Hartnell Community College District (PERB 2567E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ERIC MOBERG,
Charging Party, 	Case No. SF-CE-2984-E
v. 	PERB Decision No. 2567
HARTNELL COMMUNITY COLLEGE 	June 12, 2018
DISTRICT,
Respondent.
Appearances: Eric Moberg, on his own behalf; Liebert, Cassidy Whitmore, by Eileen O-Hare-
Anderson, Attorney, for Hartnell Community College District.
Before Banks, Winslow, and Krantz, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions by Eric Moberg (Moberg) to the proposed decision (attached) of a
PERB administrative law judge (ALJ), which dismissed the complaint and Moberg’s unfair
practice charge against his former employer, Hartnell Community College District (Hartnell).
The complaint alleged that Hartnell interfered with Moberg’s right to union representation
when Hartnell’s Associate Vice President of Human Resources and Equal Employment
Opportunity Terri Pyer (Pyer) insisted on selecting which union representative would
accompany Moberg to an investigative meeting, and that Hartnell retaliated against Moberg for
his protected activity by terminating his employment and refusing to pay him for services
rendered, in violation of the Educational Employment Relations Act (EERA).1
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

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The ALJ dismissed both the interference and discrimination allegations for failure to
prove one or more of the elements of a prima facie case. He dismissed the interference
allegation, after determining there was no evidence to show that Pyer had “insisted that she
would choose [Moberg’s] representative for him but from a union to which [he] did not
belong,” as alleged in the complaint. Similarly, the ALJ found that Moberg had proved some of
the elements of retaliation under Novato Unified School District (1982) PERB Decision
No. 210 (Novato), including protected activity and adverse action, but dismissed the allegation
for failure of proof that the relevant decisionmaker, Hartnell’s President and Superintendent
Willard Lewallen (Lewallen), had any knowledge of Moberg’s protected activity when he
decided to terminate Moberg’s employment.2
Moberg has filed 12 exceptions, some with multiple sub-issues, and a supporting brief,
which dispute various findings and conclusions underlying the ALJ’s dismissal of the
complaint’s interference and retaliation allegations.3 Moberg argues that, contrary to the
proposed decision, he alleged sufficient facts to state a prima facie case that Hartnell interfered
with his right to union representation, and that such facts show unlawful motive in support of
the complaint’s separate retaliation allegation. Moberg also argues that the ALJ improperly
2 The ALJ also dismissed the complaint’s allegation that Hartnell retaliated against
Moberg by refusing, post-termination, to pay Moberg for all services rendered, as the record
established that Moberg had been paid in full for all work performed and that Hartnell’s
payroll officials had no knowledge of his protected activity. Moberg does not except to these
findings and conclusions and the issue is therefore not before the Board as part of this decision.
3 Moberg’s exception 9 also asserts that the ALJ improperly failed to rule on several
requests for administrative notice (one of which Moberg mischaracterizes as a request for
judicial notice) of documents which he contends would disprove Hartnell’s contention that his
educational credentials were fraudulent. Contrary to Moberg’s assertion, the ALJ considered
and denied each of these requests for reasons that are adequately set forth in the proposed
decision. Because we adopt the proposed decision’s reasoning and conclusions as to each of
these requests, the issue warrants no further consideration by the Board and we deny Moberg’s
exception as without merit.
2

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failed to consider other evidence supporting the retaliation allegation, including evidence that
Hartnell’s decisionmaker, Lewallen, knew of Moberg’s protected activity before terminating
Moberg’s employment, as well as other evidence demonstrating that Lewallen’s decision was
unlawfully motivated. Moberg also excepts to the ALJ’s rulings denying Moberg’s requests to
take administrative notice of various documents not otherwise included in the record.
The District argues that Moberg’s exceptions are procedurally defective and
substantively meritless, and urges the Board to adopt the proposed decision.
The Board has reviewed the hearing record and exhibits, the proposed decision,
Moberg’s exceptions and supporting brief, and Hartnell’s response thereto in light of
applicable law. Based on this review, we find that the ALJ’s findings of fact are adequately
supported by the record and his conclusions of law are well reasoned and in accordance with
applicable law. We adopt the proposed decision as the decision of the Board itself, subject to
the discussion below of Moberg’s exceptions.
DISCUSSION
Although the Board’s review of exceptions to a proposed decision is de novo, it need
not address arguments that have already been adequately addressed in the same case or that
would not affect the result. (Trustees of the California State University (2014) PERB Decision
No. 2400-H (CSU (Culwell)), pp. 2-3); Los Angeles Superior Court (2010) PERB Decision
No. 2112-I, pp. 4-5; Morgan Hill Unified School District (1995) PERB Decision No. 1120,
p. 3.) While Moberg excepts to several of the ALJ’s findings and conclusions,4 we limit our
4 Although the grounds for each exception are not always clearly identified, as required
by PERB Regulations, it appears that most of Moberg’s exceptions concern whether the ALJ
improperly ignored evidence of unlawful motive and/or whether Hartnell established as an
affirmative defense that it would have terminated Moberg regardless of his protected activity.
Because we conclude that Moberg’s exceptions regarding the interference and employer
3

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discussion to the two issues on which the complaint’s allegations were dismissed: whether the
ALJ properly dismissed the interference allegation for lack of proof that Pyer’s September 10,
2012 e-mail message would tend to cause even slight harm to protected rights and, with respect
to the retaliation allegation, whether Moberg failed to prove the element of employer
knowledge. We first address the interference issue and then turn to the issue of employer
knowledge.
Failure to Prove Interference with Protected Rights
To prevail in a case alleging interference, the charging party must show that the
employer engaged in conduct that tends to or does result in at least slight harm to rights
guaranteed by EERA and that, on balance, the resulting harm to protected rights outweighs any
legitimate business justification asserted by the employer. (Carlsbad Unified School District
(1979) PERB Decision No. 89 (Carlsbad), pp. 10-11.) Alternatively, where the employer’s
conduct is deemed inherently destructive of protected rights, it will be excused only on proof
that it was caused by circumstances beyond the employer’s control and that no alternative
course of action was available. (County of San Bernardino (Office of the Public Defender)
(2015) PERB Decision No. 2423-M, p. 36.) Regardless of whether the harm is deemed
inherently destructive or comparatively slight, the charging party must prove the elements of
the prima facie case by a preponderance of the evidence, and the respondent must come
forward with evidence of operational necessity or any other affirmative defense it may assert.
(Carlsbad, supra, PERB Decision No. 89, pp. 10-11; PERB Reg. 321785; Community Learning
knowledge issues are without merit, we find it unnecessary to determine whether the remainder
of Moberg’s exceptions and brief comply with the requirements of PERB Regulations.
5 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
4

Center Schools, Inc. (2017) PERB Order No. Ad-448, p. 9.) Additionally, an interference
violation may only be found where the pertinent statute provides the rights claimed by the
charging party. (Regents of the University of California (2006) PERB Decision No. 1804-H,
adopting warning letter at p. 5.)
In this case, the ALJ found that by copying the Faculty Association president on an
e-mail message directed at scheduling an investigative meeting, Pyer did not interfere with
Moberg’s right to choose his own union representative, because nothing in the message itself
or the surrounding circumstances indicated that Pyer was attempting to choose any particular
representative for Moberg. Rather, her message sought to ensure both that the interview was
not delayed any further, and that the Faculty Association was aware of the interview, so that it
could determine which of its agents would represent Moberg in the interview. While not
expressly stated as such, the ALJ reasoned that any effect Pyer’s e-mail message may have had
on Moberg’s choice of a representative posed only slight harm to protected rights and that,
under the circumstances, it was justified by Hartnell’s need to schedule an investigative
interview without further delay. Alternatively, the ALJ reasoned that under the circumstances,
Moberg had no protected right to choose a particular representative who was unavailable,
given that it is ultimately the exclusive representative’s prerogative, and not the employee’s, to
decide which of the union’s agents will accompany an employee to an investigative meeting
with management.
Exception 6 asserts that the ALJ’s findings and conclusions regarding Pyer’s
interference with Moberg’s right to union representation are contrary to the reasoning of our
prior decision in this case, Hartnell Community College District (2015) PERB Decision
5

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No. 2452.6 His supporting brief contends that Pyer’s “meddling” into Moberg’s choice of a
representative constituted interference with his protected rights and the “‘internal affairs’ of
Moberg’s relationship with his union,” as determined by the Board in Hartnell, supra, PERB
Decision No. 2452. We disagree.
In Hartnell, supra, PERB Decision No. 2452, we reviewed the dismissal of Moberg’s
amended unfair practice charge alleging interference and retaliation. On review of a dismissal
without hearing, the Board treats the charging party’s factual allegations as true (San Juan
Unified School District (1977) EERB7 Decision No. 12, p. 4; Golden Plains Unified School
District (2002) PERB Decision No. 1489, p. 6), and considers them in the light most favorable
to the charging party’s case (California School Employees Association & its Chapter 244
(Gutierrez) (2004) PERB Decision No. 1606, pp. 3-4). We may also consider information
provided by the respondent under certain circumstances (see PERB Reg. 32620, subd. (c)), but,
in the absence of a formal hearing and a developed evidentiary records, it is not the function of
the Board or its agents to judge the merits of the charging party’s dispute by resolving factual
disputes or making credibility determinations. (Golden Plains, supra, PERB Decision
No. 1489, p. 6; Eastside Union School District (1984) PERB Decision No. 466, pp. 6-7.)
Because the matter came before the Board on review of a dismissal/refusal to issue a
complaint, the focus of our review in Hartnell, supra, PERB Decision No. 2452 was whether
6 Exception 1 similarly argues that Moberg may rely on Pyer’s interference with
protected rights to support a finding of nexus in his separate retaliation allegation, and that the
ALJ thus erred by ignoring this evidence of nexus. Although exception 1 thus pertains to the
retaliation rather than interference allegation, it suffers from the same problem as exception 6,
in that it ignores the procedural posture of our prior decision and mischaracterizes its holdings,
by confusing factual allegations made at the pre-hearing stage of PERB proceedings with
factual findings resulting from a formal hearing and developed record.
7 Before January 1, 1978, PERB was known as the Educational Employment Relations
Board or EERB.
6

Moberg had alleged sufficient facts to state a prima facie case of interference and retaliation,
not whether Moberg had proved anything because, at that point in the proceedings, there had
been no formal hearing or opportunity for examination and cross-examination of witnesses
with personal knowledge of the matters in dispute. (PERB Regs. 32176; 32180.) Having
determined that Moberg had alleged sufficient facts to state a prima case of interference and
retaliation, we vacated the dismissal and directed the Office of the General Counsel to issue a
complaint in this matter. The Board’s prior decision in this matter made no factual findings
and left it to the Board’s hearing process for Moberg to prove the complaint allegations with
competent and admissible evidence. (PERB Regs. 32178.)
Whereas the complaint and Moberg’s unfair practice charge alleged that Pyer “insisted
that she would choose [Moberg’s] representative for him but from a union to which [he] did
not belong,” the record did not support this allegation. As noted in the proposed decision, after
several unsuccessful attempts to schedule an investigative meeting with Moberg, on
September 10, 2012, Pyer sent an e-mail message inquiring about Moberg’s availability. The
message was copied to Ann Wright (Wright), the president of the Faculty Association, which
was Moberg’s exclusive representative. On its face, Pyer’s message states that it was copied to
Wright to ensure that some union representative would be able to accompany Moberg at the
investigative meeting. As the president of the Faculty Association, Wright had the authority to
speak on the organization’s behalf and to decide which of its available representatives would
accompany Moberg to the investigative meeting. (County of San Bernardino (Office of the
Public Defender), (supra), PERB Decision No. 2423-M, p. 36; Jurupa Unified School District
(2012) PERB Decision No. 2283, p. 30.) Neither the message, nor any other evidence in the
7

record supports the complaint’s allegation that Pyer “insisted that she would choose
[Moberg’s] representative for him but from a union to which [he] did not belong.”
Moberg points to nothing in the proposed decision that contradicts the Board’s
reasoning in Hartnell, supra, PERB Decision No. 2452. As we noted there, under the system
of exclusive representation authorized by EERA, “once an employee organization is
recognized or certified as the exclusive representative of an appropriate unit . . . only that
employee organization may represent that unit [of employees] in their employment relations
with the public school employer.” (Id. at p. 34, citing EERA, §§ 3543, subd. (a), 3543.1,
subd. (a).) Once recognized or certified, the exclusive representative is solely responsible for
designating its agents, including without limitation those who will represent employees in
investigative interviews. (Capistrano Unified School District (2015) PERB Decision
No. 2440, pp. 13-14; Jurupa, supra, PERB Decision No. 2283, p. 30.) EERA does not oblige
an employer to accommodate an employee’s choice of a representative, either in scheduling or
conducting an investigative interview; provided that, where an employee’s preferred union
representative is available, an employer may not insist upon a different representative.
(Jurupa, supra, PERB Decision No. 2283, pp. 30-31.) Having attempted for more than two
weeks to schedule the investigative meeting with Moberg and his preferred representative, we
agree with the ALJ that Hartnell was not obligated to further delay the meeting, and that Pyer’s
message, appropriately, deferred to the Faculty Association’s president to determine which of
its agents would be available to represent Moberg. In short, Pyer’s message did not interfere
with Moberg’s right to choose a representative because, under the circumstances, any choice of
a representative was for the Faculty Association, and not Moberg, to make.
8

In light of the foregoing, we reject Moberg’s exceptions on this issue and affirm the
dismissal of the complaint’s interference allegation.
Failure to Prove Employer Knowledge
To prevail in a case alleging retaliation under Novato, supra, PERB Decision No. 89
and similar authorities, the charging party must prove that at least one of the respondent’s
agents responsible for taking adverse action knew of the charging party’s participation in
protected activity. (City & County of San Francisco (2011) PERB Decision No. 2207-M,
adopting dismissal letter p. 5.) The ALJ found that Lewallen was the ultimate decisionmaker
responsible for terminating Moberg’s employment, but that the record did not show that he
knew of Moberg’s protected activity.
Moberg’s exception 10 and his supporting brief assert that his September 12, 2012
e-mail message to Pyer was copied to Lewallen and “several Hartnell Board members,” that
this fact in turn proves Lewallen knew of Moberg’s protected activity before deciding to
terminate Moberg’s employment, and that the ALJ improperly ignored this evidence to dismiss
the complaint’s retaliation allegation. As support, Moberg cites to Respondent’s Exhibit G and
the Board’s prior decision in this matter. Respondent’s Exhibit G is a hardcopy of Moberg’s
September 12, 2012 e-mail message to Pyer in which Moberg invoked his right to union
representation and threatened to file a charge with PERB if Hartnell failed to respect his rights.
The message was addressed to Pyer and several other recipients, none of whom were identified
as Hartnell Board members.
Moreover, Lewallen is not listed among the recipients of the message, at least not on
the hardcopy entered into the record as Respondent’s Exhibit G. The name of last recipient
listed, which appears to be Hartnell’s Interim Vice President Stephanie Low, is followed by
9

ellipses, suggesting that other individuals may have also been copied on the message, but that
the list of names may have been truncated by the e-mail program for space considerations.
Despite this possibility, Lewallen’s name does not appear on the face of the document and
Moberg has cited to no other evidence in the record to establish employer knowledge. As
noted in the proposed decision, Lewallen testified at the hearing, but was not specifically asked
about Respondent’s Exhibit G or even, more generally, about his knowledge of any of
Moberg’s protected activity.
For the reasons discussed above regarding Moberg’s interference allegation, the
Board’s prior decision in this matter likewise fails to support Moberg’s argument that the ALJ
ignored competent and admissible evidence establishing that Lewallen knew of Moberg’s
protected activity. In summarizing the material allegations of Moberg’s third amended charge,
our decision in Hartnell, supra, PERB Decision No. 2452 referenced the September 12, 2012
message as follows:
Moberg also alleges that on September 12, 2012, he sent an email
message to Pyer and Hartnell President Willard Lewallen
(Lewallen) in which Moberg invoked his right to representation
under EERA section 3543, subdivision (a), and advised Pyer and
Lewallen that he would file an unfair practice charge with PERB
if Hartnell failed to respect Moberg's right to “union”
representation.
(Id. at p. 7.)
Among the issues on appeal in Hartnell, supra, PERB Decision No. 2452 as described
at page 17 of the decision, was whether Moberg’s message of September 12, 2012, which he
allegedly sent to Pyer and Lewallen, constituted evidence of protected activity for establishing
a prima facie case of retaliation, because the message invoked Moberg’s right to union
representation at the investigative meeting requested by Pyer, and because it advised Pyer and
10

Lewallen that Moberg would file an unfair practice charge with PERB for interference and
retaliation if Hartnell did not respect his rights under EERA. After reviewing PERB and
private-sector authorities, we concluded, at page 41 of the Decision, that “nothing in his charge
or the appeal suggests that [Moberg’s] threat to file a PERB charge was not made in good
faith,” and that, “[b]ecause use of the Board’s unfair practice process is itself protected,
Moberg [had] alleged sufficient facts to establish that his threat to file a PERB charge was
protected, regardless of the merits of his allegations.” (Ibid.)
Moberg’s reliance on Hartnell, supra, PERB Decision No. 2452 is also misplaced. As
discussed above, the Board’s Hartnell decision was not concerned with resolving factual
disputes or making credibility determinations, but with whether Moberg had alleged sufficient
facts to state a prima facie case of interference and/or retaliation. Indeed, we noted that “the
facts included in the charge and supporting materials provide little information about
[Moberg’s] email exchanges with Pyer and Lewallen,” though, for the purpose of reviewing
the dismissal of Moberg’s charge, we assumed the truth of Moberg’s allegations and
considered them in the light most favorable to his case. (Id. at pp. 19, 41.) However, in the
absence of a formal hearing and evidentiary record, we made no factual findings on this or any
other disputed factual issue in this case. While it is fair to say that, if supported by competent
and admissible evidence, Moberg’s allegations, as described in our prior Hartnell decision,
would likely satisfy Moberg’s burden of proving protected activity and employer knowledge
(PERB Reg. 32178), the ALJ found insufficient evidence in the record to prove Lewallen’s
knowledge of any of Moberg’s protected activity, and Moberg’s exceptions and supporting
brief likewise fail to identify any competent and admissible evidence requiring reversal on this
issue.
11

The ALJ also considered whether knowledge of Moberg’s protected activity could be
imputed to Lewallen under the subordinate bias liability doctrine, whereby a decisionmaker
relies on inaccurate or biased information provided by a subordinate employee who, in turn,
was improperly motivated by protected activity. (Anaheim Union High School District (2015)
PERB Decision No. 2434, adopting proposed decision, pp. 91-92; Santa Clara Valley Water
District (2013) PERB Decision No. 2349-M, p. 33.) 	However, the ALJ rejected this theory,
after determining that the only reason offered by Lewallen for Moberg’s termination was his
false educational credentials from Corllins University, and that the record did not establish that
the information Pyer provided to Lewallen on this subject was biased or inaccurate.
Moberg’s exception 3 asserts that the ALJ failed to consider evidence that Pyer
provided Lewallen with inaccurate and incomplete information before rejecting a subordinate
bias theory of liability. The exception includes no citation to the record and does not identify
any specific evidence that was neglected. PERB Regulation 32300 requires the party filing
exceptions to: (1) state the specific issues of procedure, fact, law or rationale to which each
exception is taken; (2) identify the page or part of the decision to which each exception is
taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each
exception. (PERB Reg. 32300, subd. (a)(l)-(4).) The language of the Regulation expressly
contemplates a statement of exceptions, a brief, or both a statement of exceptions and a
supporting brief, and in Regents of the University of California (San Francisco) (2014) PERB
Decision No. 2370-H, we clarified that while the required content of exceptions to a proposed
decision is clearly delineated by the Regulation, the form in which exceptions are presented may
vary. (Id. at p. 10.) So long as all of the information required by the Regulation is provided,
whether in a statement of exceptions, a brief, or a document that combines elements of the two,
12

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the Board should address the substance of the exception, and not summarily reject an issue,
simply because some of the required information appears under the heading “statement of
exceptions,” while other information appears under another heading, or in a separately-titled but
accompanying brief. (Ibid.) We therefore look to Moberg’s supporting brief to determine
whether, when read in conjunction with exception 3, he has sufficiently complied with the
Regulation’s requirements, so as to provide Hartnell and the Board adequate opportunity to
address the issues raised. (Temecula Valley Unified School District (1990) PERB Decision
No. 836, pp. 2-3; San Diego Community College District (1983) PERB Decision No. 368,
p. 13; see also Petaluma City Elementary School District/Joint Union High School District
(2016) PERB Decision No. 2485, p. 16.)8
Although not specifically identified as an exception, Moberg’s supporting brief appears
to dispute the ALJ’s finding that Lewallen was ultimately responsible for deciding to terminate
Moberg’s employment. Moberg’s brief argues that, while Pyer “was not the sole or ultimate
8 In addition to his supporting brief, some of Moberg’s other exceptions potentially
overlap in content with exception 3. Exception 5 reiterates Moberg’s contention before the
ALJ that Pyer’s investigation was cursory; exceptions 4 and 8 recite various facts from the
proposed decision purportedly demonstrating that Lewallen’s decision to terminate Moberg
was based on a cursory investigation and incomplete information; and, exception 8 disputes the
proposed decision’s characterization of Moberg’s transcript from Corllins University as
“fraudulent credentials,” by reiterating his argument before the ALJ that Hartnell “never
provided any evidence that the Corllins transcripts were ‘fraudulent.’” In this exception,
Moberg also asserts that it is undisputed that he was never provided an opportunity to explain,
augment, correct or deny any allegations against him before his termination. However, it
appears from context that each of these exceptions was intended to address issues of nexus
and/or Hartnell’s affirmative defense, by showing that its proffered reason for terminating
Moberg was pretextual. In any event, the Regulation states that an exception not specifically
urged shall be waived (PERB Reg. 32300, subd. (d)), and none of these exceptions refer to the
issue of employer knowledge or a subordinate bias liability theory. Without any clear
statement of the issues or the grounds for the exception or, at least some explanation of each
exception’s significance within the overall context of the case, we decline to consider each of
these other exceptions as supporting or supplementing Moberg’s exception 3 regarding the
subordinate bias liability doctrine.
13

decision-maker, she and Lewallen testified that Pyer had much input into and/or authority to
effectively recommend Moberg’s termination,” and that Pyer “tricked Lewallen into firing
Moberg.” 	However, these assertions are not supported by any citation to the record, and thus
fail to comply with the Regulation. Paragraph 15 of Moberg’s statement of facts similarly
asserts that “Interim Vice President Low dismissed Moberg . . . on September 24, 2012,” and
cites to Low’s letter of that date as support for this assertion. The exhibit cited indicates that
Low signed the letter informing Moberg of the decision to terminate Moberg’s employment. It
does not indicate that Low was herself responsible for that decision. It thus fails to support
Moberg’s factual assertion that Low was responsible, in whole or in part, for Moberg’s
termination or to identify any error of fact, law, procedure or rationale that would undermine
the ALJ’s rejection of subordinate bias liability in this case.
In light of the foregoing, we reject Moberg’s exceptions concerning employer
knowledge and/or the subordinate bias liability doctrine and affirm the dismissal of the
complaint’s retaliation allegation for failure of proof.
Conclusion
Because Moberg has raised no other issues of fact, law, procedure or rationale that
would alter the outcome, we adopt the proposed decision as the decision of the Board itself.
ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-2984-E are
hereby DISMISSED.
Members Winslow and Krantz joined in this Decision.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ERIC MOBERG,
Charging Party,
v.
HARTNELL COMMUNITY COLLEGE
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-2984-E
PROPOSED DECISION
(May 12, 2017)
Appearances: Eric Moberg, on his own behalf; Liebert Cassidy Whitmore by Eileen O’Hare-
Anderson, Attorney, for Hartnell Community College District.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
INTRODUCTION
This case proceeds from a remand from the Public Employment Relations Board
(PERB or Board) and alleges that a public school employer interfered with an employee’s right
to a union representative by insisting that it would choose a union representative for him and
by discriminating/retaliating against that employee by terminating his employment and not
paying him for work that he actually performed because of his exercise of protected activities
in violation of the Educational Employment Relations Act (EERA).1 The employer denies
committing any unfair practices.
PROCEDURAL HISTORY
On November 5, 2012, Eric Moberg (Moberg) filed an unfair practice charge (charge)
against the Hartnell Community College District (District) with PERB. On June 28, 2013,
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

July 30, 2013, and October 17, 2014, Moberg filed a first, second, and third amended charge,
respectively. On December 17, 2014, the PERB Office of General Counsel filed its Dismissal
Letter of the charges stating, in summary, that Moberg failed to establish a prima facie case for
interference of his protected activity and discrimination/retaliation because of his protected
activity.
On January 5, 2015, Moberg appealed the Dismissal Letter to the Board itself. After
briefing, and continued requests by Moberg to present new evidence, on September 4, 2015,
the Board issued its 59-page decision in Hartnell Community College District (2015) PERB
Decision No. 2452 (Hartnell CCD). In this decision, PERB reversed the Dismissal Letter and
remanded the matter to the PERB Office of General Counsel to issue a complaint that the
District discriminated against Moberg and interfered with his protected rights, in violation of
EERA section 3543, subdivision (a), in accordance with the Board’s decision.
On October 16, 2015, the PERB Office of General Counsel issued a complaint alleging
that the District violated EERA section 3543.5, subdivision (a), by stating that it would choose
a representative for Moberg, and by terminating his employment on September 24, 2012, and
by failing to pay him in October 2012 for time actually worked in the Fall 2012 semester
because of his statement that he would file a unfair practice charge with PERB if the District
failed to respect his right to union representation.
On November 5, 2015, the District filed its answer to the complaint, denying any
violation of EERA. An informal settlement conference was conducted on November 24, 2015,
but the matter was not resolved. Formal hearing on this matter was conducted on February 24,
25, and 26, 2016. The case was submitted for proposed decision on April 22, 2016, when post-
hearing briefs were submitted.
2

FINDINGS OF FACT
Jurisdiction
The District admits in its answer that Moberg is a public school employee within the
meaning of EERA section 3540.1, subdivision (j), and that the District is a public school
employer with the meaning of EERA section 3540.1, subdivision (k). Dr. Willard Lewallen
(Dr. Lewallen) became the President/Superintendent of Hartnell College/District in July 2012
and is responsible for the overall operation of the college. Dr. Lewallen reports to the Board of
Trustees as to the college’s educational programs, services, and its general operations. In
2012, the District employed approximately 220 part-time faculty members.
The Hartnell College Faculty Association (HCFA or Faculty Association) is the
exclusive representative of all full-time regular, contract certificated, and part-time employees,
which included Moberg while he was employed with the District as a part-time faculty
member. The District and the Association have entered into a Collective Bargaining
Agreement with a term which expired on June 30, 2012. For all times pertinent, Ann Wright,
Ph.D. (Wright) was the president of the Faculty Association.
Statutory, Regulatory, and Local District Authority
In pertinent part, Education Code section 87356, subdivision (a), provides:
The board of governors shall adopt regulations to establish and
maintain the minimum qualifications for service as a faculty
member teaching credit instruction, . . .
In pertinent part, sections of the California Code of Regulations, title 5, provide:
53406. Requirement for Accredited Degrees and Units;
Definition of Accredited Institution.
All degrees and units used to satisfy minimum qualifications shall
be from accredited institutions, unless otherwise specified in this
Article.
3

For purposes of this Subchapter, “accredited institution” shall
mean a postsecondary institution accredited by an accreditation
agency recognized by either the U.S. Department of Education or
the Council on Postsecondary Accreditation. It shall not mean an
institution “approved” by the California Department of Education
or by the California Council for Private Postsecondary and
Vocational Education.
Determination of equivalency of foreign degree shall be
according to district rule.
53410. Minimum Qualifications for Instructors of Credit
Courses, Counselors, and Librarians.
The minimum qualifications for service as a community college
faculty member teaching any credit course, . . . shall be satisfied
by meeting any one of the following requirements:
(a) Possession of a master’s degree, or equivalent foreign decree,
in the discipline of the faculty member’s assignment.
(b) Possession of a master’s degree, or equivalent foreign degree,
in a discipline reasonably related to the faculty member’s
assignment and possession of a bachelor’s degree, or
equivalent foreign degree, in the discipline of the faculty
member’s discipline.
The California Community Colleges Board of Governors issues a publication entitled,
“Minimum Qualifications for Faculty and Administrators in California Community Colleges,”
which sets forth the minimum qualifications for community college faculty employed within
the California Community College system. A Master’s degree is required to teach English at
the community colleges. Specifically, the minimum qualifications for the instruction of
English courses provides:
Master’s degree in English, literature, comparative literature, or
composition OR bachelor’s degree in any of the above AND
master’s degree in linguistics, [Teaching English as a Second
Language], speech, education with a specialization reading,
creative writing, or journalism OR the equivalent.
4

The publication also requires that an instructor possess a Master’s degree in Education
or the equivalent in order to teach Education courses at community college.
District Board Policy 5005 states in part:
It is the policy of the Governing Board of the Hartnell
Community College District to employ academic personnel of the
highest quality to help achieve the mission, goals, and objectives
of the District, with due consideration of its commitment to equal
employment opportunity.
In those disciplines in which academic degrees are customary,
candidates recommended to the Board will possess a Master’s
Degree or equivalent from an accredited institution in their
subject field. The minimum qualifications in disciplines not
normally requiring a Master’s Degree shall be a Bachelor’s
Degree or equivalent plus related occupational or professional
experience required by Title 5, Sections 53410-53413. The
process for determining minimum qualifications for faculty hire
will be jointly developed by the Superintendent/President and the
Academic Senate and submitted to the Governing Board for
approval. The process shall include the minimum requirements
set forth in Title 5, Sections 53430 (b) and (c).
In the event that a candidate for employment does not meet the
minimum qualifications set forth within the standards established
by the Board Approved Minimum Qualifications List, it shall be
incumbent upon that candidate to apply for an evaluation of
equivalency.
The Academic Senate shall establish minimum standards for
consideration of equivalency. These standards will be submitted
to the Governing Board for approval.
Moberg’s Application for Employment with the District
On or about December 22, 2009, Moberg submitted to the District, a cover letter and
Application for an Adjunct or Part-time Faculty Position as an English Instructor. In his
application, he claimed that he met the minimum qualifications for the position to teach
English and therefore did not have to submit an equivalency determination form. For his
educational experience, Moberg listed a Doctorate in Education in Higher Education and Adult
5

________________________
Learning from Walden University in Baltimore, Maryland in 2011;2 a Master’s of Arts Degree
in English from Corllins University in Santa Clara, California in 2001; a Master’s of Arts
Degree in Special Education from San Francisco State University (SFSU) in 1998; and a
Teaching Credential in Education from the University of California, Irvine (UC Irvine) in
1987.
In the employment history portion of the application, he did not list that he was
employed with the San Mateo County of Education (San Mateo COE), but his resume
indicated that he was employed with San Mateo COE between 1994 and 2008 as a head
teacher.
Moberg did not request an equivalency determination3 because he was already teaching
at Monterey Peninsula College (MPC) in November 2009 and had been assigned to teach a
developmental English class, which he thought was similar to the class he would teach with the
District. He also felt confident and competent to teach English because he taught high school
English classes for years and had written extensively.
Moberg interviewed with Faculty Consultant Heidi Ramirez (Ramirez) for the position
of English instructor in January 2010. Ramirez and then Vice-President of Academic Affairs
Susan Flannigan (Flannigan) subsequently hired him. He started teaching as a part-time
temporary adjunct faculty in February or March of 2010. Sometime during the summer of
2 Moberg was scheduled to complete this degree in 2011, but at the time of his
submission only completed half of the class requirements in 2009 and had not completed his
dissertation. Walden is an online school.
3 If Moberg had requested an equivalency determination, his qualifications would have
been reviewed by a committee comprised of two District academic administrators and two
faculty members.
6

________________________
2010, Moberg began teaching English in the District’s Academy of College Excellence
Program (ACE), which was designed to help at-risk students succeed in college.
Fall 2012 Semester
For the Fall 2012 semester, Moberg was assigned to teach two semester long courses:
Education 112–Community Survey Results, and English 101—Intermediate Composition and
Reading. Both of these courses are part of the ACE program.
The “Agreement for Temporary, Part-Time Hourly, Adjunct Faculty Assignment”
between Moberg and the District, stated in part:
5. Termination of Agreement Services: This agreement and the
services rendered under it may be subject to discontinuance if the
Instructor’s class or assignment is canceled before a term begins,
class enrollment is judged to be too low, it becomes necessary to
reassign the class or assignment to a probationary or tenured
faculty member; conditions arise which make maintaining the
class undesirable for the District, or the Instructor is terminated
by the Board of Trustees at its discretion pursuant to Education
Code Section 87665.[4] Decisions related to the above rest with
the Superintendent/President or designee. Instructor further
specifically acknowledges that the District may terminate
temporary employment without any obligation to provide a
statement of reasons, evidence of cause, or right to hearing.
(Emphasis added.)
Dr. Lewallen testified that the Board of Trustees had delegated to him the decision-
making authority to terminate District’s temporary employees. No testimony was provided to
the contrary.
4 Education Code section 87665 provides:
The governing board may terminate the employment of a
temporary employee at its discretion at the end of a day or week,
whichever is appropriate. The decision to terminate the
employment is not subject to judicial review except as to the time
of termination.
7

________________________
Pyer’s Attempt to Interview Moberg over an Employee Complaint
On August 22, 2012, Denyss Estrada (Estrada), an Administrative Assistant in the ACE
Program, sent an e-mail to Terri Pyer (Pyer), Associate Vice-President and Chief Human
Resources Officer, complaining that Moberg was harassing her by accusing her of taking his
California Academy of Arts and Humanities corporate stamp.5 One of Pyer’s many duties was
investigating employee complaints. She attempted to complete these interviews of involved
employees within three days of the filing of the complaint. She believed this timeline assisted
her to obtain employees’ recollection while it was fresh in their recollection and to, on
occasion, mediate a solution to the complaint.
On August 23, 2012, at around 6:31 p.m., Pyer e-mailed Moberg advising him of her
duties with respect to investigating complaints and that she wanted to meet with him in person
to discuss Estrada’s complaint. At this time, Moberg was already aware of the general
allegations of Estrada’s complaint. Pyer advised Moberg that her investigation was
confidential and asked him to contact her administrative assistant, Monica Massimo
(Massimo), to schedule an appointment the following week so they may have a conversation
that she expected to last about a half-hour. At 6:59 p.m. that same evening, Moberg sent Pyer
an e-mail informing her that since the complaint had become a formal investigation, he was
going to arrange for union representation and would get back to her.
Moberg e-mailed Pyer on August 27, 2012 at 11:08 a.m., advising her that he was still
arranging a time to meet that would be convenient for both he and his union representative. He
then requested information about his alleged misconduct. At 11:28 a.m. that same day, Pyer
5 This was the first time Pyer had any contact with Moberg.
8

________________________
e-mailed Moberg to inform him that she wanted to meet with him, but was not going to have a
discussion about it by e-mail.
Pyer again e-mailed Moberg on August 27, 2012, reminding him of her initial request
to meet on August 23, 2012. The next morning, August 28, 2012, Moberg e-mailed Pyer,
accusing her of rushing the meeting before he filed a report with the District’s Director of
Security reporting his missing corporate stamp and then accused the administration of
committing a crime and cover-up. In his e-mail, he also included citations to the “Reporting
by School Employees of Improper Governmental Activities Act.”6 Moberg added that he was
busy that week and was going to talk to Liz Estrella (Estrella) and Hermelinda Rocha (Rocha)
to determine their availability to be his union representatives. He suggested that if both were
too busy, he would need to look for someone else and suggested meeting over the weekend.
The weekend, however, was Labor Day weekend and Pyer was not available to meet at that
time.
On September 7, 2012, Massimo e-mailed Moberg attempting to schedule a meeting for
Pyer. Moberg responded that he was available on Mondays and Wednesdays and he would
check with his union representatives. He also wanted to know the agenda for the meeting.
Pyer’s Attempt to Interview Moberg on Wednesday September 12
On Monday, September 10, 2012, Massimo sent an e-mail to Moberg advising him that
Pyer wanted to discuss Estrada’s complaint and that Pyer was available that afternoon on
Wednesday until 3:00 p.m. Moberg responded to Massimo, while copying Pyer, Estrella, and
Rocha, that his union representative was on jury duty and that they would need to meet the
following week. Moberg inquired as to which regulation or policy he was accused of violating
6 Education Code section 44110, et seq.
9

________________________
by talking to Estrada and whether Pyer was aware of the whistleblower law. Moberg then
express his suspicion over Pyer’s failure to provide an agenda and her scheduling an interview
over an event which did not merit an investigation.
Pyer then checked with employees from the Human Resources department to determine
whether any employees had recently stated that they would be off work on jury duty. Pyer was
informed that no District employees had so indicated. Because of this, Pyer believed that
Moberg was attempting to delay the interview.
Pyer responded to Moberg by e-mail at 2:04 p.m. and copied Estrella, Rocha and
Faculty Association President Wright.7 In her e-mail, Pyer stated:
As you are on campus on Wednesday, I want us to meet on
Wednesday. Please arrange a time with [Massimo].
While every represented employee may request to have a union
[representative] at an investigatory interview under certain
conditions, there is no right to have a particular representative at
a meeting. I have copied Dr. Wright on this e[-]mail so that we
can make sure that someone will be able to attend a meeting with
you on Wednesday.
I made the request for a 30-minute meeting with you on
August 23, when I asked that it be scheduled within a week. You
replied that you did not have even 30 minutes to spare except
during the Labor Day weekend.
As I said before, any conversation you and I have will be in
conversation when we meet, not in e-mail.
On Wednesday, September 12, 2012, at approximately 10:53 a.m., Moberg sent an
e-mail responding to Pyer and copying Wright, Estrella, Rocha, Massimo and Interim Vice-
7 Pyer copied Estrella and Rocha as Moberg identified them as possible union
representatives. She copied Wright in order to ensure that the Faculty Association could
arrange representation for Moberg if his chosen representative was not available.
10

President of Academic Affairs and Accreditation Stephanie Low (Low) entitled, “What is your
preference?” Among other things, the e-mail stated in pertinent part:
Would you prefer to respect my statutory rights under the
Educational Employment Relations Act to ‘join, and participate
in the activities of employee organizations of [my] own choosing.
. . [emphasis added.]
or
Would you prefer that I file an Unfair Practice Charge with the
Public Employment Relations Board for interference
(Government Code section 3543(a)) and retaliation (Government
Code section 3543.5)?
(Insertions included in quotation.)
Pyer’s Review of Moberg’s Personnel File
On September 10, 2012, as Pyer was having difficulty scheduling a meeting with
Moberg, she thought she might make more progress in scheduling an interview if she would
call him directly by telephone. After 5:00 p.m., Pyer reviewed Moberg’s personnel file
looking for his telephone number. While she was looking for a telephone number, a glossy or
shiny document caught her attention. The document turned out to be Moberg’s transcript from
Corllins University. The transcript appeared to be very different from the thousands of
transcripts which she had reviewed in the past. She also reviewed Moberg’s resume and
application, which gave her concern.
The “Part-Time Faculty Minimum Qualifications Disciplines Requiring a Master’s
Degree” form that Pyer found in Moberg’s personnel file indicated that the basis for Moberg’s
qualification to teach English was a Master’s of Art degree in English awarded June 22, 2007
from Corllins University. Pyer saw that former Vice-President Flannigan and Faculty
11

________________________
Consultant Ramirez signed this form in March 2010, but the form did not indicate that they
believed Moberg met the minimum qualification to teach the English courses.
With respect to the Corllins University transcript, Pyer noted that there was no address,
telephone number, name of the registrar with a raised seal, or any indication that the transcript
was from an accredited university. A normal transcript was usually on security paper with
some indicia of authenticity. Pyer believed the course numbering for the semesters was
strange because it showed five consecutive courses in completely different disciplines arranged
sequentially for the first semester (e.g., 6526 Human Diversities, 6527 Communications, 6528
Political Science, 6529 Human Psychology, and 6240 Philosophy.) Additionally, the transcript
purported to be an official transcript awarding a Master’s degree in English, but there were few
English classes listed on the transcript.
Pyer then conducted an internet search of Corllins University and determined that it
was, in her opinion, a “diploma mill”—an institution that exists only to provide
transcripts/degrees without requiring study, attending classes, or completing anything in
particular that would ordinarily indicate someone had achieved something that an accredited
college or university would require before awarding a degree. In short, she did not believe
Corllins University was an accredited university.
Moberg admitted that Corllins University was an online school which sent its
correspondence from Dubai, United Arab Emirates.8 Moberg described Corllins University as
“alternative education” where he obtained an “experiential” degree. Moberg admitted he paid
8 It is unknown from the evidentiary record whether there is an actual physical location
of Corllins University.
12

________________________
a fee.9 The courses listed under the first, second, and third semesters included some of the
44 units he had taken from UC Irvine and other institutions and the publications he had written.
He also admitted that he did not take or attend any courses from Corllins. The transcript
purportedly awarded Moberg with a Master’s of Arts degree in June 2007.
While looking through Moberg’s personnel file, Pyer also noted that Moberg listed that
he attended or obtained degrees from Glendale University and Prescott University. Pyer
believed that these two universities were also unaccredited. Pyer also noted that while Moberg
included his prior employment as the head teacher with the San Mateo COE on his resume, he
failed to include this information in the employment history section of his application. She
was concerned that he did this to avoid having to explain why he had been separated from San
Mateo COE.
Pyer’s Discussion with Dr. Lewallen
On September 10, 2012, after reviewing Moberg’s personnel file, Pyer stopped by
Dr. Lewallen’s office as she was familiar with his pattern of working after 5:00 p.m. She
voiced her concerns that she believed the District had a serious problem in that it was
employing an adjunct instructor who did not appear to have the minimum qualifications
necessary to teach the subjects he was teaching which then put the College’s students’ credits
and apportionment funding, as well as the integrity of the Human Resources office, in
jeopardy. Pyer mentioned that the faculty member did not fill out his application for
employment completely as he left off one of his public school employer’s and concealed his
reason(s) for leaving employment.
9 It is unknown how Corllins University evaluated Moberg before conferring a Master’s
degree in English to him. It seems some of the grades attributed to Moberg on the Corllins
University transcript were lower than the grades Moberg received from those courses that he
took at SFSU.
13

________________________
After discussing her concerns with Dr. Lewallen, Pyer conducted some internet
searches as to whether some of the learning institutions which Moberg listed as having
obtained degrees (Corllins University, as well as possibly Glendale University and Prescott
University), were included on a database published by the State of Oregon as to which
institutions’ degrees were not to be considered valid. She did not contact anyone at San Mateo
COE to determine Moberg’s employment status at the time that he left his employment.
Pyer’s September 11, 2012 E-mail to Dr. Lewallen
After conducting further research into Moberg’s personnel file, Pyer e-mailed
Dr. Lewallen at 5:55 p.m. on September 11, 2012. The September 11, 2012 e-mail was
lengthy and included an electronic copy of the Corllins University transcript. Pyer stated that
she first starting having trouble with Moberg responding to her request to meet with him to
discuss an employee’s complaint that Moberg had accused her of stealing his corporate stamp.
Pyer stated that as she was unable to set up this meeting since August 23, 2012, she looked in
his personnel file to determine if there was a better way to attempt to schedule this meeting.
When Pyer reviewed his personnel file, she discovered “false documentation.” Pyer continued
the e-mail and stated:
. . . Mr. Moberg currently teaches two classes for us that he is
apparently unqualified to teach.[10] That is, the documentation
that he provided to us at the time of his application in
10 Pyer’s reasoning for this assertion was Moberg did not have a Master’s degree in
English from a post-secondary institution recognized by the United States Department of
Education or the Council on Post-Secondary Accreditation. Although Moberg had a Master’s
degree in Special Education from SFSU, that degree did not specifically qualify him to teach
the Education course which he taught, although it would have qualified him to teach in the
Disabled Student Program and Services. Pyer admitted that Moberg may be able to qualify to
teach the Education course if he sought an equivalency determination from the
District/Academic Senate. Pyer did not investigate whether other ACE faculty who taught
Education courses also had a Master’s degree in Education as she was unfamiliar whether this
was an issue.
14

________________________
December 2009 does not reveal that he has the minimum
qualifications to teach the courses he is assigned (despite the fact
that our former [Vice-President] of Academic Affairs signed a
document stating that he did not meet minimum qualifications).
He is assigned to teach two semester-long courses:
--EDU-112-Community Survey Results (meets MW, 7-9:05).
--ENG-101-Intermediate Composition & Reading (meets MW,
5:30-6:45).
These are both in the ACE program.
His application to begin work as an English adjunct was dated
December 22, 2009. On that application, he indicated that he had
never been dismissed from employment, and had never resigned
to avoid being dismissed. His minimum qualifications form to
teach English was signed by one faculty member and Suzanne
Flannigan, the former [Vice-President]. They hired him to teach
English apparently on the strength of his application and the
transcripts he submitted. We have transcripts from these
institutions:
BA, [H]istory – CSU Hayward
MA, [S]pecial [E]ducation – San Francisco [State University]
MA, English – Corllins University (PDF attached)
([H]is file also contains transcripts showing that he has taken
various education classes from Chapman, UC Irvine, and Notre
Dame de Namur, and that he has teaching credentials in special
education and “cross cultural language and academic
development,” neither of which are relevant here.)
On his application, Eric listed Corllins University as being in
Santa Clara. I see several web sites of individuals who also list it
in Santa Clara. But, this appears to be not true. In fact, it doesn’t
appear that Corllins exists anywhere except online. The
transcript from Corllins looks entirely UNlike real transcripts in
that it contains no address, no telephone numbers, no names of
any responsible parties of the institution (like registrar, president,
[Vice-President] of instruction, nothing), no indication of his
previous education, no notation of his social security number, no
FERPA[11] disclaimers, and no special security paper to guard
against fraud. Moreover, the course number system is ridiculous
(Political [S]cience is 6528 while [H]uman [P]sychology is 6529
11 Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g; 34 CFR Part 99.
15

and [P]hilosophy is 6530. My favorite is “Syllabuses &
Materials”), and there [is] no attempt to even list very many
English classes.
A quick internet search of the name of the institution reveals that
this is a diploma mill. It is not, and has never been, regionally
accredited. At least one website contains allegations that degrees
are returned to applicants within two weeks of the applicants’
payment of a fee. One of the sites goes directly to something
called “Instant Degrees.” It’s shocking.
I do notice that his e-mail signature line usually contains his
name thus:
“Eric Moberg, M.F.A, Ph.D.”
We do not have transcripts supporting either of these degrees.
Now, we wouldn’t necessarily have them if they weren’t
necessary to qualify him for his teaching assignment (Unlike full-
timers, adjuncts do not move on a salary scale with additional
degrees and units earned). At the time of his application, he
indicated that he was scheduled to graduate from Walden
University with an Ed.D. in 2011. There is no mention of a Ph.D.
program, and he has not submitted additional information related
to this Walden University degree.
So, we do have an indication that he knowingly provided a false
degree, though it is on us that we accepted it (when it is so
obviously bogus—a scan is attached. This piece of glossy paper
isn’t even folded, and we have no idea how it was delivered to
[Hartnell]. If transcripts are mailed to [Human Resources], we
file the envelope as well as the transcript. We have no envelope,
which means that it was delivered to a different person or office
and brought over to us. I also see that he was placed in a
classroom on [January] 23, 2010, he didn’t sign a contract for this
work until [February] 26, and his [minimum qualifications]
paperwork wasn’t signed until early March. [Human Resources]
didn’t get this paperwork until March 9, well into the semester.)
[¶ . . . ¶]
Since I will be away starting Thursday and through next week, on
a confidential basis, I have alerted Nora Torres in my office, of
this situation. She is the person who would be able to help get a
sub in his classes ASAP if necessary.
16

________________________
Between September 13 and 24, 2012, during a period of time that Pyer was on vacation,
Dr. Lewallen directed that the District move forward with terminating Moberg based upon his
fraudulent credentials (Corllins University transcript and degree) and his accompanying failure
to meet the minimum qualifications required to instruct the District’s students. Dr. Lewallen
was aware of the regulations governing the earning of credits by students and funding for the
District that required that courses must be taught by faculty who met the minimum
qualifications to teach their assigned courses. Fortunately, as a result of Moberg’s employment
with the District, the District did not subsequently lose any funding and students did not lose
credit for the courses taught by Moberg.
Notification of Termination and the District Board’s Ratification of the Decision
On or about September 24, 2012, Moberg was served with written notification from
Interim Vice-President of Academic Affairs and Accreditation Stephanie Low that his
employment was to be terminated on the close of business that day. The notice did not provide
the reasons for the separation. Dr. Lewallen wrote the majority of the termination letter and
directed Low to sign the letter and deliver it to Moberg the next time he was on campus. Low
did not play a decision-making role regarding the termination of Moberg.
On October 2, 2012, Pyer prepared a memo setting forth the reasons why Moberg was
terminated.12 On January 15, 2013, the District Board ratified the release of temporary faculty
member Moberg effective September 24, 2012.
Dr. Lewallen did not testify, one way or another, whether he was aware of Moberg’s
request for union representation or threat to file an unfair practice charge, as he was not
questioned about that subject at the hearing.
12 This memo carries less relevance, having been prepared after Dr. Lewallen’s
decision.
17

Moberg’s Final Compensation
In early October 2012, Pyer found out that Moberg complained about not being paid.
Pyer asked Human Resources Technician Nora Torres (Torres) to review all of Moberg’s
contracts and pay records to make sure he was paid for all of his work through and including
September 24, 2012. She asked Torres to work with Payroll Supervisor Dora Sanchez
(Sanchez) in accomplishing this task. Sanchez does not report to Pyer.
During the course of the Torres/Sanchez review, it was discovered that Moberg’s time
sheets for his two-week intercession class from August 11 to 16, 2012 were found on
someone’s desk and had not been entered into the automated payroll system. This represented
nine lecture hours and fourteen laboratory hours. The Payroll History listing depicted
Moberg’s compensation being directly deposited into his account was as follows:
August 31, 2012 	Net Pay of 	$650.45
September 28, 2012 	Net Pay of 	$1,231.34
On September 27, 2012, Torres notified Sanchez to place a stop on Moberg’s direct
deposit for October and to hold his check until she heard from Low, Rosa Cabrera (Cabrera),
or herself to release the payment. Pyer was copied on this e-mail. On September 28, 2012,
Low sent an e-mail to Moberg, confirming her understanding that he would be on campus next
week and asked that he return his attendance records, course materials, and keys. She advised
him that his last check would be held until the items were delivered. Moberg, however, did not
receive the e-mail. Low resent the e-mail on October 3, 2012. In the meantime, Moberg
picked up his personal belongings on October 2, 2012 and returned the items requested. On
October 4, 2012, Sanchez called and asked Moberg for his address to send his final check.
Moberg provided Sanchez with his address. On October 5, 2012, Sanchez mailed a physical
check representing his net pay in the amount of $1,617.94 to him, which he received.
18

During the third day of hearing, the ALJ queried Moberg as to the specific amount that
he had not been paid for time actually worked during the Fall 2012 semester. Moberg admitted
that he received the physical October 5, 2012 check mailed from Sanchez for $1,617.24 on
October 19, 2012, and does not dispute this check. Moberg contended that he did not receive
the September 28, 2012 check for $1,231.34 net pay ($1,576.27 gross pay) which should have
been directly deposited into his account and was allegedly not. After reviewing his own direct
deposit records, he determined that he received the September 28, 2012 check by direct deposit
after all. Therefore, in light of these facts and admissions, all money due and owed to Moberg
had been paid in full.
Sanchez was unaware that Moberg ever requested union representation or threatened to
file an unfair practice against the District. As Torres did not testify, it was not demonstrated
that she was ever aware that Moberg ever requested union representation or threatened to file
an unfair practice against the District.
ISSUES
1. 	Should the complaint be amended as requested by Moberg to add further
incidents of protected activity?
2. 	Should any of Moberg’s requests to augment the hearing record after it had been
closed be granted?
3. 	Did the District interfere with Moberg’s EERA rights by allegedly insisting that
it would choose his representative for him at an interview?
4. 	Did the District discriminate/retaliate against Moberg for his protected activity
by terminating his employment or failing to pay him for work that he performed during the
Fall 2012 semester?
19

CONCLUSIONS OF LAW
Motion to Amend the Complaint
Toward the end of first day of hearing, February 24, 2016, after a number of e-mails
had been admitted into the evidentiary record demonstrating that Moberg had requested union
representation for an interview with Pyer, Moberg requested that his complaint be amended to
add more incidents of protected activity. The ALJ asked Moberg to bring the amendment in
writing to the next day of hearing. On the second day of formal hearing, February 25, 2016,
Moberg moved to amend the complaint to add more incidents of protected activity, but did not
provide the proposed language which he wanted to amend into paragraph 3 of the complaint.
The ALJ deferred ruling on the motion to amend until Moberg provided specific language to
amend into the complaint.
On the final day of hearing, February 26, 2016, Moberg provided proposed language
which he wanted to amend into paragraph 3 of the complaint. That language added the
following incidents reflecting Moberg’s exercise of protected activity:
(a) On or about August 23, 2012, Charging Party asserted his
rights, guaranteed by the Educational Employment Relations
Act, to union representation during a meeting called by Terri
Pyer relating to the investigation that Pyer had initiated earlier
on that same day.
(b) On or about August 27, 2012, Charging Party re-asserted his
rights, guaranteed by the Educational Employment Relations
Act, to union representation during a meeting called by Terri
Pyer relating to the investigation that Pyer had initiated on or
about August 23, 2012.
(c) On or about August 28, 2012 Charging Party re-asserted his
rights, guaranteed by the Educational Employment Relations
Act, to act in concert with Liz Estrella and Hermelinda Rocha
for the purpose of providing mutual aid and protection of his
right to union representation during a meeting called by Terri
20

Pyer relating to the investigation that Pyer had initiated on or
about August 23, 2012.
(d) On or about September 7, 2012, Charging Party re-asserted
his rights, guaranteed by the Educational Employment
Relations Act, to union representation during a meeting called
by Terri Pyer relating to the investigation that Pyer had
initiated on or about August 23, 2012.
In summary, Moberg sought to amend his complaint to allege other protected activities
where he requested union representation prior to the decision to terminate his employment.
These requests were not unknown to the District as they were all part of the e-mail chain of
Pyer attempting to schedule an interview with Moberg over the complaint filed against him.
These requests to add specific incidents of protected activity should not be precluded as it
merely conformed evidence presented into the complaint and therefore does not substantially
affect the rights of the parties. (City of Montebello (2016) PERB Decision No. 2491-M, p. 6.)
In light of the fact that these protected activities were known to the District, and the District
did not demonstrate any prejudice by an amendment of adding protected activity which had
been already introduced into the record on the first day of the hearing, Moberg’s proposed
amendments in paragraphs 3 (a) through (d) are deemed appropriate pursuant to PERB
Regulation 32648 and are therefore amended into the complaint.
Requests to Augment the Hearing Record After it was Closed
At the end of the last day of hearing, February 26, 2016, the ALJ agreed to leave the
evidentiary record open only so Moberg could check his direct deposit records with his credit
union to confirm whether the September 12, 2012 check from the District had been directly
deposited into his account as testified by Dora Sanchez. The evidentiary record was not left
open for any other documentation to be submitted. On March 10, 2016, Moberg notified the
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ALJ and the District, that his direct deposit records from Provident Credit Union reflected that
on September 28, 2012, he received $1,232.34 into his account.13
1. 	First Requests to Augment the Hearing Record
On February 29 and March 1, 2016, Moberg sent e-mails to the ALJ and the District
attaching two documents (both e-mails) requesting to augment the evidentiary record.14 On
March 2, 2016, the ALJ rejected Moberg’s attempt to augment the record, as the evidentiary
record was closed, and informed Moberg that he needed to file a formal motion to reopen the
record with the appropriate justification(s) and declaration(s) for his request to considered.
Moberg never filed the requisite motions and declarations to reopen the record.
On March 10, 2016, Moberg sent an e-mail to the PERB electronic filing account
(e-file)15 in which he notified the ALJ and the District that a SFSU accounting major told him
that Respondent’s Exhibit M may demonstrate that Hartnell still owed him compensation for
eight hours of work and that he would be submitting a full report the next day from his expert
witness—a former professor of governmental accounting from University of California
Berkeley. The District responded by reminding Moberg that the record was closed and that no
further evidence was appropriate absent a motion to reopen the hearing. Moberg did not file
such a motion with an accompanying declaration.
13 Moberg’s admission as to the direct deposit is considered part of the hearing record.
14 The first e-mail covered the dates of August 22 and 23, 2012, and was between
Estrada, Pyer, and Moberg. The second e-mail was dated September 7, 2012, and was between
Lucy Serrano, Tina Esparza-Luna, and Wright.
15 PERB Regulation 32091. PERB Regulations are codified at California Code of
Regulations, title 8, section 31001 et seq.
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2. 	Second Request to Augment the Hearing Record
On March 12, 2016, the ALJ notified the parties that the representatives agreed that
post-hearing briefs were to be submitted by April 22, 2016. At the end of Moberg’s
post-hearing brief, he requested that the ALJ take judicial/official notice of: (1) a sentence
from page 40 of an unpublished 2015 tentative decision in The People of the State of
California v. Accrediting Commission for Community and Junior Colleges from San Francisco
Superior Court Judge Karnow in San Francisco Superior Court Case No CGC013-533693;16
(2) Moberg’s SFSU academia listing demonstrating Moberg’s standing as a prominent
international public intellectual; (3) an April 11, 2016 declaration of Vincent P. Hurley in
another PERB case (Eric M. Moberg v. Cabrillo Community College District, PERB Case No.
SF-CE-2994-E) stating that Prescott University exists; (4) GAO-04-1096T, an official
publication of the United States Government which establishes that Corllins University is not a
“diploma mill;” (5) the Michigan Department of Education Non-Accredited Schools list;
(6) the fact that Oregon no longer lists non-accredited universities; (7) an article in
lexisnexis.com and Opulent Acquisition’s FORM 8-K dated January 14, 2016, with the United
States Securities and Exchange Commission; (8) a newspaper article in the Santa Cruz
Sentinel, dated September 12, 2010, regarding Joe Clarke, who was promoted to sergeant with
the Santa Cruz County Sheriff’s Department and who had a degree from Corllins University.
The post-hearing brief also cites to documents which were not part of the evidentiary record,
but were supposedly part of the hearing file which were not introduced at the hearing. These
16 Moberg did not give any indication as to the context of this tentative decision,
whether the tentative decision became final, and the current status of the case. The tentative
decision itself was not provided with the request for judicial notice.
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documents were not part of the evidentiary record, and cannot be used for purposes of
determining a finding of fact.17
3. 	Third Request to Augment the Hearing Record
On April 28, 2016, Moberg sent to the PERB e-file account an e-mail inquiring whether
the opposing party objected to taking official notice of a newspaper article from The Guardian,
in April 2016, titled “Trump and Clinton share Delaware tax ‘loophole’ address with 285,000
firms.” The District did not agree to reopen the hearing. Moberg never filed a motion to
reopen the record with the accompanying declaration(s).
4. 	Fourth Request to Augment the Hearing Record
On or about June 27, 2016, Moberg submitted a fourth request to augment the hearing
record which included a declaration stating that he did not receive the e-mail until
June 21, 2016, as a result of his formal hearing in Eric M. Moberg v. Cabrillo Community
College District, PERB Case No. SF-CE-2994-E. The attached e-mail with the request was
dated November 12, 2012, from Cabrillo College Dean Kathleen Welch, who learned at a
conference that Moberg’s transcripts/degrees needed to be verified and that Cabrillo College
should contact Hartnell College, who suffered from threats of lawsuits from Moberg. On or
about June 28, 2016, the District filed its opposition to Moberg’s request to reopen the record.
5. 	Fifth Request to Augment the Hearing Record
On or about March 20, 2017, Moberg sent an e-mail to the PERB e-file account
requesting that District Counsel allow him to present newly collected evidence regarding his
academic research and writing abilities, his stature in “American arts and letters,” and the
17 At the beginning of the hearing, the ALJ notified the parties that he intended to take
official notice of the hearing file, but it was only for the purpose of how the parties arrived at
the point where a formal hearing was authorized to be conducted.
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likelihood that the Academic Senate of Hartnell College would have approved his equivalency
application(s). On the same day, District Counsel responded that it objected to Moberg’s latest
attempt to present new evidence.
PERB Regulation 32140, subdivision (a), sets forth its requirements for requesting
reconsideration from a Board decision,18 including when the request for reconsideration is
based upon the discovery of new evidence. PERB Regulation 32140, subdivision (a), provides
in pertinent part:
Any party to a decision of the Board itself may, because of
extraordinary circumstances, file a request to reconsider the
decision within 20 days following the date of service of the
decision. . . . The grounds for requesting reconsideration are
limited to claims that: . . . (2) the party has newly discovered
evidence which was not previously available and could not have
been discovered with the exercise of reasonable diligence.
A request for reconsideration based upon the discovery of new
evidence must be supported by a declaration under the penalty of
perjury which establishes that the evidence: (1) was not
previously available; (2) could not have been discovered prior to
the hearing with the exercise of reasonable diligence; (3) was
submitted within a reasonable time of its discovery; (4) is
relevant to the issues sought to be reconsidered; and (5) impacts
or alters the decision of the previously decided case.
(Emphasis added.)
PERB Regulations governing the conduct of unfair practice proceeding (PERB
Regulations 32165 through 32230) do not have a similar regulation for reopening an
evidentiary hearing record once the formal hearing has been closed, however, PERB
Regulations 32190 and 32170, subdivisions (a), (d), and (f), taken together arguably authorize
the ALJ to reopen the hearing to take new evidence. Regardless, it seems unlikely that the ALJ
18 This regulation applies only to Board decisions from the filing of exceptions from an
Administrative Law Judge’s proposed decision. (Berkeley Federation of Teachers, Local 1078
(Crowell) (2015) PERB Decision No. 2405a, pp. 14-15.)
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could reopen the hearing under a procedure which is less restrictive than that outlined by the
Board for itself in PERB Regulation 32140, subdivision (a). The Board’s own procedure,
moreover, provides a useful framework from which ALJs may evaluate requests to consider
new evidence, in the absence of more specific guidance from PERB’s Regulations or from the
Legislature.
All of Moberg’s requests to augment the record, other than his fourth request, did not
meet the requisite requirements set forth in PERB Regulation 32140, subdivision (a), and the
ALJ’s own instructions to him (a formal request or motion with an accompanying declaration,
not an e-mail) and therefore must be rejected outright. Moberg’s fourth request to augment the
hearing record included a declaration stating that the e-mail was recently discovered.
However, the e-mail has no relevance or impact upon the final outcome of the proceeding as it
reflects communications which occurred on November 1, 2012, and would not add anything
new to Dr. Lewallen’s decision or his reasons for taking the termination action against Moberg
at the time of his decision. The e-mail also does not establish whether Dr. Lewallen had any
knowledge of Moberg’s protected activities at the time that he made his decision to terminate
Moberg. The introduction of the e-mail into the record of this proceeding therefore does not
satisfy the “extraordinary circumstances” requirement of PERB Regulation 32140. Moberg’s
fourth request to augment the hearing record after it had been closed is also rejected.
Interference Allegation
Paragraphs 7 and 8 of the amended complaint set forth the interference allegation as:
7. 	On or about September 10. 2012, Respondent, through its
agent Terri Pyer, sent Charging Party an e-mail message wherein
Pyer insisted that she would choose Charging Party’s
representative for him but from a union to which Charging Party
did not belong.
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8. 	By the acts and conduct described in paragraph 7,
Respondent interfered with employee rights guaranteed by the
Educational Employment Relations Act in violation of
Government Code section 3543.5(a).
EERA section 3543 protects public school employees’ right to form, join, and
participate in the activities of their employee organization. PERB’s interference test does not
require evidence of unlawful motive, only that there be at least “slight harm” to employee
rights results. (Simi Valley Unified School District (2004) PERB Decision No. 1714, p. 17
(Simi Valley USD).) The Board described the prima facie standard as follows:
[I]n order to establish a prima facie case of unlawful interference,
the charging party must establish that the respondent’s conduct
tends to or does result in some harm to employee rights granted
under EERA.
(Ibid., quoting State of California (Department of Developmental Services) (1983) PERB
Decision No. 344-S; Carlsbad Unified School District (1979) PERB Decision No. 89, p. 10,
emphasis added (Carlsbad USD).)
PERB examines whether the respondent’s actions “reasonably tend to coerce or
intimidate employees in the exercise of rights protected under the Act.” (Clovis Unified School
District (1984) PERB Decision No. 389, pp. 14-15, quoting NLRB v. Triangle Publications
(3d Cir. 1974) 500 F.2d 597, p. 598.) That “no one was in fact coerced or intimidated is of no
relevance.” (Ibid.) PERB considers the totality of the circumstances when making these
determinations. (Los Angeles Community College District (1989) PERB Decision No. 748,
proposed decision, p. 16.)
If a prima facie case is established, then PERB balances the degree of harm to protected
rights against the employer’s asserted interests. (Hilmar Unified School District (2004) PERB
Decision No. 1725, p. 16, citing Carlsbad USD, supra, PERB Decision No. 89 at pp. 10-11.)
27

“Where the harm is slight, the Board will entertain a defense of operational necessity and then
balance the competing interests.” (Ibid.) On the other hand, “[w]here the harm is inherently
destructive [of protected rights], the employer must show the interference was caused by
circumstances beyond its control.” (Ibid.) The employer bears the burden of proving the
necessity of its actions. (Simi Valley USD, supra, PERB Decision No. 1714, pp. 17-18, citing
Carlsbad USD.)
Regarding an employee’s right to his choice of union representation, the Board in
Jurupa Unified School District (2012) PERB Decision No. 2283, succinctly stated:
Under EERA a union designates the union’s agents, including
without limitation union agents who will represent employees in
investigatory interviews. EERA does not oblige an employer or
the union to accommodate an employee’s choice of union
representative, either in scheduling or conducting an investigatory
interview; provided that, where an employee’s preferred union
representative is available, an employer may not insist upon a
different representative. Nor does EERA afford an employee the
right to be represented by the employee’s own attorney in an
investigatory interview conducted by employer officials.
(Id., at p. 30-31, citations and footnotes omitted.)
In other words, once an employee organization has been recognized or certified as the
exclusive representative of a bargaining unit, “only that employee organization may represent
that unit [of employees] in their employment relations with the public school employer.”
(EERA, § 3543.1, subd. (b); Mount Diablo Unified School District, et al. (1977) EERB
Decision No. 44 (Mount Diablo), pp. 8-9; Capistrano Unified School District (2015) PERB
Decision No. 2440, p. 13.) The right to union representative at an investigatory interview does
not require an employer to postpone an interview because a specific union representative the
employee requested is absent, so long as another union representative is available at the time set
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for the interview. (State of California (Department of Transportation) (1994) PERB Decision
No. 1049-S.)
In Hartnell CCD, supra, PERB Decision No. 2452, the Board provided the following
regarding an employer’s role in deciding or influencing matters of employee choice regarding
employee representation:
[T]he employer has no role in deciding or influencing matters of
employee choice or the administration of an employee
organization's internal affairs. (San Ramon Valley Unified
School District (1982) PERB Decision No. 230 (San Ramon),
p. 16; Fresno Unified School District (1982) PERB Decision
No. 208, pp. 21-22; Trustees of CSU, supra, PERB Decision
No. 2384-H, p. 33; see also NLRB v. Wooster Division of
BorgWarner Corporation (1958) 356 U.S. 342.) Consequently,
employer statements that assert a right to influence or direct the
employee’s choice of a representative interfere with protected
rights, because they convey the impression that engaging in
union or other concerted activity is futile. (County of Riverside,
supra, PERB Decision No. 2119-M, pp. 18-20; Dayton Hudson
Corp. (1995) 316 NLRB 477; Holiday Inn-Glendale (1985) 277
NLRB 1254, 1271.) (Emphasis in original.)
In this case, Pyer had attempted to interview Moberg for a couple of weeks without
success. For one reason or another, Pyer, Moberg, and his union representative could not come
to an agreement as to an interview date. Pyer finally set a deadline for an interview. In setting
a deadline, she copied Wright with the e-mail so that union representation could be provided
for him. It was undisputed that Wright was the president of the Faculty Association which
represented Moberg.
In Pyer’s September 10, 2012 e-mail, she did not reference the name of a specific
Faculty Association representative who would be representing Moberg on the Wednesday at
issue. Rather, she contacted Wright to ensure that Moberg would be present with a Faculty
Association representative that day. It is not found by the content of her e-mail and the events
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leading up to the September 10, 2012 e-mail, that Pyer was selecting a union representative for
Moberg, but rather only ensuring that her interview went forward on Wednesday and that
Moberg had a union representative at that interview. As such, Moberg has not established that
the District interfered with Moberg’s right to avail himself of a union representative from the
exclusive representative and the allegation that Pyer interfered with Moberg’s rights under
EERA is dismissed.
Discrimination/Retaliation Allegations
To demonstrate that a public school employer discriminated or retaliated against an
employee in violation of EERA section 3543.5, subdivision (a), the charging party must show
that: (a) the employee exercised rights under EERA; (b) the employer had knowledge of the
exercise of those rights; (c) the employer took adverse action against the employee; and (d) the
employer took the action because of the exercise of those rights. (Novato Unified School
District (1982) PERB Decision No. 210, pp. 6-8 (Novato USD).) If the charging party satisfies
all of the elements of the prima facie case, the burden shifts to the respondent 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 protected activity. (Cabrillo Community College District
(2015) PERB Decision No. 2453, p. 12, citing Martori Bros. Dist. v. Agricultural Labor
Relations Board (1981) 29 Cal.3d 721; Trustees of the California State University (2000)
PERB Decision No. 1409-H; Novato USD.)
1. 	Protected Activity
EERA section 3543, subdivision (a), provides in pertinent part:
Public school employees shall have the right to form, join, and
participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of
employer-employee relations.
30

Moberg’s multiple requests for a union representative to assist him at an investigatory
interview where an employee complaint had been filed against him is exactly the type of right
protected by EERA section 3541, subdivision (a). Additionally, the communication of a threat
to file an unfair practice charge is similarly protected. (Hartnell CCD, supra, PERB Decision
No. 2452.) Moberg has satisfied the first element of establishing a prima facie case of
discrimination/retaliation.
2. 	Adverse Action
In determining whether evidence of an adverse action is established, the Board uses an
objective test and will not rely upon the subjective reactions of the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689, p. 12.) In a later decision, 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.
(Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12; emphasis added;
footnote omitted.)
a. 	Termination
Termination from one’s teaching position clearly constitutes an adverse action under
EERA. (Los Angeles Unified School District (2016) PERB Decision No. 2479.) Moberg has
established this element of the prima facie case of discrimination/retaliation.
b. 	Failure to Pay for Work Performed
Moberg was unable to show that he was not paid for time actually worked during the
Fall Semester of 2012. He initially stated that he believed that Pyer had stopped the direct
31

deposit of the September 28, 2012 check; however, after reviewing both the records of the
District, the accompanying testimony of Sanchez, and Moberg’s belated admission, it was
demonstrated that this direct deposit was not halted. Additionally, the District established that
Moberg was paid for the missing timesheets reflecting his work during the two-week
intercession class and Moberg did not challenge that he was paid for these hours. Therefore, as
Moberg did not demonstrate that the District failed to pay him for time actually worked during
the Fall Semester of 2012, this allegation must be dismissed as Moberg did not establish a
prima facie case of discrimination/retaliation.
3. 	Knowledge of Protected Activity
To demonstrate the knowledge element of a prima facie case, at least one of the
individuals responsible for taking the adverse action (the termination action) must be aware of
the protected conduct. (Oakland Unified School District (2009) PERB Decision No. 2061.)
The issue is whether “the individual(s) who made the ultimate decision to take adverse action
against the employee had such knowledge.” (Sacramento City Unified School District (2010)
PERB Decision No. 2129, p. 7, citing City of Modesto (2008) PERB Decision No. 1994-M.)
Without factual support, knowledge of protected activity cannot simply be presumed and
imputed to the employer’s decision-maker in the action at issue. (See City & County of
San Francisco (2011) PERB Decision No. 2207-M, adopting dismissal ltr., p. 5.)
Dr. Lewallen was the ultimate decision-maker who decided that Moberg should be
terminated on September 24, 2012. He stated that he terminated Moberg based upon his
fraudulent credentials (Corllins University transcript and degree) and his accompanying failure
to meet the minimum qualifications required to instruct the District’s students. Dr. Lewallen
did not mention any other reason for the termination such as Moberg’s prior employment with
32

San Mateo COE. Dr. Lewallen did not testify as to the issue of whether he was aware of
Moberg’s request for union representation and threat to file an unfair practice charge against
the District. Additionally, Pyer’s September 11, 2012 e-mail does not mention that Moberg
requested union representation or that he threatened to file an unfair practice charge against the
District, but only that she was having difficulty trying to schedule a meeting with Moberg to
discuss an employee complaint filed against him. Moberg has the burden to establish
Dr. Lewallen’s knowledge of his protected activity and has failed to do so.
The analysis does not end there. Moberg can attempt to establish Dr. Lewallen’s
knowledge of his protected activities under the subordinate bias liability doctrine. According
to PERB’s subordinate bias liability doctrine, a subordinate employee’s anti-union animus is
not imputed to a decision-maker unless:
(1) the subordinate makes a recommendation, report, or
evaluation to the decision-maker because of an employee’s
protected conduct; (2) the subordinate intended his or her conduct
to result in an adverse action for the employee; and (3) the
subordinate’s conduct was a motivating factor or proximate cause
for an adverse action against the employee. (Santa Clara Valley
Water District (2013) PERB Decision No. 2349-M, p. 33, citing
State of California (Department of Corrections) (2001) PERB
Decision No. 1435-S, other citation omitted.) Subordinate
liability will not be found where the lower-level employee
provides the decision-maker with accurate information. (Id. at
p. 34.) Rather, there must be a showing that the subordinate
tainted the decision-making process with biased, inaccurate, or
incomplete information. (Ibid.)
(Anaheim Union High School District (2015) PERB Decision No. 2434, adopted
proposed decision, pp. 91-92.)
As stated earlier, the reason why Dr. Lewallen terminated Moberg was because of his
fraudulent credentials, in this case referring to Moberg’s Corllins transcript.. The information
provided by Pyer regarding Corllins’s University transcript was straight from the face of the
33

transcript itself and her accompanying internet searches. During the hearing, the content of the
Corllins’s University transcript and the accompanying internet searches of Pyer were not
established to be inaccurate. Indeed, Moberg’s own testimony describing how he obtained the
degree from Corllins University, including whether he had to complete any work to obtain this
degree, only buttressed Pyer’s testimony and her September 11, 2012 e-mail to Dr. Lewallen.
Additionally, in Pyer’s September 11, 2012 e-mail she was candid about how Vice-President
Flannigan had approved Moberg’s hire even after she did not indicate that Moberg had met the
minimum qualifications for the position. Such a candid disclosure revealed to Dr. Lewallen
the one weakness which the District had in proceeding with a termination action, but, on the
other hand, further established that Pyer provided complete and accurate information to the
ultimate decision-maker.
As it cannot be found that Pyer provided the ultimate decision-maker with inaccurate or
incomplete information regarding the reasons for which the District took adverse action against
Moberg, it cannot be found that Pyer tainted the decision-making process or that she issued her
September 11, 2012 e-mail because of Moberg’s protected conduct. Therefore, Moberg has
failed to demonstrate that the District’s decision-maker had knowledge of his protected
activities through the subordinate bias liability doctrine. As such, Moberg has also failed to
establish a prima facie case of discrimination/retaliation in regards to his termination from the
District and this allegation is also dismissed.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SF-CE-2984-E,
Eric Moberg v. Hartnell Community College District, are hereby DISMISSED.
34

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) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
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 transmission before the
close of business together with a Facsimile Transmission Cover Sheet or received by electronic
mail before the close of business, which meets the requirements of PERB Regulation 32135,
subdivision (d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds.
(b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090, 32091 and 32130.)
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
35

on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
36