State of California (Department of
Forestry) (1988) PERB Decision No. 690-S; Rio Hondo Community College District (1982)
PERB Decision No. 260; Redwoods Community College Dist. v. Public Employment Relations
Bd. (1984) 159 Cal.App.3d 617, 626.) This right parallels the longstanding rule of the
National Labor Relations Board (NLRB), as described in NLRB v. J. Weingarten (1975) 420
251. The Weingarten right attaches to the meeting whether or not the employer chooses
to label it "investigatory" in nature. (Rio Hondo Community College District, supra, PERB
Decision No. 260, p. 17.) However, it does not attach to "run-of-the-mill," "shop-floor
conversations." (Regents of the University of California (1983) PERB Decision No. 310-H, p.
28.)
29

Because a meeting with management whose essential purpose
is
to elicit inculpatory
evidence has potential to impact the employment relationship, denial
of
the assistance
of
the
employee organization frustrates the statutory purposes ofrepresentation. (Placer Hills Union
School District (1984) PERB Decision No. 377, pp. 38-40.) But
if
the meeting's purpose is
otherwise, such
as
when the employer simply intends to deliver notice
of
a disciplinary
decision already made, the right does not attach.	
(Id.
at
p.
38; Trustees
of
the California State
University (2006) PERB Decision No. 1853-H.)
For a violation to be found, the employee must have (a) requested representation, (b) for
an investigatory meeting, (
c) which the employee reasonably believed might result in
disciplinary action, and ( d) the employer denied the request. 	The employer is under no
obligation to inform the employee
of
the right to representation.
If
the employer insists that no
discipline will result, a violation may nonetheless be found
if
the employer persists in conducting
the interview; the employee need not repeatedly invoke the right. (Lake Elsinore Unified School
District (2004) PERB Decision No. 1648.)
If
upon assertion
of
the right, the employer
dispenses with the interview, no violation occurs. (San Bernardino City Unified School
District (1998) PERB Decision No. 1270, adopting the administrative law judge's proposed
decision, at pp. 62-63.) But
if
the employer persists in seeking information to support its
potential case for discipline, a violation occurs. (California State University, Long Beach
(1991) PERB Decision No. 893-H.)
I find that Menaster would reasonably have believed his answers could be used to
support disciplinary action. His contemporaneous inquiries to Schoenfelder as to his status
reflect his concern for adverse action occurring. And his record of counseling and the number
of complaints lodged by coworkers had certainly set the stage for formal discipline. Although
the call came from Schoenfelder unannounced and did not take place in person, I find that it
30
Because a meeting with management whose essential purpose is to elicit inculpatory
evidence has potential to impact the employment relationship, denial of the assistance of the
employee organization frustrates the statutory purposes of representation. (Placer Hills Union
School District (1984) PERB Decision No. 377, pp. 38-40.) But if the meeting's purpose is
otherwise, such as when the employer simply intends to deliver notice of a disciplinary
decision already made, the right does not attach. (Id. at p. 38; Trustees of the California State
University (2006) PERB Decision No. 1853-H.)
For a violation to be found, the employee must have (a) requested representation, (b) for
an investigatory meeting, (c) which the employee reasonably believed might result in
disciplinary action, and (d) the employer denied the request. The employer is under no
obligation to inform the employee of the right to representation. If the employer insists that no
discipline will result, a violation may nonetheless be found if the employer persists in conducting
the interview; the employee need not repeatedly invoke the right. (Lake Elsinore Unified School
District (2004) PERB Decision No. 1648.) If upon assertion of the right, the employer
dispenses with the interview, no violation occurs. (San Bernardino City Unified School
District (1998) PERB Decision No. 1270, adopting the administrative law judge's proposed
decision, at pp. 62-63.) But if the employer persists in seeking information to support its
potential case for discipline, a violation occurs. (California State University, Long Beach
(1991) PERB Decision No. 893-H.)
I find that Menaster would reasonably have believed his answers could be used to
support disciplinary action. His contemporaneous inquiries to Schoenfelder as to his status
reflect his concern for adverse action occurring. And his record of counseling and the number
of complaints lodged by coworkers had certainly set the stage for formal discipline. Although
the call came from Schoenfelder unannounced and did not take place in person, I find that it
30

constituted more than a run-of-the-mill, shop-floor conversation. The question whether
Menaster requested representation is perhaps questionable based on the evidence. He
knew
based
on
his prior experience with Payton and Harbridge that he had a right to request a
representative. 	So his assertion that he would not answer any questions without a
representative, coupled with his attempt to obtain additional information from Schoenfelder,
demonstrates something less than an unequivocal request. However, the import
of
his
statement was sufficiently clear to satisfy the requirement. I find that an investigatory
meeting
occurred, which Menaster reasonably believed might result in disciplinary action, and
Menaster
communicated a request for representation.
The pivotal issue revolves around the fact that despite Menaster's refusal to provide any
answers without a representative, Schoenfelder persisted in questioning him. Schoenfelder
asked three times whether Menaster had any information to provide. Menaster responded that
he would neither confirm nor deny matters concerning the February incident without the
presence
of
a representative. But Schoenfelder did not seek to obtain any admissions
of
wrongdoing by Menaster by repeating his question, so much as to make sure that Menaster
understood the opportunity he was being offered. (Cf. Placer Hills Union School District,
supra, PERB Decision No. 377.) Further, Menaster successfully invoked his right to silence,
without providing any damaging information or admissions. (California State University,
Long Beach, supra, PERB Decision No. 893-H.) Nor did Schoenfelder explicitly deny the
request. Ultimately, he honored the request by ceasing questioning, after he was clear
in
his
mind that Menaster had no interest in providing information to help his cause. To the extent
the meeting was investigatory, the Department dispensed with the interview. (San Bernardino
City Unified School District, supra, PERB Decision No. 1270; NLRB
v. J.
Weingarten, supra,
420 U.S. at pp. 258-259 [employer may carry on an investigation without interviewing the
31
constituted more than a run-of-the-mill, shop-floor conversation. The question whether
Menaster requested representation is perhaps questionable based on the evidence. He knew
based on his prior experience with Payton and Harbridge that he had a right to request a
representative. So his assertion that he would not answer any questions without a
representative, coupled with his attempt to obtain additional information from Schoenfelder,
demonstrates something less than an unequivocal request. However, the import of his
statement was sufficiently clear to satisfy the requirement. I find that an investigatory meeting
occurred, which Menaster reasonably believed might result in disciplinary action, and Menaster
communicated a request for representation.
The pivotal issue revolves around the fact that despite Menaster's refusal to provide any
answers without a representative, Schoenfelder persisted in questioning him. Schoenfelder
asked three times whether Menaster had any information to provide. Menaster responded that
he would neither confirm nor deny matters concerning the February incident without the
presence of a representative. But Schoenfelder did not seek to obtain any admissions of
wrongdoing by Menaster by repeating his question, so much as to make sure that Menaster
understood the opportunity he was being offered. (Cf. Placer Hills Union School District,
supra, PERB Decision No. 377.) Further, Menaster successfully invoked his right to silence,
without providing any damaging information or admissions. (California State University,
Long Beach, supra, PERB Decision No. 893-H.) Nor did Schoenfelder explicitly deny the
request. Ultimately, he honored the request by ceasing questioning, after he was clear in his
mind that Menaster had no interest in providing information to help his cause. To the extent
the meeting was investigatory, the Department dispensed with the interview. (San Bernardino
City Unified School District, supra, PERB Decision No. 1270; NLRB v. J. Weingarten, supra,
420 U.S. at pp. 258-259 [employer may carry on an investigation without interviewing the
31

employee, leaving the employee with the choice of interview unaccompanied by representative
or having no interview and foregoing any benefits that might be derived from one].)
Expectations Memo and Memo for Record
To prove a violation involving discrimination, Menaster bears the initial burden of
showing evidence that he engaged in protected activity, that the State knew of the activity, that
the State imposed adverse action, and that the protected activity was a "motivating factor" in
its decision to impose the adverse action alleged to have occurred. (Novato Unified School
District (1982) PERB Decision No. 210.) Motivation may be proven by either direct or
circumstantial evidence, or a combination of both. (Carlsbad Unified School District (1979)
PERB Decision No. 89.) Types of circumstantial evidence probative of unlawful intent
include: (1) timing of the adverse action (North Sacramento School District (1982) PERB
Decision No. 264); (2) inadequate, inconsistent, or shifting justification for the adverse action
(Novato Unified School District, supra); (3) disparate treatment of the employee (Regents of
the University of California (1984) PERB Decision No. 403-H); (4) departure from standard
procedures (Santa Clara Unified School District (1979) PERB Decision No. 104); (5) cursory
investigation (State of California (Department of Parks and Recreation) (1983) PERB
Decision No. 328-S); and (6) pattern of antagonism toward the union or individuals engaging
in protected activity ( Cupertino Union Elementary School District (1986) PERB Decision
No. 572).
Once protected activity is established to be a motivating factor, the burden of
persuasion shifts to the employer to demonstrate that it would have taken the same action even
in the absence of the protected conduct. (Novato Unified School District, supra, PERB
Decision No. 21 O; Martori Brothers Distributors v. Agricultural Labor Relations Bd. ( 1981)
29 Cal.3d 721, 730.)
32
employee, leaving the employee with the choice of interview unaccompanied by representative
or having no interview and foregoing any benefits that might be derived from one].)
Expectations Memo and Memo for Record
To prove a violation involving discrimination, Menaster bears the initial burden of
showing evidence that he engaged in protected activity, that the State knew of the activity, that
the State imposed adverse action, and that the protected activity was a "motivating factor" in
its decision to impose the adverse action alleged to have occurred. (Novato Unified School
District (1982) PERB Decision No. 210.) Motivation may be proven by either direct or
circumstantial evidence, or a combination of both. (Carlsbad Unified School District (1979)
PERB Decision No. 89.) Types of circumstantial evidence probative of unlawful intent
include: (1) timing of the adverse action (North Sacramento School District (1982) PERB
Decision No. 264); (2) inadequate, inconsistent, or shifting justification for the adverse action
(Novato Unified School District, supra); (3) disparate treatment of the employee (Regents of
the University of California (1984) PERB Decision No. 403-H); (4) departure from standard
procedures (Santa Clara Unified School District (1979) PERB Decision No. 104); (5) cursory
investigation (State of California (Department of Parks and Recreation) (1983) PERB
Decision No. 328-S); and (6) pattern of antagonism toward the union or individuals engaging
in protected activity (Cupertino Union Elementary School District (1986) PERB Decision
No. 572).
Once protected activity is established to be a motivating factor, the burden of
persuasion shifts to the employer to demonstrate that it would have taken the same action even
in the absence of the protected conduct. (Novato Unified School District, supra, PERB
Decision No. 210; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981)
29 Cal.3d 721, 730.)
32

The expectations memo and memo for record are drafts
of
the same document. 	The
memorandum was originally intended as a counseling instrument, which became supplemented
with the concerns the February 1 call to Clancey. 	Schoenfelder reiterated the substance
of
the
verbal counseling he gave Menaster following the January 26 meeting as it related to the
Department's expectations
of
his conduct in the Oakland office. This was consistent with
Schoenfelder's approach throughout Menaster's tenure. He had consistently been willing to
overlook past transgressions in return for a steady focus on work from Menaster. At no time
did Schoenfelder ever recommend formal discipline be imposed against Menaster.
There is no violation on the basis
of
the preparation
of
the two memoranda because
they were never issued to Menaster and never placed in his personnel file. 	They remained
documents in the drop file. 16
Therefore they do not constitute adverse action, which
is
a prima
facie requirement for establishing a discrimination violation. (Palo Verde Unified School
District (1988) PERB Decision No. 689.) A document which is unknown to the employee
during his employment cannot have a chilling effect on the exercise
of
guaranteed rights,
which is the basic purpose
of
the proscription against discrimination. (See Visalia Unified
School District (2004) PERB Decision No. 1687 [fear
of
negative evaluation insufficient to
demonstrate constructive discharge].) A document which is placed in an employee's personnel
file after he leaves employment may interfere with the free exercise of such rights, if not with
the past covered employer, but a future covered employer, or may have other negative
consequences, for example, in the search for new employment. However, that did not occur
here either.
Menaster discovered the documents as a result of other litigation in which he
compelled production of the drop file.
33
The expectations memo and memo for record are drafts of the same document. The
memorandum was originally intended as a counseling instrument, which became supplemented
with the concerns the February 1 call to Clancey. Schoenfelder reiterated the substance of the
verbal counseling he gave Menaster following the January 26 meeting as it related to the
Department's expectations of his conduct in the Oakland office. This was consistent with
Schoenfelder's approach throughout Menaster's tenure. He had consistently been willing to
overlook past transgressions in return for a steady focus on work from Menaster. At no time
did Schoenfelder ever recommend formal discipline be imposed against Menaster.
There is no violation on the basis of the preparation of the two memoranda because
they were never issued to Menaster and never placed in his personnel file. They remained
documents in the drop file." Therefore they do not constitute adverse action, which is a prima
facie requirement for establishing a discrimination violation. (Palo Verde Unified School
District (1988) PERB Decision No. 689.) A document which is unknown to the employee
during his employment cannot have a chilling effect on the exercise of guaranteed rights,
which is the basic purpose of the proscription against discrimination. (See Visalia Unified
School District (2004) PERB Decision No. 1687 [fear of negative evaluation insufficient to
demonstrate constructive discharge].) A document which is placed in an employee's personnel
file after he leaves employment may interfere with the free exercise of such rights, if not with
the past covered employer, but a future covered employer, or may have other negative
consequences, for example, in the search for new employment. However, that did not occur
here either.
16 Menaster discovered the documents as a result of other litigation in which he
compelled production of the drop file.
33

ATO Letter
Menaster contends that he repeatedly brought complaints concerning his working
conditions to the attention
of
management and that his requests were consistently ignored. 	The
February 1 call to Clancey, itself a request for UAPD assistance, was also the triggering
event
for the alleged adverse actions. He argues that the alleged adverse actions all took place
in an
attempt by the Department to suppress that protected activity. 	Specifically with regard to the
ATO decision, he argues that evidence
of
discriminatory animus is demonstrated by the
Department's failure to conduct any investigation
of
his side
of
the story. He contends
that
the
Department departed from standard procedures by doing so. The element oftiming
is
present
because Menaster engaged in protected activity beginning from his first day
of
work (meeting
with Clancey), invoking representation from UAPD, through Clancey, Meenakshi and Moore,
in December 2005 and January 2006, and communicating with Clancey on February 1 for the
purpose
of
seeking representation. The Department was aware
of
Menaster' s protected
activity. The ATO letter was delivered two weeks later, and it constituted an adverse action. I
find that Menaster has stated a prima facie case in terms
of
discriminatory intent, based
on
timing, lack
of
investigation (the decision to place on Menaster on administrative leave was
made before the Department's investigation commenced and before Menaster was offered an
opportunity to provide input), and failure to provide an explanation for the adverse action
(Schoenfelder declined to provide one to Menaster's request through an intermediary).
The Department's decision resulted from a discussion between Stavis and Harbridge.
The triggering event was Schlegel's discovery of the February l incident described to her as
Menaster "going postal" on Clancey. Schlegel reported the incident to Harbridge because
of
her concern with not only the call itself, but Clancey's complaint about how much of her time
was occupied with Menaster' s issues.
34
ATO Letter
Menaster contends that he repeatedly brought complaints concerning his working
conditions to the attention of management and that his requests were consistently ignored. The
February 1 call to Clancey, itself a request for UAPD assistance, was also the triggering event
for the alleged adverse actions. He argues that the alleged adverse actions all took place in an
attempt by the Department to suppress that protected activity. Specifically with regard to the
ATO decision, he argues that evidence of discriminatory animus is demonstrated by the
Department's failure to conduct any investigation of his side of the story. He contends that the
Department departed from standard procedures by doing so. The element of timing is present
because Menaster engaged in protected activity beginning from his first day of work (meeting
with Clancey), invoking representation from UAPD, through Clancey, Meenakshi and Moore,
in December 2005 and January 2006, and communicating with Clancey on February 1 for the
purpose of seeking representation. The Department was aware of Menaster's protected
activity. The ATO letter was delivered two weeks later, and it constituted an adverse action. I
find that Menaster has stated a prima facie case in terms of discriminatory intent, based on
timing, lack of investigation (the decision to place on Menaster on administrative leave was
made before the Department's investigation commenced and before Menaster was offered an
opportunity to provide input), and failure to provide an explanation for the adverse action
(Schoenfelder declined to provide one to Menaster's request through an intermediary).
The Department's decision resulted from a discussion between Stavis and Harbridge.
The triggering event was Schlegel's discovery of the February 1 incident described to her as
Menaster "going postal" on Clancey. Schlegel reported the incident to Harbridge because of
her concern with not only the call itself, but Clancey's complaint about how much of her time
was occupied with Menaster's issues.
34

The record establishes that Schoenfelder was not involved in the decision to place
Menaster on administrative leave. In that light, the record suffers somewhat from the absence
of
Harbridge as a witness for the State. The appropriate inquiry concerns the motives
of
the
employer in taking the adverse action, and Harbridge was the one who appears to have
been
the primary decision maker with regard to Menaster's employment status, though she
obviously had input from both Payton and Schlegel.
Notwithstanding Harbridge's failure to testify,
17
the decision to place Menaster on
involuntary leave was adequately explained by Stavis. His explanation was presented directly
and convincingly, and corroborated by the events leading up to it. The purpose
of
placing
Menaster on leave was to allow the Department to develop the necessary documentation to
reject Menaster
of
probation. Thus, the decision to reject on probation, which had already
been made, was the real impetus for placing Menaster on leave.
Still, the two decisions are intertwined, and so the inquiry necessarily turns to whether
the decision to reject on probation was taken because
of
discriminatory intent, notwithstanding
the absence
of
this allegation in the complaint.
18
On this score, the State presented affirmative
evidence that a decision to reject on probation was justified by the history
of
counseling
of
Menaster regarding his problem relating to coworkers, his failure to exercise sound discretion
in interacting with them, the unprofessional nature
of
the content
of
his communications with
them, and the degree to which he caused interference with the work
of
others as well as
himself.
Har bridge had retired from the Department at the time of the hearing.
Menaster's motion to amend the complaint to include a claim that he was
constructively discharged was denied before the hearing.
35
The record establishes that Schoenfelder was not involved in the decision to place
Menaster on administrative leave. In that light, the record suffers somewhat from the absence
of Harbridge as a witness for the State. The appropriate inquiry concerns the motives of the
employer in taking the adverse action, and Harbridge was the one who appears to have been
the primary decision maker with regard to Menaster's employment status, though she
obviously had input from both Payton and Schlegel.
Notwithstanding Harbridge's failure to testify, "the decision to place Menaster on
involuntary leave was adequately explained by Stavis. His explanation was presented directly
and convincingly, and corroborated by the events leading up to it. The purpose of placing
Menaster on leave was to allow the Department to develop the necessary documentation to
reject Menaster of probation. Thus, the decision to reject on probation, which had already
been made, was the real impetus for placing Menaster on leave.
Still, the two decisions are intertwined, and so the inquiry necessarily turns to whether
the decision to reject on probation was taken because of discriminatory intent, notwithstanding
the absence of this allegation in the complaint." On this score, the State presented affirmative
evidence that a decision to reject on probation was justified by the history of counseling of
Menaster regarding his problem relating to coworkers, his failure to exercise sound discretion
in interacting with them, the unprofessional nature of the content of his communications with
them, and the degree to which he caused interference with the work of others as well as
himself.
Harbridge had retired from the Department at the time of the hearing.
18
Menaster's motion to amend the complaint to include a claim that he was
constructively discharged was denied before the hearing.
35

An employee alleging discrimination in a case involving a decision to reject on
probation bears a heavy burden in overcoming the employer's case for non-discriminatory
motive. (See McFarland Unified School District
v.
Public Employment Relations Ed. (1991)
228 Ca1.App.3d 166 [probationary teachers may be dismissed without cause]; cf. Moreland
Elementary School District (1982) PERB Decision No. 227 [regardless
of
employee's status,
employer in discrimination case need not prove just cause].) In contrast, in the case
of
a
permanent employee, a lengthy work history without consequence typically raises suspicions
about discriminatory intent
if
such history is overlooked or disregarded in arriving at the
decision to take the challenged adverse action. These principles apply here. Despite the
general concession that Menaster had the skills necessary to perform his job, the Department
had undertaken unusually concerted efforts during the probationary period to successfully
counsel Menaster away from inappropriate behaviors in an effort to have the special pilot plan
succeed. It had engaged in two formal meetings with UAPD attempting to establish an
understanding
of
what would be expected for Menaster to pass probation. The issue for the
Department was
as
much Menaster's apparent inability to comply with those expectations, as it
was a pattern
of
behavior that predicted even more counseling and resources dedicated to a
problematic situation in the future.
The record fairly establishes that the Department's arrangement to have Menaster work
remotely in Oakland was contingent upon his being able to focus on his cases with relatively
minimal day-to-day supervision. Menaster's difficulties adapting to the Sacramento office,
which had led to the borderline-standard first probation report, began to repeat themselves
when he was transferred to Oakland, providing a reasonable basis for the Department to
consider the risk of continuing his employment too great. As characterized by the anonymous
staffer to Schoenfelder early on, Menaster did not appear to be a "good fit" in the Department's
36
An employee alleging discrimination in a case involving a decision to reject on
probation bears a heavy burden in overcoming the employer's case for non-discriminatory
motive. (See McFarland Unified School District v. Public Employment Relations Bd. (1991)
228 Cal.App.3d 166 [probationary teachers may be dismissed without cause]; cf. Moreland
Elementary School District (1982) PERB Decision No. 227 [regardless of employee's status,
employer in discrimination case need not prove just cause].) In contrast, in the case of a
permanent employee, a lengthy work history without consequence typically raises suspicions
about discriminatory intent if such history is overlooked or disregarded in arriving at the
decision to take the challenged adverse action. These principles apply here. Despite the
general concession that Menaster had the skills necessary to perform his job, the Department
had undertaken unusually concerted efforts during the probationary period to successfully
counsel Menaster away from inappropriate behaviors in an effort to have the special pilot plan
succeed. It had engaged in two formal meetings with UAPD attempting to establish an
understanding of what would be expected for Menaster to pass probation. The issue for the
Department was as much Menaster's apparent inability to comply with those expectations, as it
was a pattern of behavior that predicted even more counseling and resources dedicated to a
problematic situation in the future.
The record fairly establishes that the Department's arrangement to have Menaster work
remotely in Oakland was contingent upon his being able to focus on his cases with relatively
minimal day-to-day supervision. Menaster's difficulties adapting to the Sacramento office,
which had led to the borderline-standard first probation report, began to repeat themselves
when he was transferred to Oakland, providing a reasonable basis for the Department to
consider the risk of continuing his employment too great. As characterized by the anonymous
staffer to Schoenfelder early on, Menaster did not appear to be a "good fit" in the Department's
36

view; he lacked "team player"
skills-in
a position whose role was more consultative
than
advocate. Menaster's aptitude for advocacy,
as
borne out through the course
of
his
employment and the hearing, has never been in question.
Therefore I find that the Department's decision to place Menaster on administrative
leave for the purpose
of
moving toward rejection on probation was motivated by legitimate
business reasons.
Failure To Reinstate
Here I find that there is insufficient evidence
to
state a prima facie violation. The
element
of
timing is the only one present to establish discriminatory intent. Only one
Sacramento branch office position was ever established in the Oakland office and it was filled
- by Menaster. That arrangement was novel and considered as an experiment. As explained
above, that experiment with Menaster was unsuccessful in the Department's view. Menaster
demonstrates nothing to establish that the Department's failure to offer him re-employment or
consider him for such was a departure from normal procedures.
Accordingly, I find that the State did not violate any rights
of
Menaster under the Dills
Act.
PROPOSED ORDER
Based on the foregoing findings
of
fact and conclusions
of
law, and the entire record in
this case, it is ordered that the complaint and underlying unfair practice charge in Case No.
SF-CE-240-S, Michael Menaster
v,
State
of
California (Department
of
Social Services), are
hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
37
view; he lacked "team player" skills-in a position whose role was more consultative than
advocate. Menaster's aptitude for advocacy, as borne out through the course of his
employment and the hearing, has never been in question.
Therefore I find that the Department's decision to place Menaster on administrative
leave for the purpose of moving toward rejection on probation was motivated by legitimate
business reasons.
Failure To Reinstate
Here I find that there is insufficient evidence to state a prima facie violation. The
element of timing is the only one present to establish discriminatory intent. Only one
Sacramento branch office position was ever established in the Oakland office and it was filled
by Menaster. That arrangement was novel and considered as an experiment. As explained
above, that experiment with Menaster was unsuccessful in the Department's view. Menaster
demonstrates nothing to establish that the Department's failure to offer him re-employment or
consider him for such was a departure from normal procedures.
Accordingly, I find that the State did not violate any rights of Menaster under the Dills
Act.
PROPOSED ORDER
Based on the foregoing findings of fact and conclusions of law, and the entire record in
this case, it is ordered that the complaint and underlying unfair practice charge in Case No.
SF-CE-240-S, Michael Menaster v. State of California (Department of Social Services), are
hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
37

Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916)	(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a), 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135,
subds. (b), (c), (d); see also Cal. Code Regs., tit. 8, §§ 32090, 32130.)
38
Donn Ginoza
Administrative Law Judge
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, $ 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, $$ 32135, subd. (a), 32130; see also Gov. Code,
$ 1 1020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, $ 32135,
subds. (b), (c), (d); see also Cal. Code Regs., tit. 8, $$ 32090, 32130.)
Donn Ginoza
Administrative Law Judge
38