Regents of the University of California (PERB 2302H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFREY ESTES,
Charging Party,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. LA-CE-1120-H
PERB Decision No. 2302-H
December 21, 2012
Appearances: Jeffrey Estes, on his own behalf; Carl D. Smith, Labor and Employment
Relations Consultant, for Regents
of
the University
of
California.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWD IN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by Jeffrey Estes (Estes) to the proposed decision
(attached)
of
a PERB administrative law judge (ALJ). The complaint and charge alleged that
the Regents
of
the University
of
California (University) violated section 357l(a)
of
the Higher
Education Employer-Employee Relations Act (HEERA)1 by suspending and terminating
Estes's employment in retaliation for having engaged in protected activities. The ALJ
determined that the evidence failed to establish a violation of 	and dismissed the
complaint and underlying charge. Estes excepts to that determination.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFREY ESTES,
Charging Party, 	Case No. LA-CE-1120-H
V . 	PERB Decision No. 2302-H
REGENTS OF THE UNIVERSITY OF 	December 21, 2012
CALIFORNIA,
Respondent.
Appearances: Jeffrey Estes, on his own behalf; Carl D. Smith, Labor and Employment
Relations Consultant, for Regents of the University of California.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by Jeffrey Estes (Estes) to the proposed decision
(attached) of a PERB administrative law judge (ALJ). The complaint and charge alleged that
the Regents of the University of California (University) violated section 3571(a) of the Higher
Education Employer-Employee Relations Act (HEERA)' by suspending and terminating
Estes's employment in retaliation for having engaged in protected activities. The ALJ
determined that the evidence failed to establish a violation of HEERA and dismissed the
complaint and underlying charge. Estes excepts to that determination.
HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

The Board has reviewed the proposed decision and the record in light
of
Estes' s
exceptions, the University's response,2 and the relevant law. Based on this review, we find the
ALJ's proposed decision to be well-reasoned, adequately supported by the record, and in
accordance with applicable law. Accordingly, the Board adopts the ALJ' s proposed decision
as the decision
of
the Board itself, supplemented by the discussion below.
DISCUSSION
In nineteen separate exceptions to the ALJ' s proposed decision, Estes asserts that the
ALJ erred in dismissing the complaint. In response, the University asserts that the statement
of
exceptions fails to comply with the filing requirements set forth in PERB's regulations
governing the filing
of
exceptions (see PERB Reg. 323003) and that the ALJ correctly
determined that the discipline would have occurred even in the absence
of
any protected
activity. Having reviewed the record, we conclude that the ALJ considered and addressed all
of
the issues raised in the exceptions appropriately, and adopt the ALJ's factual findings and
conclusions
of
law.
Estes's exceptions focus primarily on his claim that the University improperly assigned
him work and his denial
of
any inappropriate behavior in the workplace. Where, as here, the
charging party establishes a prima facie case
of
retaliation, the ·burden shifts to the employer to
prove that it would have taken the adverse action even
if
the employee had not engaged in
protected activity. (Novato Unified School 	(1982)	l District (1 	PERB
Borthers Distributors
v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730
(Martori B	(Mar 	Brothers); WrightLine (1(1980) 251 NLRB 1083.) When it appears that
In Regents
of
the University
of
California (Estes) (2012) PERB Order No. Ad-396-H,
we determined that the University established good cause for the late filing of its response to
the exceptions.
3 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
The Board has reviewed the proposed decision and the record in light of Estes's
exceptions, the University's response, " and the relevant law. Based on this review, we find the
ALJ's proposed decision to be well-reasoned, adequately supported by the record, and in
accordance with applicable law. Accordingly, the Board adopts the ALJ's proposed decision
as the decision of the Board itself, supplemented by the discussion below.
DISCUSSION
In nineteen separate exceptions to the ALJ's proposed decision, Estes asserts that the
ALJ erred in dismissing the complaint. In response, the University asserts that the statement of
exceptions fails to comply with the filing requirements set forth in PERB's regulations
governing the filing of exceptions (see PERB Reg. 32300') and that the ALJ correctly
determined that the discipline would have occurred even in the absence of any protected
activity. Having reviewed the record, we conclude that the ALJ considered and addressed all
of the issues raised in the exceptions appropriately, and adopt the ALJ's factual findings and
conclusions of law.
Estes's exceptions focus primarily on his claim that the University improperly assigned
him work and his denial of any inappropriate behavior in the workplace. Where, as here, the
charging party establishes a prima facie case of retaliation, the burden shifts to the employer to
prove that it would have taken the adverse action even if the employee had not engaged in
protected activity. (Novato Unified Schoo 	982) PERB	protected activity. (Novato
Borthers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730
rothers); Wright 	980) 251 NLRB 1083.) When it appears that
In Regents of the University of California (Estes) (2012) PERB Order No. Ad-396-H,
we determined that the University established good cause for the late filing of its response to
the exceptions.
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

employer's adverse action was motivated by both lawful and unlawful reasons, "the question
becomes whether the [adverse action] would not have occurred
'but
for' the protected
activity." (Martori Brothers.) The "but for" test is "an affirmative defense which the
employer must establish by a preponderance
of
the evidence." (McPherson
v.
Public
Employment Relations
Bd.
(1987) 189 Cal.App.3d 293, 304.)
In assessing the evidence, PERB's task is to determine whether the employer's true
motivation for taking the adverse action was the employee's protected activity. (Regents
of
the
University
of
California (1993) PERB Decision No. 1028-H (Regents); McFarland Unified
School District (1990) PERB Decision No. 786, aff'd McFarland Unified School Dist.
v.
Public Employment Relations Bd. (1991) 228 Cal.App.3d 166.) (City
of
Santa Monica (2011)
PERB Decision No. 2211-M (Santa Monica); Baker Valley Unified School District (2008)
PERB Decision No. 1993 (Baker Valley); Moreland Elementary School District (1982) PERB
Decision No. 227 ["Disciplinary action may be without just cause where it is based on any
of
a
host
of
improper or unlawful considerations which bear no relation to matters contemplated by
[the Educational Employment Relations Act (EERA)4] and which this Board is therefore
without power to remedy."]; San Bernardino City Unified School District (2004) PERB
Decision No. 1602.) Rather, "PERB weighs the employer's justifications for the adverse
action against the evidence
of
the employer's retaliatory motive." (Baker Valley.) "Once
PERB determines that the employer did not take action for an unlawful reason, its inquiry is at
an end; PERB has no authority to determine whether adverse action not motivated by protected
activity was just or proper." (Santa Monica.) Our authority to remedy adverse actions extends
only to that action which is unlawful under our statutes. (Regents; San Ysidro School District
(1980) PERB Decision No. 134.) We do not determine whether the employer had just cause to
4 EERA is codified at section 3540 et seq.
3
employer's adverse action was motivated by both lawful and unlawful reasons, "the question
becomes whether the [adverse action] would not have occurred 'but for' the protected
activity." (Martori Brothers.) The "but for" test is "an affirmative defense which the
employer must establish by a preponderance of the evidence." (McPherson v. Public
Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.)
In assessing the evidence, PERB's task is to determine whether the employer's true
motivation for taking the adverse action was the employee's protected activity. (Regents of the
University of California (1993) PERB Decision No. 1028-H (Regents); Mcfarland Unified
School District (1990) PERB Decision No. 786, aff'd McFarland Unified School Dist. v.
Public Employment Relations Bd. (1991) 228 Cal.App.3d 166.) (City of Santa Monica (2011)
PERB Decision No. 2211-M (Santa Monica); Baker Valley Unified School District (2008)
PERB Decision No. 1993 (Baker Valley); Moreland Elementary School District (1982) PERB
Decision No. 227 ["Disciplinary action may be without just cause where it is based on any of a
host of improper or unlawful considerations which bear no relation to matters contemplated by
[ the Educational Employment Relations Act (EERA)*] and which this Board is therefore
without power to remedy."]; San Bernardino City Unified School District (2004) PERB
Decision No. 1602.) Rather, "PERB weighs the employer's justifications for the adverse
action against the evidence of the employer's retaliatory motive." (Baker Valley.) "Once
PERB determines that the employer did not take action for an unlawful reason, its inquiry is at
an end; PERB has no authority to determine whether adverse action not motivated by protected
activity was just or proper." (Santa Monica.) Our authority to remedy adverse actions extends
only to that action which is unlawful under our statutes. (Regents; San Ysidro School District
(1980) PERB Decision No. 134.) We do not determine whether the employer had just cause to
EERA is codified at section 3540 et seq.
3

take adverse action, nor whether it was correct in its determination that the employee engaged
in misconduct. (Santa Monica.)
In conclusion, having reviewed the record thoroughly, we agree with the ALJ that,
although there was direct evidence that the University was motivated in part by Estes's
protected activity in deciding to take adverse action, the University established that it would
have taken the same action even
if
Estes had not engaged in the protected activity. We further
agree that the evidence failed to establish that the University's true motivation in deciding to
suspend and terminate Estes was based upon his protected activity rather than on its expressed
concerns over his behavior in the workplace.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-1120-H are
hereby DISMISSED.
Chair Martinez and Member Huguenin joined in this Decision.
4
take adverse action, nor whether it was correct in its determination that the employee engaged
in misconduct. (Santa Monica.)
In conclusion, having reviewed the record thoroughly, we agree with the ALJ that,
although there was direct evidence that the University was motivated in part by Estes's
protected activity in deciding to take adverse action, the University established that it would
have taken the same action even if Estes had not engaged in the protected activity. We further
agree that the evidence failed to establish that the University's true motivation in deciding to
suspend and terminate Estes was based upon his protected activity rather than on its expressed
concerns over his behavior in the workplace.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-1120-H are
hereby DISMISSED.
Chair Martinez and Member Huguenin joined in this Decision.
4

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFREY ESTES,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA (IRVINE),
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-1120-H
PROPOSED DECISION
(July 31, 2012)
Appearances: Jeffrey Estes on his own behalf; Samuel A. Strafaci, Senior Labor Relations
Consultant, for Regents
of
the University
of
California (Irvine).
Before Eric
J.
Cu, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a former higher education employee alleges that a higher education
employer suspended and then terminated his employment in retaliation for engaging in
protected activities. The employer denies any wrongdoing.
On September 29, 2010, Jeffrey Estes filed an unfair practice charge with the Public
Employment Relations Board (PERB or Board), alleging that the Regents
of
the University
of
California at Irvine (University) violated the Higher Education Employer-Employee Relations
Act (HEERA)1 based upon multiple theories. Estes amended his charge first on March 21,
11, 	again on May	
11.	
June
1,
2011, the 	the 	Counsel
dismissed 	allegations 	the charge except the claims that the University suspended and
terminated Estes's employment in retaliation for filing a grievance, discussing contractual
1 HEERA is codified at Government Code section 3560 et sequentes.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFREY ESTES,
UNFAIR PRACTICE
Charging Party, 	CASE NO. LA-CE-1120-H
V . 	PROPOSED DECISION
(July 31, 2012)
REGENTS OF THE UNIVERSITY OF
CALIFORNIA (IRVINE),
Respondent.
Appearances: Jeffrey Estes on his own behalf; Samuel A. Strafaci, Senior Labor Relations
Consultant, for Regents of the University of California (Irvine).
Before Eric J. Cu, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a former higher education employee alleges that a higher education
employer suspended and then terminated his employment in retaliation for engaging in
protected activities. The employer denies any wrongdoing.
On September 29, 2010, Jeffrey Estes filed an unfair practice charge with the Public
Employment Relations Board (PERB or Board), alleging that the Regents of the University of
California at Irvine (University) violated the Higher Education Employer-Employee Relations
Act (HEERA)' based upon multiple theories. Estes amended his charge first on March 21,
2011, and again on May 6, 2011. On June 1, 2011, the PERB Office of the General Counsel
dismissed all allegations in the charge except the claims that the University suspended and
terminated Estes's employment in retaliation for filing a grievance, discussing contractual
HEERA is codified at Government Code section 3560 et sequentes.

rights, and/or filing the instant unfair practice charge in September 2010.2 On those
allegations, PERB issued a complaint. On June 17, 2011, the University filed an answer to the
PERB complaint admitting all allegations except that there was any causal connection between
Estes's protected activities and his suspension and termination. The University also asserted
multiple affirmative defenses.
An informal settlement conference was held on July 13, 2011, but the matter was not
resolved. PERB held a formal hearing on six non-consecutive days between November 17,
2011 and April 23, 2012. On July 16, 2012, the parties filed simultaneous closing briefs. At
that point, the record was closed and the matter was submitted to PERB for decision.
FINDINGS OF FACT
The Parties
The University is an employer within the meaning
of
HEERA section 3562(g). Prior to
January 20, 201
i,
Estes was an employee
of
the University within the meaning
of
HEERA
section 3562(e).
The Instructional Technology Department
The University operates a Continuing Education program that offers fee-based courses
to the public. Oftentimes, Continuing Education courses have a technology component,
including "online" classes, where students can view and participate in instructor lectures via
the Internet. 	The Instructional Technology (ITECH) Department supports the technology
operations
of
the Continuing Education program. At all times relevant to this case, Wayne
Swift was the Director oflTECH and was Estes's direct supervisor. Jill James, the Director of
2 The PERB complaint erroneously alleged that some of these activities occurred in
2011. During the formal hearing, the parties agreed to amend the PERB complaint to reflect
that the listed protected activities occurred in 20 I 0, not 2011.
2
rights, and/or filing the instant unfair practice charge in September 2010." On those
allegations, PERB issued a complaint. On June 17, 2011, the University filed an answer to the
PERB complaint admitting all allegations except that there was any causal connection between
Estes's protected activities and his suspension and termination. The University also asserted
multiple affirmative defenses.
An informal settlement conference was held on July 13, 2011, but the matter was not
resolved. PERB held a formal hearing on six non-consecutive days between November 17,
2011 and April 23, 2012. On July 16, 2012, the parties filed simultaneous closing briefs. At
that point, the record was closed and the matter was submitted to PERB for decision.
FINDINGS OF FACT
The Parties
The University is an employer within the meaning of HEERA section 3562(g). Prior to
January 20, 2011, Estes was an employee of the University within the meaning of HEERA
section 3562(e).
The Instructional Technology Department
The University operates a Continuing Education program that offers fee-based courses
to the public. Oftentimes, Continuing Education courses have a technology component,
including "online" classes, where students can view and participate in instructor lectures via
the Internet. The Instructional Technology (ITECH) Department supports the technology
operations of the Continuing Education program. At all times relevant to this case, Wayne
Swift was the Director of ITECH and was Estes's direct supervisor. Jill James, the Director of
The PERB complaint erroneously alleged that some of these activities occurred in
2011. During the formal hearing, the parties agreed to amend the PERB complaint to reflect
that the listed protected activities occurred in 2010, not 2011.
2

Information Services, supervises Swift. Robert Rude, the Assistant Dean
of
University
Extension has overall responsibility for Continuing Education operations, including ITECH.
One
of
the positions at ITECH is the Computer Resource Specialist II (CRS). The
job
duties
of
this position include providing technical assistance to both instructors and students,
updating calendars, testing, repairing, configuring, and cleaning the Extension computer
laboratory (computer lab) computers, and coordinating the work
of
student employees. The
CRS position is expected to be familiar with various software applications such as WebEx,
used for creating online classroom environments, PowerCampus, used to create and maintain
calendars, and Voice-Over Power-Point (VoPP), used by instructors to overlay lecture or other
narration into synchronous audio-video presentations. The CRS position is part
of
a
bargaining unit that is represented by the University Professional and Technical Employees
Union (UPTE).
The ITECH Department also employs Program Analyst (PA) II and III positions that
have more technical expertise than the CRS position. Generally speaking, only the PA
positions perform complex functions involving the Extension's computer networks and
servers. It is unclear whether the PA position is represented by UPTE.
Estes's Work Performance From October 2007 Through June 2009
On October 5, 2007, Estes was hired as a part-time CRS. Initially, his job duties
included using various software programs to monitor, test, or troubleshoot different University
Extension operations. For example, Estes monitored online classes and other Extension events
using the WebEx software.
The University rated Estes as "Exceeds Expectations" during his first performance
evaluation (2007-2008). Among other comments, Swift praised Estes for his familiarity with
different computer operating systems and his ability to assist students and instructors using
3
Information Services, supervises Swift. Robert Rude, the Assistant Dean of University
Extension has overall responsibility for Continuing Education operations, including ITECH.
One of the positions at ITECH is the Computer Resource Specialist II (CRS). The job
duties of this position include providing technical assistance to both instructors and students,
updating calendars, testing, repairing, configuring, and cleaning the Extension computer
laboratory (computer lab) computers, and coordinating the work of student employees. The
CRS position is expected to be familiar with various software applications such as WebEx,
used for creating online classroom environments, PowerCampus, used to create and maintain
calendars, and Voice-Over Power-Point (VoPP), used by instructors to overlay lecture or other
narration into synchronous audio-video presentations. The CRS position is part of a
bargaining unit that is represented by the University Professional and Technical Employees
Union (UPTE).
The ITECH Department also employs Program Analyst (PA) II and III positions that
have more technical expertise than the CRS position. Generally speaking, only the PA
positions perform complex functions involving the Extension's computer networks and
servers. It is unclear whether the PA position is represented by UPTE.
Estes's Work Performance From October 2007 Through June 2009
On October 5, 2007, Estes was hired as a part-time CRS. Initially, his job duties
included using various software programs to monitor, test, or troubleshoot different University
Extension operations. For example, Estes monitored online classes and other Extension events
using the WebEx software.
The University rated Estes as "Exceeds Expectations" during his first performance
evaluation (2007-2008). Among other comments, Swift praised Estes for his familiarity with
different computer operating systems and his ability to assist students and instructors using

ITECH equipment and software. In the next evaluation (2008-2009), the University again
rated Estes as "Exceeds Expectations." Swift again commended Estes for his contributions to
the ITECH department, but also commented that he "sometimes challenge[
d]
established
policies and procedures in an inappropriate manner by e-mail and during meetings." Swift also
commented that there "were a few times when [Estes] perceived policies and procedures as
being unfair or inefficient and [he] spent too much time debating these instead
of
directly
addressing support issues."
Changes at ITECH in 2009
Starting in 2009, the University Extension experienced a noticeable swell in distance
learning activity, such as increases in WebEx based meetings and a concomitant need for
additional VoPP production. As a result, Estes was assigned additional work including
creating new WebEx meetings and posting them onto the University Extension web page.
Regarding VoPP, Estes was assigned to convert the presentations into video files, rather than
merely testing those files during the conversion process. Estes complained that these new job
duties were previously performed by PA positions, not the CRS.
On July 13, 2009, Swift met with Estes and raised some concerns about Estes's recent
workplace interactions. Swift commented that other staff felt that Estes was uncooperative and
argumentative during meetings, that he inappropriately challenged department policy, and that
he avoided doing his job by deferring to other staff or challenging the assignment policy.
Swift directed Estes to change his communication with others and to focus on his job duties.
Swift also commented about the cleanliness
of
the computer labs. Swift memorialized his
concerns in an e-mail message dated July 16,.2009. Estes responded to this e-mail message,
stating that more often than not, computer labs are clean and noting that, during the past year,
the ITECH Department assumed more functions and began using new software.
4
ITECH equipment and software. In the next evaluation (2008-2009), the University again
rated Estes as "Exceeds Expectations." Swift again commended Estes for his contributions to
the ITECH department, but also commented that he "sometimes challenge[d] established
policies and procedures in an inappropriate manner by e-mail and during meetings." Swift also
commented that there "were a few times when [Estes] perceived policies and procedures as
being unfair or inefficient and [he] spent too much time debating these instead of directly
addressing support issues."
Changes at ITECH in 2009
Starting in 2009, the University Extension experienced a noticeable swell in distance
learning activity, such as increases in WebEx based meetings and a concomitant need for
additional VoPP production. As a result, Estes was assigned additional work including
creating new WebEx meetings and posting them onto the University Extension web page.
Regarding VoPP, Estes was assigned to convert the presentations into video files, rather than
merely testing those files during the conversion process. Estes complained that these new job
duties were previously performed by PA positions, not the CRS.
On July 13, 2009, Swift met with Estes and raised some concerns about Estes's recent
workplace interactions. Swift commented that other staff felt that Estes was uncooperative and
argumentative during meetings, that he inappropriately challenged department policy, and that
he avoided doing his job by deferring to other staff or challenging the assignment policy.
Swift directed Estes to change his communication with others and to focus on his job duties.
Swift also commented about the cleanliness of the computer labs. Swift memorialized his
concerns in an e-mail message dated July 16, 2009. Estes responded to this e-mail message,
stating that more often than not, computer labs are clean and noting that, during the past year,
the ITECH Department assumed more functions and began using new software.
4

Estes's Request for UPTE Representation
In September 2009, Estes approached UPTE representative Michael Moore about his
belief that Swift had been assigning him job duties outside scope
of
the CRS job description.
On September 17, 2009, Estes requested a meeting with Swift and Moore to discuss the matter.
Estes also explained to Swift that he wished to either be reclassified as a PA or that he no
longer be assigned more advanced job duties. 	Swift agreed to meet but scheduling discussions
continued until November 2009. No meeting was held due to Moore's unavailability and
because another project came up that needed attention.
Around that time, Estes participated in a one-day demonstration on behalf
of
UPTE to
protest the University's conduct during ongoing contract negotiations. Estes described the
demonstration as a "strike." No further detail was provided about the demonstration and no
evidence was presented that Swift or any other ITECH representative was aware
of
Estes' s
participation in the demonstration.
The University's Counseling, Investigation, and Issuance of Written Warning
#1
In February 2010, some ITECH laptop computers became infected with a virus. Swift
assigned Steven Gilmer, an ITECH PA III to address the issue, which he did. However, after
learning that the matter had been resolved, Estes sent an e-mail message to all ITECH staff
explaining that he was uncomfortable with Gilmer's conduct. Swift informed Estes that the
communication was inappropriate.
On February 25, 2010, Swift met with Estes to discuss Estes's attitude at 	Swift
described 	as "argumentative and disruptive," 	incidents where he observed Estes
having an "angry outburst" or arguing 	Swift in front of other staff. Swift later testified
that he observed at least two other similar incidents around that time including a "violent
emotional outburst" where Estes used profanity. Swift also noted that Estes disobeyed his
5
Estes's Request for UPTE Representation
In September 2009, Estes approached UPTE representative Michael Moore about his
belief that Swift had been assigning him job duties outside scope of the CRS job description.
On September 17, 2009, Estes requested a meeting with Swift and Moore to discuss the matter.
Estes also explained to Swift that he wished to either be reclassified as a PA or that he no
longer be assigned more advanced job duties. Swift agreed to meet but scheduling discussions
continued until November 2009. No meeting was held due to Moore's unavailability and
because another project came up that needed attention.
Around that time, Estes participated in a one-day demonstration on behalf of UPTE to
protest the University's conduct during ongoing contract negotiations. Estes described the
demonstration as a "strike." No further detail was provided about the demonstration and no
evidence was presented that Swift or any other ITECH representative was aware of Estes's
participation in the demonstration.
The University's Counseling, Investigation, and Issuance of Written Warning #1
In February 2010, some ITECH laptop computers became infected with a virus. Swift
assigned Steven Gilmer, an ITECH PA III to address the issue, which he did. However, after
learning that the matter had been resolved, Estes sent an e-mail message to all ITECH staff
explaining that he was uncomfortable with Gilmer's conduct. Swift informed Estes that the
communication was inappropriate.
On February 25, 2010, Swift met with Estes to discuss Estes's attitude at work. Swift
as "argumentative and disruptive,"	described Estes 	citing incidents where he observed Estes
having an "angry outburst" or arguing with Swift in front o	having an "angry outburst" or arguing
that he observed at least two other similar incidents around that time including a "violent
emotional outburst" where Estes used profanity. Swift also noted that Estes disobeyed his
5

order to stop sending argumentative e-mail messages to all staff concerning his personnel
complaints. Estes later informed Swift in an e-mail message
of
his "preference to have [his]
union rep[resentative] present in any meeting that might have even the merest whiff
of
being
of
a disciplinary nature so [the February 25,
201
O]
meeting was purely informational."
On March 2, 2010, Swift attempted to give Estes a "Confirming Memo" describing the
meeting. Estes refused to accept the document because he did not have UPTE representation.
Swift issued the memorandum to Estes on March 4, 2010.
On March 9, 2010, Gilmer sent a letter to University Extension Human Resources
Director, Harriet Whitmyer, complaining about Estes's treatment
of
both him and Swift.
Gilmer also complained the Estes showed students videos "about some political subjects most
often centering around the definition
of
a family and sexual preferences."
On March 10, 2010, Whitmyer requested Estes's presence at an investigatory meeting
to discuss Gilmer's complaints and other issues. Whitmyer invited Estes to bring an UPTE
representative to the meeting. The parties agreed to meet on April 6, 2010.
On March 18, 2010, Swift issued Estes a document entitled "Written Warning-
Continued Argumentative and Insubordinate Behavior" (Written Warning #1). The basis for
the written warning was Estes's conduct during the February 25, 2010 meeting, his refusal to
accept the March 2, 2010 confirming memorandum, and his continued effort to argue with
Swift over the issues covered in the February 25, 2010 meeting. On March 26, 2010, Estes
filed a grievance over the issuance
of
Written Warning #
1.
	There was no showing that any
ITECH representative was aware
of
this grievance. The outcome of the grievance was not
established in the record.
Around the same time, Estes requested that the parties participate in the University's
Campus Mediation Program run by the Ombudsman's Office along with an UPTE
6
order to stop sending argumentative e-mail messages to all staff concerning his personnel
complaints. Estes later informed Swift in an e-mail message of his "preference to have [his]
union representative] present in any meeting that might have even the merest whiff of being of
a disciplinary nature so [the February 25, 2010] meeting was purely informational."
On March 2, 2010, Swift attempted to give Estes a "Confirming Memo" describing the
meeting. Estes refused to accept the document because he did not have UPTE representation.
Swift issued the memorandum to Estes on March 4, 2010.
On March 9, 2010, Gilmer sent a letter to University Extension Human Resources
Director, Harriet Whitmyer, complaining about Estes's treatment of both him and Swift.
Gilmer also complained the Estes showed students videos "about some political subjects most
often centering around the definition of a family and sexual preferences."
On March 10, 2010, Whitmyer requested Estes's presence at an investigatory meeting
to discuss Gilmer's complaints and other issues. Whitmyer invited Estes to bring an UPTE
representative to the meeting. The parties agreed to meet on April 6, 2010.
On March 18, 2010, Swift issued Estes a document entitled "Written Warning-
Continued Argumentative and Insubordinate Behavior" (Written Warning #1). The basis for
the written warning was Estes's conduct during the February 25, 2010 meeting, his refusal to
accept the March 2, 2010 confirming memorandum, and his continued effort to argue with
Swift over the issues covered in the February 25, 2010 meeting. On March 26, 2010, Estes
filed a grievance over the issuance of Written Warning #1. There was no showing that any
ITECH representative was aware of this grievance. The outcome of the grievance was not
established in the record.
Around the same time, Estes requested that the parties participate in the University's
Campus Mediation Program run by the Ombudsman's Office along with an UPTE
6

representative. The University declined Estes's request because Whitmyer and Rude felt that
mediation would not be productive.
On April 6, 2010, the parties participated in the previously scheduled meeting. Estes
was present, along with UPTE representative Sue Cross, Rude, Swift and Whitmyer.
Whitmyer questioned Estes regarding multiple subjects, including student Estes's interactions
with Gilmer and Swift. Estes was also asked about his use
of
University computers to display
sexual or political material. Estes denied any wrongdoing. The University decided that no
further action was necessary after the meeting.
The Decision to Convert the CRS Position
In or around April 2010, James, Rude, Swift, and Whitmyer discussed how to address
the increased workload and evolving technological needs
of
the University Extension. The
group felt that ITECH needed a full-time PA-level position rather than the part-time CRS
position filled by Estes. The group considered eliminating the CRS position and laying Estes
off, but felt that Estes should have the opportunity to qualify for the position as he had
requested. The group then decided that it would convert Estes's CRS position to full-time and
then train him to become a PA. When the University informed Estes
of
this decision, he said
he preferred to remain part-time. The University did not reverse its decision. Estes's
conversion from part- to full-time was effective on or around July 6, 20 l
0.
The Issuance of Written Warning #2
On
July 7, 2010, Swift informed Estes that he was placing Estes in charge
of
all WebEx
recordings, including downloading classes
and
posting them onto the Extension website. Estes
again complained that those WebEx duties were typically performed by Swift or other
positions with more technical expertise than the CRS position. On July 9, 2010, Rude sent
7
representative. The University declined Estes's request because Whitmyer and Rude felt that
mediation would not be productive.
On April 6, 2010, the parties participated in the previously scheduled meeting. Estes
was present, along with UPTE representative Sue Cross, Rude, Swift and Whitmyer.
Whitmyer questioned Estes regarding multiple subjects, including student Estes's interactions
with Gilmer and Swift. Estes was also asked about his use of University computers to display
sexual or political material. Estes denied any wrongdoing. The University decided that no
further action was necessary after the meeting.
The Decision to Convert the CRS Position
In or around April 2010, James, Rude, Swift, and Whitmyer discussed how to address
the increased workload and evolving technological needs of the University Extension. The
group felt that ITECH needed a full-time PA-level position rather than the part-time CRS
position filled by Estes. The group considered eliminating the CRS position and laying Estes
off, but felt that Estes should have the opportunity to qualify for the position as he had
requested. The group then decided that it would convert Estes's CRS position to full-time and
then train him to become a PA. When the University informed Estes of this decision, he said
he preferred to remain part-time. The University did not reverse its decision. Estes's
conversion from part- to full-time was effective on or around July 6, 2010.
The Issuance of Written Warning #2
On July 7, 2010, Swift informed Estes that he was placing Estes in charge of all WebEx
recordings, including downloading classes and posting them onto the Extension website. Estes
again complained that those WebEx duties were typically performed by Swift or other
positions with more technical expertise than the CRS position. On July 9, 2010, Rude sent
7

Estes an e-mail message stating that he considered Estes's disregard for directions from his
supervisor to be argumentative and unacceptable.
On July 26, 2010, Gilmer informed Estes via e-mail that Swift wanted him (Estes) to
install new computers in one
of
the computer labs. Estes asked whether the assignment was
mandatory
or
merely a training exercise and Gilmer responded that Swift expected the
assignment to be completed that week.
Estes replied on July 27, 2010, stating in part "I am
puzzled-you
seemed to suggest
that
I'm
unwilling to install new computers in our classrooms, despite two different emails
from me to the contrary
....
	Your interpretation has no foundation, certainly not based on
what I wrote." Estes then said
"I'd
ask that you review what I wrote [in prior e-mail
correspondence] and re-evaluate this misperception.
	I'd
also hope that other recollections you
have regarding me are not similarly colored by unfounded reasoning."
Gilmer responded to Estes's e-mail later that day, stating that he was "disturbed" by
Estes' s response because he felt that nothing in his earlier messages suggested that he thought
Estes was unwilling to perform the assigned task. Gilmer sent a copy
of
his reply to Swift.
On August 11, 2010, Rude issued Estes a document entitled "Second Written Warning
- Continued Argumentative and Disruptive Behavior" (Written Warning #2), accusing Estes
of
disrespectful behavior exhibited towards Gilmer. Rude stated his opinion that Estes's response
to Gilmer's 	26, 	10 e-mail messages was "argumentative and counter-productive" and
that he felt 	was intentionally trying to "provoke and antagonize Mr. Gilmer." Rude also
cited previous attempts to correct Estes's behavior, including counseling on October 29, 2009,
December 10, 2009, and February 25, 2010, through Written Warning #1, and through Rude's
July 9, 2010 e-mail message about following supervisorial instruction. Rude later met with
Gilmer to counsel him about his role in the e-mail exchange with Estes.
8
Estes an e-mail message stating that he considered Estes's disregard for directions from his
supervisor to be argumentative and unacceptable.
On July 26, 2010, Gilmer informed Estes via e-mail that Swift wanted him (Estes) to
install new computers in one of the computer labs. Estes asked whether the assignment was
mandatory or merely a training exercise and Gilmer responded that Swift expected the
assignment to be completed that week.
Estes replied on July 27, 2010, stating in part "I am puzzled - you seemed to suggest
that I'm unwilling to install new computers in our classrooms, despite two different emails
from me to the contrary. . . . Your interpretation has no foundation, certainly not based on
what I wrote." Estes then said "I'd ask that you review what I wrote [in prior e-mail
correspondence] and re-evaluate this misperception. I'd also hope that other recollections you
have regarding me are not similarly colored by unfounded reasoning."
Gilmer responded to Estes's e-mail later that day, stating that he was "disturbed" by
Estes's response because he felt that nothing in his earlier messages suggested that he thought
Estes was unwilling to perform the assigned task. Gilmer sent a copy of his reply to Swift.
On August 11, 2010, Rude issued Estes a document entitled "Second Written Warning
- Continued Argumentative and Disruptive Behavior" (Written Warning #2), accusing Estes of
disrespectful behavior exhibited towards Gilmer. Rude stated his opinion that Estes's response
to Gilmer's July 26, 2010 e-mail messages was "argumentative and counter-productive" and
that he felt Estes was intentionally trying to "provoke and antagonize Mr. Gilmer." Rude also
cited previous attempts to correct Estes's behavior, including counseling on October 29, 2009,
December 10, 2009, and February 25, 2010, through Written Warning #1, and through Rude's
July 9, 2010 e-mail message about following supervisorial instruction. Rude later met with
Gilmer to counsel him about his role in the e-mail exchange with Estes.
8

Estes requested time to draft a written response to Written Warning #2 during work
hours. 	Swift replied that Estes could respond during work-time so long as it did not interfere
with his work performance. On September
7,
2010, Estes filed a grievance over the issuance
of
Written Warning #2. The grievance was denied on September 24, 2010.
The September 2010 Sick Leave Incident
On September 8 and 9, 2010, Wednesday and Thursday, Estes took two consecutive
sick days. On September
9,
2010, Swift informed Estes via e-mail that "HR policy requires
[Estes] to provide a doctor's note upon return to work for an absence
of
three or more
consecutive sick leave days." According to Section 39(D)(3)
of
the University/UPTE
contract, the University may require documentation for sick leave absences less than three days
only when it appears to be justified and the University gives the employee advance written
notice that documentation would be required.
That day, Estes replied to Swift's e-mail message stating that he believed that the
UPTE-University Collective Bargaining Agreement states "that
if
three days are EXCEEDED
then a note MAY be required. This has never been an issue before. Where is this coming from
and where is it justified?" Estes was, in fact, absent for a third consecutive day on Friday,
September 10, 2010.
On or around September 10, 20 I 0, Swift consulted with Whitmyer. The two discussed
what 	to take sick leave around weekends at least once
month over the past four months. They did not examine any other employee's use
of
sick
leave at that time. However, 	record does include evidence 	other 	employees
who took multiple sick days provided a doctor's note or other verification. The two decided
that it would be appropriate to require Estes to provide a doctor's note because the
September 8-10, 2010 absence was again adjacent to the weekend.
9
Estes requested time to draft a written response to Written Warning #2 during work
hours. Swift replied that Estes could respond during work-time so long as it did not interfere
with his work performance. On September 7, 2010, Estes filed a grievance over the issuance
of Written Warning #2. The grievance was denied on September 24, 2010.
The September 2010 Sick Leave Incident
On September 8 and 9, 2010, Wednesday and Thursday, Estes took two consecutive
sick days. On September 9, 2010, Swift informed Estes via e-mail that "HR policy requires
[Estes] to provide a doctor's note upon return to work for an absence of three or more
consecutive sick leave days." According to Section 39(D)(3) of the University/UPTE
contract, the University may require documentation for sick leave absences less than three days
only when it appears to be justified and the University gives the employee advance written
notice that documentation would be required.
That day, Estes replied to Swift's e-mail message stating that he believed that the
UPTE-University Collective Bargaining Agreement states "that if three days are EXCEEDED
then a note MAY be required. This has never been an issue before. Where is this coming from
and where is it justified?" Estes was, in fact, absent for a third consecutive day on Friday,
September 10, 2010.
On or around September 10, 2010, Swift consulted with Whitmyer. The two discussed
what Swift perceived to be a pattern by Estes to take sick leave around weekends at least once
per month over the past four months. They did not examine any other employee's use of sick
eave at that time. However, t	l 	he record does include evidence that other ITECH employees
who took multiple sick days provided a doctor's note or other verification. The two decided
that it would be appropriate to require Estes to provide a doctor's note because the
September 8-10, 2010 absence was again adjacent to the weekend.
9

Later that day, Swift informed Estes via e-mail that the Extension policy and the UPTE
contract allow the University to require a doctor's note. Swift did not mention either his
discussion with Whitmyer or his consideration
of
Estes's prior absences in this e-mail
message.
Estes replied, asking what section
of
the UPTE contract allowed for Swift to request a
doctor's note. Swift replied that he did not have the UPTE contract on hand, but that his
"expectation is that [Estes would] provide a doctor's note upon [his] return per [Swift's]
previous message." Over the weekend, UPTE representative Cross e-mailed the
University/UPTE contract to Swift. Estes again asserted his belief that a note should not be
required for absences
of
three days or less.
On Monday, September 13, 2010, Swift informed Estes via e-mail that section 39(D)(3)
of
the UPTE contract allowed the University to require a doctor's verification for absences less
than three days when it appears to be justified and
if
prior notice is given to the employee that
verification was necessary. Swift stated his belief that both criteria were met in this case.
Estes replied to Swift's message, but the contents
of
his reply were not included in the record.
Swift met with Estes around noon that day and requested that Estes produce a doctor's
note. Estes asked a series
of
questions about whether he would be paid for that day
if
he did
not have a note and Swift stated that he would check with Human Resources and get back to
Estes. Swift recalled asking Estes to produce a doctor's note four or five times. Estes recalled
asking Swift whether he wanted to see the note but Swift replied "yes, no, would you like me
to get back to you on that?" Estes did not produce a doctor's note at that time.
At around 5:00 p.m., that day, Swift and Rude spoke to Estes about the doctor's note
issue. Rude asked Estes whether he had a doctor's note. Estes again asked questions about
whether he would be paid if he did not produce a note. Rude stated that it was not the
10
Later that day, Swift informed Estes via e-mail that the Extension policy and the UPTE
contract allow the University to require a doctor's note. Swift did not mention either his
discussion with Whitmyer or his consideration of Estes's prior absences in this e-mail
message.
Estes replied, asking what section of the UPTE contract allowed for Swift to request a
doctor's note. Swift replied that he did not have the UPTE contract on hand, but that his
"expectation is that [Estes would] provide a doctor's note upon [his] return per [Swift's]
previous message." Over the weekend, UPTE representative Cross e-mailed the
University/UPTE contract to Swift. Estes again asserted his belief that a note should not be
required for absences of three days or less.
On Monday, September 13, 2010, Swift informed Estes via e-mail that section 39(D)(3)
of the UPTE contract allowed the University to require a doctor's verification for absences less
than three days when it appears to be justified and if prior notice is given to the employee that
verification was necessary. Swift stated his belief that both criteria were met in this case.
Estes replied to Swift's message, but the contents of his reply were not included in the record.
Swift met with Estes around noon that day and requested that Estes produce a doctor's
note. Estes asked a series of questions about whether he would be paid for that day if he did
not have a note and Swift stated that he would check with Human Resources and get back to
Estes. Swift recalled asking Estes to produce a doctor's note four or five times. Estes recalled
asking Swift whether he wanted to see the note but Swift replied "yes, no, would you like me
to get back to you on that?" Estes did not produce a doctor's note at that time.
At around 5:00 p.m., that day, Swift and Rude spoke to Estes about the doctor's note
issue. Rude asked Estes whether he had a doctor's note. Estes again asked questions about
whether he would be paid if he did not produce a note. Rude stated that it was not the
10

appropriate time to address those questions and demanded to know whether Estes had a
doctor's note. Rude requested the note three or four additional times before Estes handed the
note to Swift. On September 23, 2010, Estes filed a grievance over this incident. The
University denied the grievance on October 14, 2010.
Estes's 2009-2010 Performance Evaluation and Suspension
On September 21, 2010, Estes received his third performance evaluation from the
University. Estes's overall performance was rated as "Improvement Needed." Swift included
multiple comments that Estes was "disrespectful" and "confrontational" in his interactions with
other ITECH staff and also that he inappropriately objected to performing tasks that were
included as part
of
his job description.
On September 22, 2010, the University issued Estes a document entitled "Notice
of
Intent to Suspend." This document, authored by Rude, informed Estes that the University
intended to suspend his employment for three days without pay due to what Rude described as
"continued argumentative, insolent, and insubordinate behavior." Rude referenced prior
counseling and discipline administered to Estes. Rude also described Estes' s recent conduct
regarding the doctor's note request. Rude also cited another incident where Estes continued
sending e-mail messages about an issue with one
of
the laptop computers after Swift informed
Estes that the matter was resolved.
September 28, 2010, Estes requested the 	to respond to the Notice
of
to Suspend during work time. 	Swift denied the request. During the hearing, Swift
testified that he 	request because of concerns that Estes was spending too much work
time drafting argumentative communications.
On October 4, 2010, the University issued Estes an "Amended Notice to Suspend"
providing Estes with additional time to write a response. Estes filed a response on October 4,
11
appropriate time to address those questions and demanded to know whether Estes had a
doctor's note. Rude requested the note three or four additional times before Estes handed the
note to Swift. On September 23, 2010, Estes filed a grievance over this incident. The
University denied the grievance on October 14, 2010.
Estes's 2009-2010 Performance Evaluation and Suspension
On September 21, 2010, Estes received his third performance evaluation from the
University. Estes's overall performance was rated as "Improvement Needed." Swift included
multiple comments that Estes was "disrespectful" and "confrontational" in his interactions with
other ITECH staff and also that he inappropriately objected to performing tasks that were
included as part of his job description.
On September 22, 2010, the University issued Estes a document entitled "Notice of
Intent to Suspend." This document, authored by Rude, informed Estes that the University
intended to suspend his employment for three days without pay due to what Rude described as
"continued argumentative, insolent, and insubordinate behavior." Rude referenced prior
counseling and discipline administered to Estes. Rude also described Estes's recent conduct
regarding the doctor's note request. Rude also cited another incident where Estes continued
sending e-mail messages about an issue with one of the laptop computers after Swift informed
Estes that the matter was resolved.
On September 28, 2010, Estes requested the opportunity to respond to the Notice of
Intent to Suspend during work time. Swift denied the request. During the hearing, Swift
testified that he denied the request because of concerns that Estes was spending too much work
time drafting argumentative communications.
On October 4, 2010, the University issued Estes an "Amended Notice to Suspend"
providing Estes with additional time to write a response. Estes filed a response on October 4,
11

2010. On October 7, 2010, the University suspended Estes's employment for three days
without pay.
On November 5, 2010, Swift briefly demonstrated how to update calendars using the
PowerCampus software and assigned Estes to perform a similar task. Estes complained that he
was unfamiliar with the software and that a PA III used to perform that task.
On November 22, 2010, Estes attended another meeting with Rude, Swift, and James.
Estes was issued a document entitled "ITECH - CRS to PA Transition: Training Goals &
Timeline." The goal
of
the meeting and the timeline was to develop a training schedule to
transition Estes to become a PA. Estes complained that the training goals amounted to a "300
percent" increase in assigned tasks. Rude informed Estes that he would not be assigned new
tasks without proper training.
On December 13, 2010, Swift assigned Estes to inspect and update computers in the
computer lab while students were on winter recess. Estes complained that the updates were
typically performed by the PA III position. After Estes also complained that there was
insufficient time to complete the task, Swift instructed Estes to do whatever he could during
one hour per day. Estes sent multiple e-mail messages to all ITECH staff regarding the
progress and complications in completing this assignment. In one message, Estes questioned
whether Swift's update schedule was "realistic."
Estes's 	Employment
January 4, 	11, 	University issued Estes a document entitled "Intent to Dismiss-
Continued Argumentative and Insubordinate-Like Behavior" (Notice of Intent to Dismiss),
authored by Rude. In the document, Rude broadly described the University's attempts to
address what it perceived to be Estes's "argumentative, disrespectfui and
...
inappropriate"
behavior without success. Rude distinguished an employee's asking questions and raising
12
2010. On October 7, 2010, the University suspended Estes's employment for three days
without pay.
On November 5, 2010, Swift briefly demonstrated how to update calendars using the
PowerCampus software and assigned Estes to perform a similar task. Estes complained that he
was unfamiliar with the software and that a PA III used to perform that task.
On November 22, 2010, Estes attended another meeting with Rude, Swift, and James.
Estes was issued a document entitled "ITECH - CRS to PA Transition: Training Goals &
Timeline." The goal of the meeting and the timeline was to develop a training schedule to
transition Estes to become a PA. Estes complained that the training goals amounted to a "300
percent" increase in assigned tasks. Rude informed Estes that he would not be assigned new
tasks without proper training.
On December 13, 2010, Swift assigned Estes to inspect and update computers in the
computer lab while students were on winter recess. Estes complained that the updates were
typically performed by the PA III position. After Estes also complained that there was
insufficient time to complete the task, Swift instructed Estes to do whatever he could during
one hour per day. Estes sent multiple e-mail messages to all ITECH staff regarding the
progress and complications in completing this assignment. In one message, Estes questioned
whether Swift's update schedule was "realistic."
Estes's Termination From Employment
January 4, 2011,	On 	the University issued Estes a document entitled "Intent to Dismiss-
Continued Argumentative and Insubordinate-Like Behavior" (Notice of Intent to Dismiss),
authored by Rude. In the document, Rude broadly described the University's attempts to
address what it perceived to be Estes's "argumentative, disrespectful and . . . inappropriate"
behavior without success. Rude distinguished an employee's asking questions and raising
12

concerns with management from arguing and continuously reiterating those concerns after
management provides an answer. The document attached multiple counseling and disciplinary
documents as well as an eight-page summary
of
the conduct after the October 2010
suspension. The majority
of
the incidents described in the summary were not independently
described in the record. Estes requested a meeting to discuss the matter and one was scheduled
for January 19, 2011. Estes later sought to postpone the meeting so that he could find
an
attorney to represent him, but Rude denied the request because Estes had already arranged to
have UPTE representation.
On January 19, 2011, Estes attended the meeting along with Rude, Swift, Whitmyer,
and UPTE representative, Cross. Rude informed Estes that this was his opportunity to respond
to the Notice
of
Intent to Dismiss. Estes read a short statement explaining his opinion that he
performed his job duties well and that he is popular among most Extension employees. Estes
also expressed that he felt it was unfair to be required to participate in the meeting without an
attorney. Cross expressed her disappointment that the University had declined their requests
for mediation. Rude said he would consider what was said and the University would make its
final determination regarding termination the next day. 	On January 20, 2011, the University
issued Estes a "Written Notice
of
Final Dismissal" stating that his employment with the
University was terminated effective that day.
ISSUES
i.
	Did the 	suspend Estes's employment without pay 	a three days in
engagmg 	protected activity?
Did the University terminate Estes's employment 	retaliation 	engaging in
protected activity?
13
concerns with management from arguing and continuously reiterating those concerns after
management provides an answer. The document attached multiple counseling and disciplinary
documents as well as an eight-page summary of the conduct after the October 2010
suspension. The majority of the incidents described in the summary were not independently
described in the record. Estes requested a meeting to discuss the matter and one was scheduled
for January 19, 2011. Estes later sought to postpone the meeting so that he could find an
attorney to represent him, but Rude denied the request because Estes had already arranged to
have UPTE representation.
On January 19, 2011, Estes attended the meeting along with Rude, Swift, Whitmyer,
and UPTE representative, Cross. Rude informed Estes that this was his opportunity to respond
to the Notice of Intent to Dismiss. Estes read a short statement explaining his opinion that he
performed his job duties well and that he is popular among most Extension employees. Estes
also expressed that he felt it was unfair to be required to participate in the meeting without an
attorney. Cross expressed her disappointment that the University had declined their requests
for mediation. Rude said he would consider what was said and the University would make its
final determination regarding termination the next day. On January 20, 2011, the University
issued Estes a "Written Notice of Final Dismissal" stating that his employment with the
University was terminated effective that day.
ISSUES
1 . 	Did the University suspend Estes's employment without pay for a three days in
retaliation for engaging in protected activity?
2. 	Did the University terminate Estes's employment in retaliation for engaging in
protected activity?
13

CONCLUSIONS OF LAW
To demonstrate a prima facie case that an employer discriminated or retaliated against
an employee in violation
of
HEERA section 3571(a), the charging party must show that:
(1) the employee exercised rights under HEERA; (2) the employer had knowledge
of
the
exercise
of
those rights; (3) the employer took adverse action against the employee; and (4) the
employer took the action because
of
the exercise
of
those rights. (Regents
of
the University
of
California (Los Angeles) (2008) PERB Decision No. 1995-H, citing Novato Unified School
District (1982) PERB Decision No. 210 (Novato).)
1. 	Estes's Protected Activity
To establish first element
of
a prima facie case for retaliation the charging party must
demonstrate participation in specific acts protected by HEERA. (Regents
of
the University
of
California (2006) PERB Decision No. 1843-H.) Here, the PERB complaint lists three separate
activities that are alleged to be protected under HEERA. Estes also presented evidence
of
other protected activities during the hearing.
a. 	The Protected Activities in the PERB Complaint
The PERB complaint enumerates three protected acts by Estes:
(3) 	On or about September 8, 201
[O]
and continuing until
about September 13, 201[0], [Estes] exercised rights guaranteed
by [HEERA] by attempting to assert his rights under the
collective bargaining agreement pertaining to whether a doctor's
note is required by the sick leave provision in Article 39[;]
(4) 	On or about September 23, 2010, [Estes] exercised rights
guaranteed by HEERA by filing a grievance against [the
University]
(5) 	On or about September 29, 2010, [Estes] exercised rights
guaranteed by HEERA by filing an unfair practice charge against
[the University]."
14
CONCLUSIONS OF LAW
To demonstrate a prima facie case that an employer discriminated or retaliated against
an employee in violation of HEERA section 3571(a), the charging party must show that:
(1) the employee exercised rights under HEERA; (2) the employer had knowledge of the
exercise of those rights; (3) the employer took adverse action against the employee; and (4) the
employer took the action because of the exercise of those rights. (Regents of the University of
California (Los Angeles) (2008) PERB Decision No. 1995-H, citing Novato Unified School
District (1982) PERB Decision No. 210 (Novato).)
1. 	Estes's Protected Activity
To establish first element of a prima facie case for retaliation the charging party must
demonstrate participation in specific acts protected by HEERA. (Regents of the University of
California (2006) PERB Decision No. 1843-H.) Here, the PERB complaint lists three separate
activities that are alleged to be protected under HEERA. Estes also presented evidence of
other protected activities during the hearing.
a. 	The Protected Activities in the PERB Complaint
The PERB complaint enumerates three protected acts by Estes:
(3) 	On or about September 8, 201[0] and continuing until
about September 13, 201[0], [Estes] exercised rights guaranteed
by [HEERA] by attempting to assert his rights under the
collective bargaining agreement pertaining to whether a doctor's
note is required by the sick leave provision in Article 39[;]
(4) 	On or about September 23, 2010, [Estes] exercised rights
guaranteed by HEERA by filing a grievance against [the
University ][;]
(5) 	On or about September 29, 2010, [Estes] exercised rights
guaranteed by HEERA by filing an unfair practice charge against
[the University]."
14

In its answer to the PERB complaint, the University admitted the allegations in all three
paragraphs. The admission
of
facts in a pleading "is a conclusive concession
of
the truth
of
a
matter which has the effect
of
removing it from the issues." (Pinewood Investors
v.
City
of
Oxnard (1982) 133 Cal.App.3d 1030, 1035, citing Walker
v.
Dorn (1966) 240 Cal.App.2d 118,
120; see also Blankman
v.
Vallejo et al. (1860)
15
Cal.638, 644.) Accordingly, the
University's admission is sufficient to establish that these three activities took place and that
each constitute protected activity under HEERA.
b. 	Estes's
Other
Alleged Protected Activities
During the hearing, Estes presented evidence
of
other allegedly protected acts.
Consideration
of
protected acts not described in the PERB complaint is appropriate where
those activities are related to the claims in the complaint and where the parties have had the
full opportunity to litigate all issues. (Lake Elsinore Unified School District (2012) PERB
Decision No. 2241.) These conditions are met in this case and it is therefore appropriate to
consider Estes's other allegations
of
protected activity.
i. 	Requesting and/or Bringing UPTE Representation to Meetings
An employee's request for union representation during meetings with management is
protected activity. (Los Angeles Unified School District (1991) PERB Decision No. 874, citing
California State University, Long Beach (1987) PERB Decision No. 641 	(CSU Long
Beach); California State University, Sacramento (1982) 	Decision No. 211 	In
case, Estes requested UPTE representation for multiple meetings 	University management.
example, in September through November 2009, Estes requested a meeting with his
supervisor (Swift), and UPTE to discuss a possible reclassification. 	March 2010, Estes
requested that the University participate in mediation along with an UPTE representative. 	In
15
In its answer to the PERB complaint, the University admitted the allegations in all three
paragraphs. The admission of facts in a pleading "is a conclusive concession of the truth of a
matter which has the effect of removing it from the issues." (Pinewood Investors v. City of
Oxnard (1982) 133 Cal.App.3d 1030, 1035, citing Walker v. Dorn (1966) 240 Cal.App.2d 118,
120; see also Blankman v. Vallejo et al. (1860) 15 Cal.638, 644.) Accordingly, the
University's admission is sufficient to establish that these three activities took place and that
each constitute protected activity under HEERA.
b. 	Estes's Other Alleged Protected Activities
During the hearing, Estes presented evidence of other allegedly protected acts.
Consideration of protected acts not described in the PERB complaint is appropriate where
those activities are related to the claims in the complaint and where the parties have had the
full opportunity to litigate all issues. (Lake Elsinore Unified School District (2012) PERB
Decision No. 2241.) These conditions are met in this case and it is therefore appropriate to
consider Estes's other allegations of protected activity.
i. 	Requesting and/or Bringing UPTE Representation to Meetings
An employee's request for union representation during meetings with management is
protected activity. (Los Angeles Unified School District (1991) PERB Decision No. 874, citing
California State University, Long Beach (1987) PERB Decision No. 641-H (CSU Long
Beach); California State University, Sacramento (1982) PERB Decision No. 211-H.) In	Beach
case, Estes requested UPTE representation for multiple meetings with University management.
For example, in September through November 2009, Estes requested a meeting with his
supervisor (Swift), and UPTE to discuss a possible reclassification. In March 2010, Estes
requested that the University participate in mediation along with an UPTE representative. In
15

addition, Estes brought UPTE representative Cross to meetings April 6, 20 l 0, and again
on
January 19, 2011. These activities are protected under HEERA.
ii. 	Participation in a September 2009 UPTE Demonstration
Estes also participated in an UPTE demonstration in September 2009 protesting
ongoing negotiations with the University. PERB has held that non-disruptive informational
picketing is protected under the collective bargaining statutes it enforces. (San Marcos Unified
School District (2003) PERB Decision No. 1508.) However, picketing for the purpose
of
causing significant disruptions to an employer's operations may not be protected. (City
of
San Jose (2010) PERB Decision No. 2141-M.) In this case, Estes did not provide sufficient
evidence to conclude whether the 2009 UPTE demonstration constituted lawful, non-disruptive
picketing. Accordingly, Estes has not met his burden
of
establishing that his participation in
the demonstration was protected.
iii. 	Estes's Other Grievance Activity
Estes filed two grievances in addition to the grievance identified in the PERB
complaint. Specifically, on March 26, 2010, Estes filed a grievance regarding the issuance
of
Written Warning #1. 	On September 7, 2010, Estes filed another grievance regarding the
issuance
of
Written Warning #2. Both grievances alleged that the warnings violated the
University/UPTE contract. Filing and pursuing grievances to enforce contractual rights is
protected 	(Trustees
of
the California State University (San Marcos) (2010) PERB
Decision No.
21	
(CSU San Marcos).)
The University's Knowledge of Estes's Protected Activity
The second element 	a prima facie case is establishing 	the respondent was aware
of
the protected activities. To establish this element, at least one of the individuals responsible
for taking the adverse action must be aware of the protected conduct. (Oakland Unified School
16
addition, Estes brought UPTE representative Cross to meetings April 6, 2010, and again on
January 19, 2011. These activities are protected under HEERA.
ii. 	Participation in a September 2009 UPTE Demonstration
Estes also participated in an UPTE demonstration in September 2009 protesting
ongoing negotiations with the University. PERB has held that non-disruptive informational
picketing is protected under the collective bargaining statutes it enforces. (San Marcos Unified
School District (2003) PERB Decision No. 1508.) However, picketing for the purpose of
causing significant disruptions to an employer's operations may not be protected. (City of
San Jose (2010) PERB Decision No. 2141-M.) In this case, Estes did not provide sufficient
evidence to conclude whether the 2009 UPTE demonstration constituted lawful, non-disruptive
picketing. Accordingly, Estes has not met his burden of establishing that his participation in
the demonstration was protected.
iii. 	Estes's Other Grievance Activity
Estes filed two grievances in addition to the grievance identified in the PERB
complaint. Specifically, on March 26, 2010, Estes filed a grievance regarding the issuance of
Written Warning #1. On September 7, 2010, Estes filed another grievance regarding the
issuance of Written Warning #2. Both grievances alleged that the warnings violated the
University/UPTE contract. Filing and pursuing grievances to enforce contractual rights is
protected activity. (Trustees of the California State University (San Marcos) (2010) PERB
Decision No. 2140-H (CSU San Marcos).)
2. 	The University's Knowledge of Estes's Protected Activity
The second element of a prima facie case is establishing that the respondent was aware
of the protected activities. To establish this element, at least one of the individuals responsible
for taking the adverse action must be aware of the protected conduct. (Oakland Unified School
16

District (2009) PERB Decision No. 2061 (Oakland USD); California State University
(San Francisco) (1986) PERB Decision No. 559-H.)
a.
	Knowledge
of
Activities Enumerated in the PERB Complaint
There was ample evidence that both
of
Estes' s supervisors were aware
of
the protected
activity described in the PERB complaint. Assistant Dean Rude and Swift were party to
Estes's communications to "assert his rights under the collective bargaining agreement" as
described in oara,zraoh three
of
the PERB comolaint. Likewise. both were aware
of
Estes' s
September 2010 grievance described in paragraph four
of
the PERB complaint. Finally, both
received a copy
of
the University's position statement filed in response to the unfair practice
charge described in paragraph five
of
the PERB complaint. These facts are sufficient to
demonstrate knowledge
of
the three protected activities described in the PERB complaint.
.l.	
._,	
.J,.	
..l 	.,
b. 	Knowledge of Estes's Other Protected Activities
There is also sufficient evidence to establish that Rude and Swift were aware
of
some
of
Estes's other protected activities. Estes's requests for UPTE representation at meetings
were made directly to either Swift or Rude. In addition, both were present in the April 6, 2010
and January 19, 2011 meetings with Estes and his UPTE representative. In addition, both
acknowledged their awareness ofEstes's September 7, 2010 grievance concerning Written
Warning #2. This is sufficient to demonstrate University knowledge of these incidents.
however, that the appropriate University representatives were
aware
of
Estes's March 26, 2010 grievance concerning Written Warning
#1.	
Rude, Swift, and
Whitmyer were 	employees involved 	drafting the Notice
of
Intent to Suspend and Notice
of
Intent to Dismiss. All three testified that they first learned of this grievance at the beginning
of the formal hearing in this case. No documentary evidence demonstrates that they received
any information regarding this grievance beforehand. Estes only testified that he delivered the
17
District (2009) PERB Decision No. 2061 (Oakland USD); California State University
(San Francisco) (1986) PERB Decision No. 559-H.)
a. 	Knowledge of Activities Enumerated in the PERB Complaint
There was ample evidence that both of Estes's supervisors were aware of the protected
activity described in the PERB complaint. Assistant Dean Rude and Swift were party to
Estes's communications to "assert his rights under the collective bargaining agreement" as
described in paragraph three of the PERB complaint. Likewise, both were aware of Estes's
September 2010 grievance described in paragraph four of the PERB complaint. Finally, both
received a copy of the University's position statement filed in response to the unfair practice
charge described in paragraph five of the PERB complaint. These facts are sufficient to
demonstrate knowledge of the three protected activities described in the PERB complaint.
b. 	Knowledge of Estes's Other Protected Activities
There is also sufficient evidence to establish that Rude and Swift were aware of some
of Estes's other protected activities. Estes's requests for UPTE representation at meetings
were made directly to either Swift or Rude. In addition, both were present in the April 6, 2010
and January 19, 2011 meetings with Estes and his UPTE representative. In addition, both
acknowledged their awareness of Estes's September 7, 2010 grievance concerning Written
Warning #2. This is sufficient to demonstrate University knowledge of these incidents.
Estes has not shown, however, that the appropriate University representatives were
aware of Estes's March 26, 2010 grievance concerning Written Warning #1. Rude, Swift, and
Whitmyer were the employees involved in drafting the Notice of Intent to Suspend and Notice
of Intent to Dismiss. All three testified that they first learned of this grievance at the beginning
of the formal hearing in this case. No documentary evidence demonstrates that they received
any information regarding this grievance beforehand. Estes only testified that he delivered the
17

grievance to Cross and later received a copy
of
a letter from University Human Resources
representative Alice Martinez, who was not involved in issuing either the Notice
ofintent
to
Suspend or the Notice
of
Intent to Dismiss. Estes has not met this burden
of
establishing that
individuals involved in his suspension or termination knew
of
the March 26, 2010 grievance.
(Oakland USD, supra, PERB Decision No. 2061.)3
3. 	Adverse Actions
The third element
of
a prima facie case is whether the respondent took adverse actions
against the charging party. In determining whether evidence
of
adverse action is established,
the Board uses an objective test and will not rely upon the subjective reactions
of
the
employee. (CSU San Marcos, supra, PERB Decision No. 2140-H.) The Board further
explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person
under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Id., citing Newark Unified School District (1991) PERB Decision No. 864; emphasis supplied;
footnote omitted.) In this case, the University admitted that Estes's suspension and termination
from employment constitute adverse employment actions. Thus, this element
of
the retaliation
analysis is satisfied. (See also City
of
Santa Monica (2011) PERB Decision No. 2211-M;
Los Angeles County Superior Court (2008) PERB Decision No. 1979-C
(LA
Superior Court).)
3 The letter states that David Cortez also received a copy
of
this letter. Rude, Swift, and
Whitmyer may have consulted with Cortez
in
drafting either the Notice to Suspend or the
Notice oflntent to Dismiss. However, the contents
of
the letter are hearsay and are insufficient
to establish a factual finding without independent corroboration. (PERB Reg. 32176
[Cal. Code Regs., tit. 8, sec. 31001, et seq.]; County
of
Riverside (2009) PERB Decision
No. 2090-M.) This matter is distinguishable from Fallbrook Public Utility District (2012)
PERB Decision No. 2229-M, where the Board held that a letter correctly addressed and
properly mailed is presumed to have been received. Here, no address was provided for Cortez
and no evidence was presented regarding how this letter was sent. This is not sufficient to
establish that Cortez received the letter.
18
grievance to Cross and later received a copy of a letter from University Human Resources
representative Alice Martinez, who was not involved in issuing either the Notice of Intent to
Suspend or the Notice of Intent to Dismiss. Estes has not met this burden of establishing that
individuals involved in his suspension or termination knew of the March 26, 2010 grievance.
(Oakland USD, supra, PERB Decision No. 2061.)
3. 	Adverse Actions
The third element of a prima facie case is whether the respondent took adverse actions
against the charging party. In determining whether evidence of adverse action is established,
the Board uses an objective test and will not rely upon the subjective reactions of the
employee. (CSU San Marcos, supra, PERB Decision No. 2140-H.) The Board further
explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Id., citing Newark Unified School District (1991) PERB Decision No. 864; emphasis supplied;
footnote omitted.) In this case, the University admitted that Estes's suspension and termination
from employment constitute adverse employment actions. Thus, this element of the retaliation
analysis is satisfied. (See also City of Santa Monica (2011) PERB Decision No. 2211-M;
Los Angeles County Superior Court (2008) PERB Decision No. 1979-C (LA Superior Court).)
The letter states that David Cortez also received a copy of this letter. Rude, Swift, and
Whitmyer may have consulted with Cortez in drafting either the Notice to Suspend or the
Notice of Intent to Dismiss. However, the contents of the letter are hearsay and are insufficient
to establish a factual finding without independent corroboration. (PERB Reg. 32176
[Cal. Code Regs., tit. 8, sec. 31001, et seq.]; County of Riverside (2009) PERB Decision
No. 2090-M.) This matter is distinguishable from Fallbrook Public Utility District (2012)
PERB Decision No. 2229-M, where the Board held that a letter correctly addressed and
properly mailed is presumed to have been received. Here, no address was provided for Cortez
and no evidence was presented regarding how this letter was sent. This is not sufficient to
establish that Cortez received the letter.
18

4. 	Nexus Between Protected Acts and Adverse Actions
The final element
of
a prima facie case is demonstrating a causal cor.nection, or nexus,
between Estes's protected activities and the University's decision to suspend and terminate his
employment. Because direct evidence
of
an employer's discriminatory intent is uncommon,
nexus is typically established circumstantially. However, where there is direct evidence that
the employer took adverse actions because
of
protected activities, no further evidence
of
nexus
is necessary to establish a prima facie case. (Regents
of
the University
of
California (Davis)
(2004) PERB Decision No. 1590-H (UC Davis).)
a.
	Direct Evidence of Nexus
In UC Davis, supra, PERB Decision No. 1590-H, the Board found direct evidence
of
nexus where the employer admitted to laying
off
employees due to employees' complaints that
were found to be protected under HEERA. In this case, the Notice
of
Intent to Suspend lists
Estes's discussions about the doctor's note issue from September 8 through 13, 2010 as part
of
the justification. As stated above, the University admits that those same discussions were
protected under HEERA. This constitutes direct evidence that Estes' s September 8-13, 2010
protected activity was at least one
of
the causes
of
the University's decision to suspend him.
The Notice oflntent to Suspend was incorporated into the Notice oflntent to Dismiss. Thus, it
is also true that Estes's termination was at least partially motivated by the same protected
activity. (Escondido Union Elementary School District (2009) 	Decision No. 2019
(Escondido UESD).)
b. 	Circumstantial Evidence 	Nexus
Any causal connection between 	adverse actions and Estes' s other protected
activities is less straightforward. Nexus connecting adverse actions to one protected act does
not necessary connote a similar connection to other protected acts. (See San Diego Community
19
4. 	Nexus Between Protected Acts and Adverse Actions
The final element of a prima facie case is demonstrating a causal connection, or nexus,
between Estes's protected activities and the University's decision to suspend and terminate his
employment. Because direct evidence of an employer's discriminatory intent is uncommon,
nexus is typically established circumstantially. However, where there is direct evidence that
the employer took adverse actions because of protected activities, no further evidence of nexus
is necessary to establish a prima facie case. (Regents of the University of California (Davis)
(2004) PERB Decision No. 1590-H (UC Davis).)
a. 	Direct Evidence of Nexus
In UC Davis, supra, PERB Decision No. 1590-H, the Board found direct evidence of
nexus where the employer admitted to laying off employees due to employees' complaints that
were found to be protected under HEERA. In this case, the Notice of Intent to Suspend lists
Estes's discussions about the doctor's note issue from September 8 through 13, 2010 as part of
the justification. As stated above, the University admits that those same discussions were
protected under HEERA. This constitutes direct evidence that Estes's September 8-13, 2010
protected activity was at least one of the causes of the University's decision to suspend him.
The Notice of Intent to Suspend was incorporated into the Notice of Intent to Dismiss. Thus, it
is also true that Estes's termination was at least partially motivated by the same protected
activity. (Escondido Union Elementary School District (2009) PERB Decision No. 2019
(Escondido UESD).)
b. 	Circumstantial Evidence of Nexus
Any causal connection between the adverse actions and Estes's other protected
activities is less straightforward. Nexus connecting adverse actions to one protected act does
not necessary connote a similar connection to other protected acts. (See San Diego Community
19

College District (1983) PERB Decision No. 368.) Here, there is no direct evidence that the
adverse actions in this case were motivated by Estes's other protected activity. Accordingly, it
is appropriate to consider circumstantial evidence.
i. 	Timing as Circumstantial Evidence of Nexus
The timing between adverse actions and protected conduct is an important
circumstantial factor when establishing the presence or absence of nexus. (The Regents of the
University of California (1998) PERB Decision No. 1255-H, citing North Sacramento School
District (1982) PERB Decision No. 264 (North Sacramento SD).) PERB has found that the
passage of around three and half months between protected activity and adverse actions to
support an inference of nexus. (Escondido UESD, supra, PERB Decision No. 2019.)
However, the passage of six months was more remote and less likely to support such an
inference. (Los Angeles Unified School District (1998) PERB Decision No. 1300.)
Here, all of Estes's protected activities occurred close in time to either the Notice of
Intent to Suspend, the Notice of Intent to Dismiss, or to the written warnings or counseling
memoranda. 4 Such timing supports finding a causal connection.
ii. 	Other Circumstantial Evidence of Nexus
Timing alone, however, is insufficient to demonstrate the necessary nexus. (Regents of
the University of California (1990) PERB Decision No. 858-H, citing Moreland Elementary
School District (1982) PERB Decision No. 227.) Further circumstantial evidence of a causal
connection is necessary. (CSU San Marcos, supra, PERB Decision No. 2140-H.)
Although the written warnings and counseling memoranda were not included as
adverse actions in the PERB complaint and it would be untimely to add them as additional
causes of action now (County of Riverside (2010) PERB Decision No. 2097-M), evidence of an
employer's actions from outside the statute of limitations period may be considered as
background evidence of the employer's motives. (Trustees of the California State University
(2008) PERB Decision No. 1970-H.)
20
College District (1983) PERB Decision No. 368.) Here, there is no direct evidence that the
adverse actions in this case were motivated by Estes's other protected activity. Accordingly, it
is appropriate to consider circumstantial evidence.
i. 	Timing as Circumstantial Evidence of Nexus
The timing between adverse actions and protected conduct is an important
circumstantial factor when establishing the presence or absence of nexus. (The Regents of the
University of California (1998) PERB Decision No. 1255-H, citing North Sacramento School
District (1982) PERB Decision No. 264 (North Sacramento SD).) PERB has found that the
passage of around three and half months between protected activity and adverse actions to
support an inference of nexus. (Escondido UESD, supra, PERB Decision No. 2019.)
However, the passage of six months was more remote and less likely to support such an
inference. (Los Angeles Unified School District (1998) PERB Decision No. 1300.)
Here, all of Estes's protected activities occurred close in time to either the Notice of
Intent to Suspend, the Notice of Intent to Dismiss, or to the written warnings or counseling
memoranda." Such timing supports finding a causal connection.
ii. 	Other Circumstantial Evidence of Nexus
Timing alone, however, is insufficient to demonstrate the necessary nexus. (Regents of
the University of California (1990) PERB Decision No. 858-H, citing Moreland Elementary
School District (1982) PERB Decision No. 227.) Further circumstantial evidence of a causal
connection is necessary. (CSU San Marcos, supra, PERB Decision No. 2140-H.)
*Although the written warnings and counseling memoranda were not included as
adverse actions in the PERB complaint and it would be untimely to add them as additional
causes of action now (County of Riverside (2010) PERB Decision No. 2097-M), evidence of an
employer's actions from outside the statute of limitations period may be considered as
background evidence of the employer's motives. (Trustees of the California State University
(2008) PERB Decision No. 1970-H.)
20

Facts establishing one or more of the following additional factors must also be present:
(1) the employer's disparate treatment of the employee (CSU San Marcos, supra, PERB
Decision No. 2140-H, citing State of California (Department of Transportation) (1984) PERB
Decision No. 459-S); (2) the employer's departure from established procedures and standards
when dealing with the employee (Id., citing Santa Clara Unified School District (1979) PERB
Decision No. 104); (3) the employer's inconsistent or contradictory justifications for its actions
(Id., citing State of California (Department of Parks and Recreation) (1983) PERB Decision
No. 328-S); (4) the employer's cursory investigation of the employee's misconduct (Id., citing
City of Torrance (2008) PERB Decision No. 1971-M; Coast Community College District
(2003) PERB Decision No. 1560); (5) the employer's failure to offer the employee justification
at the time it took action (Id., citing Oakland Unified School District (2003) PERB Decision
No. 1529) or the offering of exaggerated, vague, or ambiguous reasons (Id., citing McFarland
Unified School District (1990) PERB Decision No. 786); (6) employer animosity towards
union activists (Id., citing Jurupa Community Services District (2007) PERB Decision
No. 1920-M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or
(7) any other facts that might demonstrate the employer's unlawful motive. (Id., citing North
Sacramento SD, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
(a) 	Unfair Assignments and Training Schedule
Estes's primary theory to establish an unlawful motive in this case is that the University
assigned him job duties and training goals that no employee of his experience level could
accomplish. Essentially, Estes claims they set him up to fail. PERB has previously found
similar conduct to be evidence of unlawful motive. In Trustees of the California State
University, supra, PERB Decision No. 1970-H, PERB held that an employer's manipulation of
21
Facts establishing one or more of the following additional factors must also be present:
(1) the employer's disparate treatment of the employee (CSU San Marcos, supra, PERB
Decision No. 2140-H, citing State of California (Department of Transportation) (1984) PERB
Decision No. 459-S); (2) the employer's departure from established procedures and standards
when dealing with the employee (Id., citing Santa Clara Unified School District (1979) PERB
Decision No. 104); (3) the employer's inconsistent or contradictory justifications for its actions
(Id., citing State of California (Department of Parks and Recreation) (1983) PERB Decision
No. 328-S); (4) the employer's cursory investigation of the employee's misconduct (Id., citing
City of Torrance (2008) PERB Decision No. 1971-M; Coast Community College District
(2003) PERB Decision No. 1560); (5) the employer's failure to offer the employee justification
at the time it took action (Id., citing Oakland Unified School District (2003) PERB Decision
No. 1529) or the offering of exaggerated, vague, or ambiguous reasons (Id., citing Mcfarland
Unified School District (1990) PERB Decision No. 786); (6) employer animosity towards
union activists (Id., citing Jurupa Community Services District (2007) PERB Decision
No. 1920-M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or
(7) any other facts that might demonstrate the employer's unlawful motive. (Id., citing North
Sacramento SD, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
(a) Unfair Assignments and Training Schedule
Estes's primary theory to establish an unlawful motive in this case is that the University
assigned him job duties and training goals that no employee of his experience level could
accomplish. Essentially, Estes claims they set him up to fail. PERB has previously found
similar conduct to be evidence of unlawful motive. In Trustees of the California State
University, supra, PERB Decision No. 1970-H, PERB held that an employer's manipulation of
21

a job description did not have a legitimate purpose but was instead designed to disqualify an
individual who had filed grievances and unfair practice charges.
While Estes claims that the University assigned him new duties in response to his
protected activities, it appears that the converse is closer to the truth; it was the University's
assignment
of
new duties that caused Estes to seek assistance from UPTE. Both Rude and
Swift testified that there was a large increase in ITECH work starting in early 2009, prior to
any
of
Estes's protected activity. This testimony was corroborated by documentary evidence
in the record, including comments in Estes's performance evaluations during the relevant time-
frame.
	It
was these assignments that prompted Estes to speak with UPTE and Swift about
getting reclassified. Assignment changes that predate the protected activity normally do not
establish a nexus between that activity and adverse actions. (Trustees
of
the California State
University (2004) PERB Decision No. 1697-H.) Thus, there is insufficient evidence in the
record to show that the decision to assign Estes additional duties was due to his protected
activity.
Moreover, as to the type
of
job duties assigned, PERB has found that an employer's
direction
of
employee workload is generally a management prerogative. (Desert Sands Unified
School District (2010) PERB Decision No. 2092.) Accordingly, in Mammoth Unified School
District (1983) PERB Decision No. 371, PERB held that an employee did not engage in
protected activity by refusing to perform tasks assigned by his employer, even
if
the employee
believed the assignment was improper.5 PERB has consistently found no retaliation where
employees are disciplined for refusing to comply with a direct order. (San Bernardino County
Public Defender (2009) PERB Decision No. 2058-M; Los Angeles Unified School District
5 The Board was careful to distinguish this case from lawful union-organized work
stoppage or a refusal to perform duties that jeopardized the safety of the employee. No
evidence of either circumstance is present in this case.
22
a job description did not have a legitimate purpose but was instead designed to disqualify an
individual who had filed grievances and unfair practice charges.
While Estes claims that the University assigned him new duties in response to his
protected activities, it appears that the converse is closer to the truth; it was the University's
assignment of new duties that caused Estes to seek assistance from UPTE. Both Rude and
Swift testified that there was a large increase in ITECH work starting in early 2009, prior to
any of Estes's protected activity. This testimony was corroborated by documentary evidence
in the record, including comments in Estes's performance evaluations during the relevant time-
frame. It was these assignments that prompted Estes to speak with UPTE and Swift about
getting reclassified. Assignment changes that predate the protected activity normally do not
establish a nexus between that activity and adverse actions. (Trustees of the California State
University (2004) PERB Decision No. 1697-H.) Thus, there is insufficient evidence in the
record to show that the decision to assign Estes additional duties was due to his protected
activity.
Moreover, as to the type of job duties assigned, PERB has found that an employer's
direction of employee workload is generally a management prerogative. (Desert Sands Unified
School District (2010) PERB Decision No. 2092.) Accordingly, in Mammoth Unified School
District (1983) PERB Decision No. 371, PERB held that an employee did not engage in
protected activity by refusing to perform tasks assigned by his employer, even if the employee
believed the assignment was improper." PERB has consistently found no retaliation where
employees are disciplined for refusing to comply with a direct order. (San Bernardino County
Public Defender (2009) PERB Decision No. 2058-M; Los Angeles Unified School District
The Board was careful to distinguish this case from lawful union-organized work
stoppage or a refusal to perform duties that jeopardized the safety of the employee. No
evidence of either circumstance is present in this case.
22

(2005) PERB Decision No. 1791, citing The Regents of the University of California (1996)
PERB Decision No. 1158-H.)
Here, the record indicates that the vast majority of the additional assignments given to
Estes were consistent with the CRS job description as well as the University's expectations of
his performance as demonstrated through performance evaluations. For instance, the CRS job
description expressly lists among the "essential functions," updating calendars using the
PowerCampus software and testing both software and hardware in the computer lab. When
Swift gave Estes a calendaring assignment on November 5, 2010, in two separate e-mail
responses, Estes stated that he was unable to complete the task and complained that the task
was traditionally the job of the PA III position. In December 2010, Swift directed Estes to
update software in the computer lab. Estes again complained that the task was traditionally
done by someone in a PA position.
Likewise, the CRS job description states that the position assists with using online
meeting software, including downloading and posting course materials on the Internet. 	When
Swift assigned Estes to download recorded sessions from the WebEx meeting software and
post them on the Extension webpage, Estes complained multiple times that those duties were
previously performed by the PA II, PA III, or by Swift himself.
Estes appears to claim that it was improper for the University to assign him any new
duties that were not assigned to 	was hired in 2007. 	the
assignment of duties consistent with 	job description is evidence of unlawful motive. 	Estes
also argues that 	CRS job description 	the record is out of date, but Swift credibly testified
job description was not updated because the duties remained essentially the same.
Estes has not established that these assignments support his retaliation claim.
23
(2005) PERB Decision No. 1791, citing The Regents of the University of California (1996)
PERB Decision No. 1158-H.)
Here, the record indicates that the vast majority of the additional assignments given to
Estes were consistent with the CRS job description as well as the University's expectations of
his performance as demonstrated through performance evaluations. For instance, the CRS job
description expressly lists among the "essential functions," updating calendars using the
PowerCampus software and testing both software and hardware in the computer lab. When
Swift gave Estes a calendaring assignment on November 5, 2010, in two separate e-mail
responses, Estes stated that he was unable to complete the task and complained that the task
was traditionally the job of the PA III position. In December 2010, Swift directed Estes to
update software in the computer lab. Estes again complained that the task was traditionally
done by someone in a PA position.
Likewise, the CRS job description states that the position assists with using online
meeting software, including downloading and posting course materials on the Internet. When
Swift assigned Estes to download recorded sessions from the WebEx meeting software and
post them on the Extension webpage, Estes complained multiple times that those duties were
previously performed by the PA II, PA III, or by Swift himself.
Estes appears to claim that it was improper for the University to assign him any new
duties that were not assigned to him when he was hired in 2007. But it is unclear how the
assignment of duties consistent with his job description is evidence of unlawful motive. Estes
also argues that the CRS job description in the record is out of date, but Swift credibly testified
that the job description was not updated because the duties remained essentially the same.
Estes has not established that these assignments support his retaliation claim.
23

For similar reasons, the University's attempt to convert Estes's position from a part-
time CRS to a full-time PA II or III also does not indicate nexus. Rude and Swift felt that
ITECH needed a position with higher technical expertise and that they wanted Estes to have
the opportunity to fill that position. Both also testified that the University would not assign
Estes new job duties until he received adequate training. This testimony is supported
elsewhere in the record. In each
of
Estes's performance evaluations, Swift indicated that Estes
should continue to train and develop more expertise in the software applications used in
ITECH. In addition, after Estes left the University in January 2011, the University hired a
PA II at ITECH. Estes himself informed Swift that reclassification to a PA position was one
of
his goals.6 Based on these circumstances, Estes does not show that the University's decision to
reclassify the CRS position demonstrates any unlawful motive.
Regarding the actual training program outlined by the University, Estes testified that it
represented a "300 percent" increase in tasks assigned to him. Without commenting on the
accuracy
of
Estes' s calculation, it is unsurprising that the process for reclassifying the CRS
position to a PA position would involve learning to perform new tasks. There was conflicting
evidence in the record regarding whether the University's training regimen was feasible. 	Swift
testified that the training goals seemed achievable but Estes testified that the training program
was unrealistic.	
There is not enough evidence in the record to corroborate or discount either
witnesses's account. However, because it is Estes that carries the burden
of
establishing the
elements
of
a prima facie case, this evidence is not sufficient to support his retaliation claim.
It is worth noting that Estes' s individual attempts to seek a reclassification of his
position is not protected activity. (Fairfield-Suisun Unified School District (2005) PERB
Decision No. 1734.)
24
For similar reasons, the University's attempt to convert Estes's position from a part-
time CRS to a full-time PA II or III also does not indicate nexus. Rude and Swift felt that
ITECH needed a position with higher technical expertise and that they wanted Estes to have
the opportunity to fill that position. Both also testified that the University would not assign
Estes new job duties until he received adequate training. This testimony is supported
elsewhere in the record. In each of Estes's performance evaluations, Swift indicated that Estes
should continue to train and develop more expertise in the software applications used in
ITECH. In addition, after Estes left the University in January 2011, the University hired a
PA II at ITECH. Estes himself informed Swift that reclassification to a PA position was one of
his goals." Based on these circumstances, Estes does not show that the University's decision to
reclassify the CRS position demonstrates any unlawful motive.
Regarding the actual training program outlined by the University, Estes testified that it
represented a "300 percent" increase in tasks assigned to him. Without commenting on the
accuracy of Estes's calculation, it is unsurprising that the process for reclassifying the CRS
position to a PA position would involve learning to perform new tasks. There was conflicting
evidence in the record regarding whether the University's training regimen was feasible. Swift
testified that the training goals seemed achievable but Estes testified that the training program
was unrealistic. There is not enough evidence in the record to corroborate or discount either
witnesses's account. However, because it is Estes that carries the burden of establishing the
elements of a prima facie case, this evidence is not sufficient to support his retaliation claim.
' It is worth noting that Estes's individual attempts to seek a reclassification of his
position is not protected activity. (Fairfield-Suisun Unified School District (2005) PERB
Decision No. 1734.)
24

(b) 	Departure From Established Procedures
To establish that an employer departed from existing procedures, the charging party
must show what the procedure was and how the employer deviated from that process. ( Garden
Grove Unified School District (2009) PERB Decision No. 2086.)
On August 13, 2010, Swift permitted Estes to draft his response to Written Warning #2
during work hours. When Estes made the same request to respond to the September 22, 2010
Notice
of
Intent to Suspend, Swift denied the request. Estes has not shown that this difference
represents a deviation from existing policy because he has not shown that the University had a
consistent practice concerning responses to disciplinary notices. 	Swift testified that he was
unaware
of
any policy. He further testified that both sets
of
instructions could be consistent
with what he would normally do in that situation. Thus, PERB is unable to conclude that Swift
deviated from an established policy.
In addition, not all departures from existing practices are evidence
of
unlawful motive.
(Regents
of
the University
of
California (1987) PERB Decision No. 615-H.) In this case, Swift
testified that the University decided against allowing Estes to respond to the Notice
of
Intent to
Suspend during work hours because the University had become increasingly concerned with
the amount
of
time Estes spent drafting argumentative communications. In fact, those very
concerns were raised in the Notice oflntent to Suspend. After Swift denied Estes's request,
the University amended the Notice
of
Intent to Suspend, affording Estes additional time to
respond. Under these circumstances, Estes has not established that this conduct supports his
retaliation claim. 7
7 Although not addressed by either party, there was additional evidence of a departure
from the University's policy concerning self-evaluations. However, it appears from the
evidence that this was merely a record-keeping error and did not affect the issuance of the
adverse actions in this case or Estes's ability to respond to those actions. Deviations that are
25
(b) Departure From Established Procedures
To establish that an employer departed from existing procedures, the charging party
must show what the procedure was and how the employer deviated from that process. (Garden
Grove Unified School District (2009) PERB Decision No. 2086.)
On August 13, 2010, Swift permitted Estes to draft his response to Written Warning #2
during work hours. When Estes made the same request to respond to the September 22, 2010
Notice of Intent to Suspend, Swift denied the request. Estes has not shown that this difference
represents a deviation from existing policy because he has not shown that the University had a
consistent practice concerning responses to disciplinary notices. Swift testified that he was
unaware of any policy. He further testified that both sets of instructions could be consistent
with what he would normally do in that situation. Thus, PERB is unable to conclude that Swift
deviated from an established policy.
In addition, not all departures from existing practices are evidence of unlawful motive.
(Regents of the University of California (1987) PERB Decision No. 615-H.) In this case, Swift
testified that the University decided against allowing Estes to respond to the Notice of Intent to
Suspend during work hours because the University had become increasingly concerned with
the amount of time Estes spent drafting argumentative communications. In fact, those very
concerns were raised in the Notice of Intent to Suspend. After Swift denied Estes's request,
the University amended the Notice of Intent to Suspend, affording Estes additional time to
respond. Under these circumstances, Estes has not established that this conduct supports his
retaliation claim.'
Although not addressed by either party, there was additional evidence of a departure
from the University's policy concerning self-evaluations. However, it appears from the
evidence that this was merely a record-keeping error and did not affect the issuance of the
adverse actions in this case or Estes's ability to respond to those actions. Deviations that are
25

(c) 	Shifting and/or Exaggerated Justifications
Estes alleges that the University provided differing or exaggerated reasons for its
actions. An employer's shifting justifications for taking adverse action against an employee
may be evidence
of
nexus. (Trustees
of
the California State University (San Marcos) (2009)
PERB Decision No. 2070-H.) In contrast, PERB found no evidence ofretaliation where the
employer gave consistent justifications for its disciplinary actions and treated the employee at
issue in that case the same as it had other employees who did not engage in any protected
activities. (Alameda County Medical Center (2004) PERB Decision No. 1707-M.) Similarly,
PERB found no evidence
of
nexus where the employee failed to correct her behavior after
being given several opportunities to do so. (San Diego Unified School District (1991) PERB
Decision No. 885 (San Diego USD).)
In this case, the University consistently stated its concerns with Estes in multiple
counseling and disciplinary documents. On July 13, 2009, the University counseled Estes due
to conduct it believed was argumentative and disruptive to other ITECH staff. The University
also indicated that Estes challenged directives from his supervisor in inappropriate ways.
These same concerns were raised with Estes in subsequent documents culminating in the
January 4, 2011 Notice oflntent to Dismiss. In the University's assessment, Estes never
corrected his behavior. Under these circumstances, there is no evidence
of
shifting
justifications. (San Diego USD, supra, PERB Decision No. 885.)
Estes also claims evidence
of
nexus based on the University's failure to explain why its
request for doctor's verification during his September 2010 absences was "justified" as defined
in the University/UPTE contract. However, while the contract requires the University to have
a justification for requiring a doctor's note, nothing in the sections of the contract provided for
umelated to the adverse actions do not provide evidence of nexus. (Trustees
of
the California
State University (2009) PERB Decision No. 2038-H (Sonoma State Univ.).)	.
26
(c) 	Shifting and/or Exaggerated Justifications
Estes alleges that the University provided differing or exaggerated reasons for its
actions. An employer's shifting justifications for taking adverse action against an employee
may be evidence of nexus. (Trustees of the California State University (San Marcos) (2009)
PERB Decision No. 2070-H.) In contrast, PERB found no evidence of retaliation where the
employer gave consistent justifications for its disciplinary actions and treated the employee at
issue in that case the same as it had other employees who did not engage in any protected
activities. (Alameda County Medical Center (2004) PERB Decision No. 1707-M.) Similarly,
PERB found no evidence of nexus where the employee failed to correct her behavior after
being given several opportunities to do so. (San Diego Unified School District (1991) PERB
Decision No. 885 (San Diego USD).)
In this case, the University consistently stated its concerns with Estes in multiple
counseling and disciplinary documents. On July 13, 2009, the University counseled Estes due
to conduct it believed was argumentative and disruptive to other ITECH staff. The University
also indicated that Estes challenged directives from his supervisor in inappropriate ways.
These same concerns were raised with Estes in subsequent documents culminating in the
January 4, 2011 Notice of Intent to Dismiss. In the University's assessment, Estes never
corrected his behavior. Under these circumstances, there is no evidence of shifting
justifications. (San Diego USD, supra, PERB Decision No. 885.)
Estes also claims evidence of nexus based on the University's failure to explain why its
request for doctor's verification during his September 2010 absences was "justified" as defined
in the University/UPTE contract. However, while the contract requires the University to have
a justification for requiring a doctor's note, nothing in the sections of the contract provided for
unrelated to the adverse actions do not provide evidence of nexus. (Trustees of the California
State University (2009) PERB Decision No. 2038-H (Sonoma State Univ
26

the record requires the University to explain its justification to the employee at the time
of
the
request.
	An
employer's failure to provide an explanation for its conduct is only evidence
of
nexus in cases where the employer was required by law, policy, or past practice to do so. (City
of
Santa Monica, supra, PERB Decision No. 2211-M.) In addition, the University did
eventually explain that it felt verification was "justified" based on its observations
of
Estes'
s
recent sick leave usage. 	Other ITECH employees that had similar absence recordsprovided
verification for their absences. An employer's strict application
of
the contract is not evidence
of
retaliation. (State
of
California (Department
of
Personnel Administration) (1999) PERB
Decision No. 1313-S.)
(d) 	Cursory Investigation
Estes contends that the University's investigation prior to issuing Written Warning #2
was cursory. The failure to conduct a reasonable investigation prior to issuing discipline may
be evidence
of
nexus. (The Regents
of
the University
of
California, supra, PERB Decision
No. 1255~H.)
Estes first alleges that it was improper for Rude to rely primarily on Gilmer's
complaints as the basis for issuing Written Warning #2. This claim is factually untrue. 	Rude
referenced multiple issues including his belief that Estes refused to take direction from his
supervisor. Regarding Gilmer, Written Warning #2 focused not on Gilmer's complaints, but
on Estes' s own communications. In other words, regardless
of
the content
of
Gilmer' s
statements, Rude felt that Estes' s e-mail messages were improper and warranted discipline.
Estes also contends that it was improper for Rude to exclude Gilmer's e-mail messages
from the warning issued to Estes. This also does not demonstrate that the University engaged
in a cursory investigation because Written Warning #2 was clearly designed to address Estes's
conduct, not Gilmer' s. Rude testified that he separately met with Gilmer to discuss his own
27
the record requires the University to explain its justification to the employee at the time of the
request. An employer's failure to provide an explanation for its conduct is only evidence of
nexus in cases where the employer was required by law, policy, or past practice to do so. (City
of Santa Monica, supra, PERB Decision No. 2211-M.) In addition, the University did
eventually explain that it felt verification was "justified" based on its observations of Estes's
recent sick leave usage. Other ITECH employees that had similar absence records provided
verification for their absences. An employer's strict application of the contract is not evidence
of retaliation. (State of California (Department of Personnel Administration) (1999) PERB
Decision No. 1313-S.)
(d) Cursory Investigation
Estes contends that the University's investigation prior to issuing Written Warning #2
was cursory. The failure to conduct a reasonable investigation prior to issuing discipline may
be evidence of nexus. (The Regents of the University of California, supra, PERB Decision
No. 1255-H.)
Estes first alleges that it was improper for Rude to rely primarily on Gilmer's
complaints as the basis for issuing Written Warning #2. This claim is factually untrue. Rude
referenced multiple issues including his belief that Estes refused to take direction from his
supervisor. Regarding Gilmer, Written Warning #2 focused not on Gilmer's complaints, but
on Estes's own communications. In other words, regardless of the content of Gilmer's
statements, Rude felt that Estes's e-mail messages were improper and warranted discipline.
Estes also contends that it was improper for Rude to exclude Gilmer's e-mail messages
from the warning issued to Estes. This also does not demonstrate that the University engaged
in a cursory investigation because Written Warning #2 was clearly designed to address Estes's
conduct, not Gilmer's. Rude testified that he separately met with Gilmer to discuss his own
27

role in provoking the situation. Based on these facts, Estes does not demonstrate that the
University engaged in a cursory investigation.
(e) 	Animosity Towards Union Activists
Estes also alleges that the University's refusal to give Estes time to secure an attorney
representative for the January 19, 2011 meeting as well as its denial
of
his request to have
UPTE representation at "any meeting that might even have the merest whiff
of
being
disciplinary in nature" was evidence
of
animus towards unions. 8
Employees may have a protected right to meetings with their employers where: 	(a) the
employee 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. (Trustees
of
the California State University (2006) PERB Decision No. 1853-H,
citations omitted.)9 However, employees are not entitled to representation at meetings whose
sole purpose is to either correct work technique or present already-drafted discipline. (Ibid.)
There is also no protected right to have an attorney present during investigatory meetings with
their employer. (County
of
Riverside, supra, PERB Decision No. 2090-M.)
In this case, Estes's request far exceeds the bounds
of
employees' right to
representation and it would not have been unlawful for the University to deny such a request.
Moreover, Estes did not establish that the University ever actually denied Estes's request for
representation at any specific meeting. The record shows other instances where the University
apparently had no issue with Estes bringing UPTE representation to meetings. Under these
8 It would be untimely to add these issues as additional causes of action at this time.
(County
of
Riverside, supra, PERB Decision No. 2097-M.)
9 An employee may have an additional right to representation under meetings arising
out of "highly unusual circumstances" which are not present here and will therefore not be
discussed in this proposed decision.
28
role in provoking the situation. Based on these facts, Estes does not demonstrate that the
University engaged in a cursory investigation.
(e) Animosity Towards Union Activists
Estes also alleges that the University's refusal to give Estes time to secure an attorney
representative for the January 19, 2011 meeting as well as its denial of his request to have
UPTE representation at "any meeting that might even have the merest whiff of being
disciplinary in nature" was evidence of animus towards unions.
Employees may have a protected right to meetings with their employers where: (a) the
employee 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. (Trustees of the California State University (2006) PERB Decision No. 1853-H,
citations omitted.)" However, employees are not entitled to representation at meetings whose
sole purpose is to either correct work technique or present already-drafted discipline. (Ibid.)
There is also no protected right to have an attorney present during investigatory meetings with
their employer. (County of Riverside, supra, PERB Decision No. 2090-M.)
In this case, Estes's request far exceeds the bounds of employees' right to
representation and it would not have been unlawful for the University to deny such a request.
Moreover, Estes did not establish that the University ever actually denied Estes's request for
representation at any specific meeting. The record shows other instances where the University
apparently had no issue with Estes bringing UPTE representation to meetings. Under these
It would be untimely to add these issues as additional causes of action at this time.
(County of Riverside, supra, PERB Decision No. 2097-M.)
" An employee may have an additional right to representation under meetings arising
out of "highly unusual circumstances" which are not present here and will therefore not be
discussed in this proposed decision.
28

circumstances, there is simply insufficient evidence to conclude whether the University's
actions were evidence
of
animus.
Likewise, because HEERA does not protect Estes' s right to have an attorney represent
him in meetings with his supervisor, denial
of
this request does not demonstrate animus
towards unions or individuals that request union representation. Even
if
there were such a
right, it is unclear how Estes's request for private counsel in lieu
ofUPTE
representation
demonstrates animus towards union activists.
(f) 	Disparate Treatment
Estes also alleges that he was treated more harshly than other ITECH employees.
Evidence that an employee was treated differently from similarly situated employees may be
evidence
of
nexus. (Sonoma State Univ., supra, PERB Decision No. 2038-H.)
In this case, the record does not demonstrate disparate treatment. When Swift was
asked whether he disciplined other employees for using profanity or other inappropriate
communication in the workplace, he responded "absolutely." Rude also testified that he
counseled Gilmer for communications the University felt were inappropriate and that he found
counseling to be effective in Gilmer's case. Likewise, the University has formally disciplined
other employees for misconduct or behavioral issues regardless
of
union affiliation. In
addition, other ITECH employees who were absent as frequently as Estes were asked and did
provide verification for time off. 	explained above, discipline consistently applied to
similarly situated employees does not provide evidence
of
nexus. (Alameda County Medical
Center, supra, PERB Decision No. 1707-M.)
For 	these reasons, there is insufficient circumstantial evidence connecting the
adverse actions in this case to any of Estes' s protected activities. Therefore, only Estes' s
29
circumstances, there is simply insufficient evidence to conclude whether the University's
actions were evidence of animus.
Likewise, because HEERA does not protect Estes's right to have an attorney represent
him in meetings with his supervisor, denial of this request does not demonstrate animus
towards unions or individuals that request union representation. Even if there were such a
right, it is unclear how Estes's request for private counsel in lieu of UPTE representation
demonstrates animus towards union activists.
(f) 	Disparate Treatment
Estes also alleges that he was treated more harshly than other ITECH employees.
Evidence that an employee was treated differently from similarly situated employees may be
evidence of nexus. (Sonoma State Univsepra, PERB Decision No. 2038-H.)
In this case, the record does not demonstrate disparate treatment. When Swift was
asked whether he disciplined other employees for using profanity or other inappropriate
communication in the workplace, he responded "absolutely." Rude also testified that he
counseled Gilmer for communications the University felt were inappropriate and that he found
counseling to be effective in Gilmer's case. Likewise, the University has formally disciplined
other employees for misconduct or behavioral issues regardless of union affiliation. In
addition, other ITECH employees who were absent as frequently as Estes were asked and did
provide verification for time off. As explained above, discipline consistently applied to
similarly situated employees does not provide evidence of nexus. (Alameda County Medical
Center, supra, PERB Decision No. 1707-M.)
For all these reasons, there is insufficient circumstantial evidence connecting the
adverse actions in this case to any of Estes's protected activities. Therefore, only Estes's
29

protected September 8-13, 20
IO
conduct, which had direct evidence
of
nexus, will be discussed
further in this proposed decision.
5. 	The University's Justifications
If
the charging party can establish all the elements
of
a prima facie case, then the
burden shifts to the employer to prove by a preponderance
of
the evidence that it would have
taken the same course
of
action even
if
the charging party did not engage in any protected
activity. (Trustees
of
the California State University (2000) PERB Decision No. 1409-H,
citing Novato, supra, PERB Decision No. 210, Martori Bros. Dist.
v.
Agricultural Labor
Relations Bd. (1981) 29 Cal.3d 721.) In other words, the issue is whether the adverse action
would have occurred "but for" the protected acts. (County
of
Riverside, supra, PERB Decision
No. 2090-M.) However, the focus
of
this analysis "is not whether the employer had a lawful
reason for the action but whether it took the action for an unlawful reason." (Baker Valley
Unified School District (2008) PERB Decision No. 1993, citing McFarland Unified School
Dist.
v.
PERB (1991) 228 Cal.App.3d 166, 169.)
In LA Superior Court, supra, PERB Decision No. 1979-C, an employer issued a written
notice
of
suspension because
of
the employee's unauthorized use
of
a room for a union
meeting and because she sent multiple e-mail messages broadcast to hundreds
of
employees.
The Board found that the employee's use
of
the room was protected activity, but that her
e- 	concluded that the protected conduct was not the "true
motivation" for the suspension, given that the employee had been disciplined multiple times
her e-mail usage and 	witnesses credibly testified that that 	discipline was due to
employee's disregard for the e-mail policy. (Ibid.)
City
of
Santa Monica, supra, PERB Decision No. 2211-M, the Board held an
employee's long record of unacceptable performance was sufficient to demonstrate that he was
30
protected September 8-13, 2010 conduct, which had direct evidence of nexus, will be discussed
further in this proposed decision.
5. 	The University's Justifications
If the charging party can establish all the elements of a prima facie case, then the
burden shifts to the employer to prove by a preponderance of the evidence that it would have
taken the same course of action even if the charging party did not engage in any protected
activity. (Trustees of the California State University (2000) PERB Decision No. 1409-H,
citing Novato, supra, PERB Decision No. 210, Martori Bros. Dist. v. Agricultural Labor
Relations Bd. (1981) 29 Cal.3d 721.) In other words, the issue is whether the adverse action
would have occurred "but for" the protected acts. (County of Riverside, supra, PERB Decision
No. 2090-M.) However, the focus of this analysis "is not whether the employer had a lawful
reason for the action but whether it took the action for an unlawful reason." (Baker Valley
Unified School District (2008) PERB Decision No. 1993, citing Mcfarland Unified School
Dist. v. PERB (1991) 228 Cal.App.3d 166, 169.)
In LA Superior Court, supra, PERB Decision No. 1979-C, an employer issued a written
notice of suspension because of the employee's unauthorized use of a room for a union
meeting and because she sent multiple e-mail messages broadcast to hundreds of employees.
The Board found that the employee's use of the room was protected activity, but that her
e-mail usage was not. The Board concluded that the protected conduct was not the "tru
motivation" for the suspension, given that the employee had been disciplined multiple times
her e-mail usage and	for	for her e-mail usage and that witnesses credibly testified that that the di
employee's disregard for the e-mail policy. (Ibid.)
In City of Santa Monica, supra, PERB Decision No. 2211-M, the Board held an
employee's long record of unacceptable performance was sufficient to demonstrate that he was
30

not terminated for his grievance activity. (See also Martori Bros., supra, 29 Cal.3d at p. 730-
731
[notwithstanding employee's protected activity, there was "ample evidence" justifying
termination, such as threatening, obscene, and insubordinate statements].) In CSU Long
Beach, supra, PERB Decision No. 641-H, PERB found that an employee's deteriorating
relationship with his supervisor was justification for adverse actions.
In County
of
Riverside, supra, PERB Decision No. 2090-M, PERB found that the
disciplinary memoranda and notice
of
termination were hearsay and not sufficient in-and-of-
themselves to meet its burden to rebut a prima facie case for retaliation. The employer's other
evidence that the discipline was justified was discredited and therefore not persuasive. (Ibid.;
see also Escondido UESD, supra, PERB Decision No. 2019.) In Chula Vista Elementary
School District (2011) PERB Decision No. 2221, an employer's claimed justification for
adverse actions was found to be pretext where witnesses as well as performance evaluations
consistently indicated that the employee interacted well with others. (Ibid; see also Jurupa
Community Services District (2007) PERB Decision No. 1920-M.)
As stated above, the University admitted that its Notice
of
Intent to Suspend was at
least partially motivated by Estes's September 8-13, 2010, protected activity. However, it is
clear that the University had concerns with Estes's work performance long before the protected
activity and that those same concerns persisted long afterwards.
For
example,
in July 2009, Swift observed
that
the manner
in
which Estes challenged
his supervisor about following directives was inappropriate. These concerns were reiterated
in comments made by Swift in Estes's 2008-2009 performance evaluation issued on
September 15, 2009. On December 20, 2010, Estes sent an e-mail message to all ITECH staff
questioning whether Swift's directive about updating software was "realistic." The failure to
31
not terminated for his grievance activity. (See also Martori Bros., supra, 29 Cal.3d at p. 730-
731 [notwithstanding employee's protected activity, there was "ample evidence" justifying
termination, such as threatening, obscene, and insubordinate statements].) In CSU Long
Beach, supra, PERB Decision No. 641-H, PERB found that an employee's deteriorating
relationship with his supervisor was justification for adverse actions.
In County of Riverside, supra, PERB Decision No. 2090-M, PERB found that the
disciplinary memoranda and notice of termination were hearsay and not sufficient in-and-of-
themselves to meet its burden to rebut a prima facie case for retaliation. The employer's other
evidence that the discipline was justified was discredited and therefore not persuasive. (Ibid.;
see also Escondido UESD, supra, PERB Decision No. 2019.) In Chula Vista Elementary
School District (2011) PERB Decision No. 2221, an employer's claimed justification for
adverse actions was found to be pretext where witnesses as well as performance evaluations
consistently indicated that the employee interacted well with others. (Ibid; see also Jurupa
Community Services District (2007) PERB Decision No. 1920-M.)
As stated above, the University admitted that its Notice of Intent to Suspend was at
least partially motivated by Estes's September 8-13, 2010, protected activity. However, it is
clear that the University had concerns with Estes's work performance long before the protected
activity and that those same concerns persisted long afterwards.
For example, in July 2009, Swift observed that the manner in which Estes challenged
his supervisor about following directives was inappropriate. These concerns were reiterated
in comments made by Swift in Estes's 2008-2009 performance evaluation issued on
September 15, 2009. On December 20, 2010, Estes sent an e-mail message to all ITECH staff
questioning whether Swift's directive about updating software was "realistic." The failure to
31

correct behavior after multiple warnings has been found to be adequate justification for
discipline.	
(LA
Superior Court, supra, PERB Decision No. 1979-C.)
Unlike in County
of
Riverside, supra, PERB Decision No. 2090-M, the University's
characterization
of
Estes' s behavior was supported by personal accounts. For example, Swift
testified that he observed Estes engage in a "violent, emotional outburst" where he raised his
voice and used profanity. Swift observed at least two other "angry outbursts" from Estes.
These concerns were raised with Estes on February 25, 2010.
Around the same time, in February 2010, Estes continued sending e-mail messages
about a computer virus issue even after Swift told him that the issue was resolved and that no
further discussion was necessary. Swift informed Estes that it was inappropriate to e-mail his
personal complaints with other employees to all !TECH staff. Those issues were raised with
Estes in Written Warning #1, dated March 18, 2010.
Another issue that the University had was Estes's continued insistence that his
job
assignments were outside the scope
of
his job description. Swift and Rude unambiguously
communicated their belief that the assigned tasks were reasonable for a CRS. This issue first
arose in 2009, when Extension began seeing more WebEx production. The University
informed Estes that it considered his challenges to supervisorial authority to be unacceptable
on July 9, 2010, and August 11, 2010. Swift testified that he had many other discussions with
Estes over this issue.	
In
November
and
December 2010, Estes was still making the same
complaints.	
The
University's concerns were raised again in the January
2011 Notice
of
Intent
to Dismiss.
Estes acknowledges making these complaints but contends that he never actually
refused to perform any assigned tasks. However, the record does not demonstrate that Estes
performed the more advanced duties assigned satisfactorily. Moreover, this argument does not
32
correct behavior after multiple warnings has been found to be adequate justification for
discipline. (LA Superior Court, supra, PERB Decision No. 1979-C.)
Unlike in County of Riverside, supra, PERB Decision No. 2090-M, the University's
characterization of Estes's behavior was supported by personal accounts. For example, Swift
testified that he observed Estes engage in a "violent, emotional outburst" where he raised his
voice and used profanity. Swift observed at least two other "angry outbursts" from Estes.
These concerns were raised with Estes on February 25, 2010.
Around the same time, in February 2010, Estes continued sending e-mail messages
about a computer virus issue even after Swift told him that the issue was resolved and that no
further discussion was necessary. Swift informed Estes that it was inappropriate to e-mail his
personal complaints with other employees to all ITECH staff. Those issues were raised with
Estes in Written Warning #1, dated March 18, 2010.
Another issue that the University had was Estes's continued insistence that his job
assignments were outside the scope of his job description. Swift and Rude unambiguously
communicated their belief that the assigned tasks were reasonable for a CRS. This issue first
arose in 2009, when Extension began seeing more WebEx production. The University
informed Estes that it considered his challenges to supervisorial authority to be unacceptable
on July 9, 2010, and August 11, 2010. Swift testified that he had many other discussions with
Estes over this issue. In November and December 2010, Estes was still making the same
complaints. The University's concerns were raised again in the January 2011 Notice of Intent
to Dismiss.
Estes acknowledges making these complaints but contends that he never actually
refused to perform any assigned tasks. However, the record does not demonstrate that Estes
performed the more advanced duties assigned satisfactorily. Moreover, this argument does not
32

address the manner in which Estes conducted himself with this supervisors, which appears to
be the primary basis for the University's concerns. An employer's persistent dissatisfaction
with an employee's conduct may rebut the prima facie case for retaliation. (City
of
Santa
Monica, supra, PERB Decision No. 2211-M; CSU Long Beach, supra, PERB Decision
No. 641-H.)
Estes' s September 8-13, 2010 protected activity was one
of
two events described in the
September 22, 2010 Notice oflntent to Suspend. The document also discussed an incident on
September 7, 2010, where Estes continued to send e-mail about a laptop computer issue after
Swift informed him that the matter required no further attention. This was similar to a
complaint Swift raised with Estes in February 2010.
Based on the totality
of
this evidence, the record does not show that Estes' s
September 8-13, 2010, protected activity was the "true motivation" for either his suspension or
termination.	
(LA
Superior Court, supra, PERB Decision No. 1979-C.) The record shows that
the University had many concerns about Estes's ability to follow direct orders as well as the
manner in which he challenged his supervisors about assigned tasks. Those concerns were
present independent from Estes' s efforts to enforce his contractual rights.
It is important to note that the issue before PERB is not whether the University's
concerns were justified or whether Estes's suspension or termination were for "good cause."
(City
of
Santa Monica, supra, 	Decision No. 	11-M.) The sole issue 	this case is
whether the University retaliated against Estes 	engaging 	protected activities. On that
issue, it is concluded Estes's protected activity was not 	actual cause behind the
University's decision to suspend or terminate his employment.
33
address the manner in which Estes conducted himself with this supervisors, which appears to
be the primary basis for the University's concerns. An employer's persistent dissatisfaction
with an employee's conduct may rebut the prima facie case for retaliation. (City of Santa
Monica, supra, PERB Decision No. 2211-M; CSU Long Beach, supra, PERB Decision
No. 641-H.)
Estes's September 8-13, 2010 protected activity was one of two events described in the
September 22, 2010 Notice of Intent to Suspend. The document also discussed an incident on
September 7, 2010, where Estes continued to send e-mail about a laptop computer issue after
Swift informed him that the matter required no further attention. This was similar to a
complaint Swift raised with Estes in February 2010.
Based on the totality of this evidence, the record does not show that Estes's
September 8-13, 2010, protected activity was the "true motivation" for either his suspension or
termination. (LA Superior Court, supra, PERB Decision No. 1979-C.) The record shows that
the University had many concerns about Estes's ability to follow direct orders as well as the
manner in which he challenged his supervisors about assigned tasks. Those concerns were
present independent from Estes's efforts to enforce his contractual rights.
It is important to note that the issue before PERB is not whether the University's
concerns were justified or whether Estes's suspension or termination were for "good cause."
(City of Santa Monica, supra, PERB Decision No. 2211-M.) The sole issue in this case is
whether the University retaliated against Estes for engaging in protected activities. On that
issue, it is concluded Estes's protected activity was not the actual cause behind the
University's decision to suspend or terminate his employment.
33

PROPOSED ORDER
Jeffrey Estes has not established that the Regents
of
the University
of
California
(Irvine) retaliated against him for engaging in protected activities. Therefore, the
Public Employment Relations Board complaint and underlying unfair practice charge
in
LA-CE-1120-H are hereby DISMISSED.
Right to Appeal
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
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) 	22
(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.)
3 	-8231
FAX:
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" 	received by facsimile
transmission 	close
of
business together 	a Facsimile Transmission Cover Sheet
meets the requirements
of
	Regulation 	13 	provided the 	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) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090 and 32130.)
34
PROPOSED ORDER
Jeffrey Estes has not established that the Regents of the University of California
(Irvine) retaliated against him for engaging in protected activities. Therefore, the
Public Employment Relations Board complaint and underlying unfair practice charge in
LA-CE-1120-H are hereby DISMISSED.
Right to Appeal
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
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
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, $$ 32135, subd. (a) and 32130; see also Gov. Code,
$ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
ransmission 	lose of business together	t 	before the c 	with a Facsimile Transmission Cover Sheet
which 	Regulation 3213	meets the requirements of PERB 	5(d), 	filing party also	provided the
places the original, together with the required number of copies and proof of service, in the
U.S. mail. (Cal. Code Regs., tit. 8, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, $$ 32090 and 32130.)
34

Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit.
8, §§
32300, 32305, 32140,
and 32135, subd. (c).)
35
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $$ 32300, 32305, 32140,
and 32135, subd. (c).)
35