State of California (Department of Social Services (Service Employees International Union Local 1000) (PERB 2624S)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1000,
Charging Party,
v.
STATE OF CALIFORNIA (DEPARTMENT OF
SOCIAL SERVICES),
Respondent.
Case No. SA-CE-2073-S
PERB Decision No. 2624-S
February 5, 2019
Appearances: Daniel Luna, Staff Attorney, for Service Employees International Union
Local 1000; State of California (Department of Human Resources) by Camille K. Binon,
Labor Relations Counsel, for State of California (Department of Social Services).
Before Banks, Shiners, and Krantz, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Charging Party Service Employees International Union,
Local 1000 (SEIU) to the attached proposed decision of an administrative law judge (ALJ).
The complaint in this case alleged that the State of California (Department of Social Services)
(Department) violated the Ralph C. Dills Act (Dills Act)1 by demoting Carey Wilson (Wilson)
because of her participation in protected activity. Following an evidentiary hearing, the ALJ
dismissed the complaint, concluding that the demotion was based upon Wilson’s repeated
policy violations and not her service as a union officer or her use of union leave. SEIU now
asks that we reverse the ALJ’s dismissal of the complaint.
1 The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
noted, all statutory references are to the Government Code.

________________________
Based on our review of the proposed decision, the entire record, and relevant legal
authority in light of the parties’ submissions, we conclude that the ALJ’s factual findings are
supported by the record and her conclusions of law are well-reasoned and consistent with
applicable law. We therefore adopt the proposed decision as the decision of the Board itself,
as supplemented by the following discussion of SEIU’s exceptions.
BACKGROUND
The full procedural history and factual findings can be found in the attached proposed
decision. We summarize the pertinent findings here to give context to our discussion of SEIU’s
exceptions.2
Prior to her demotion, Wilson was a Disability Evaluation Analyst (DEA). DEAs
evaluate a claimant’s qualification for disability benefits based on a medical and vocational
assessment. Among the computer programs DEAs use to adjudicate and manage cases are
MIDAS and eCAT. MIDAS organizes caseloads, tracks cases, and creates “tickles,” which are
date prompts for completing the next action in a case. Every open case must have a tickle to
schedule the next action to avoid the case getting “lost.” The eCAT program is used to
summarize evidence, note actions taken or reasons for delays, and record medical and vocational
determinations.
The Department periodically issues policies to its staff regarding claims processing.
Between April 2012 and August 2014, the Department circulated four different policy
memoranda to staff with subjects that included maintaining the integrity of electronic folder data,
workload management, and workflow expectations. Each of these memoranda discussed the
2 We also correct a few inadvertent errors and omissions in the proposed decision.
Thus, where the findings described here conflict with those in the proposed decision, the
proposed decision’s findings are superseded.
2

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Department’s policy that all cases must have a tickle and reminded employees that they could be
disciplined for clearing a tickle without taking appropriate or meaningful action on a case.3 It is
undisputed that Wilson received these memoranda.
Beginning in 2007, Wilson held several official positions within SEIU, including job
steward and District Labor Council President. Over the years, her involvement with SEIU often
required her to take union leave. Wilson’s union leave began to increase in 2012. Initially, she
took intermittent leave during that year before taking a full-time leave from November 2012 to
March 2013. Her leave was intermittent after returning to work in March 2013, until she took
another full-time leave from August 2014 to November 2014. In 2015, Wilson, through SEIU,
made a total of 22 union leave requests, two of which the Department denied. Her union leave
through most of 2015 was intermittent. Wilson took another full-time leave from December
2015 to April 2016.
Unit Manager Jon Howard (Howard) was Wilson’s supervisor from December 2013 to
August 2015. Prior to becoming Wilson’s supervisor, Howard served as a DEA, attended the
six-month DEA training class together with Wilson, and was an SEIU member. In July 2014,
Wilson received an Individual Development Plan (IDP). While the IDP noted that Wilson
maintained a 92.4% accuracy rate, it also referred to areas of improvement needed and identified
“major issues” as tickles being cleared before action was taken, entries referencing actions made
before the actions were taken, and completion of actions without entering information in
MIDAS. The IDP listed specific case examples of tickles cleared without appropriate or
meaningful action taken, medical records not reviewed, and entries for actions not completed.
3 A DEA could clear a tickle in one of two ways: either by marking it as “P’d”,
denoting the tickle was completed, or by marking it as “Q’d”, denoting the action tied to the
tickle was not performed.
3

In August 2014, Howard counseled Wilson about her work performance issues, including
her high number of pending cases and improper clearing of tickles without appropriate action
being taken. Nevertheless, Wilson continued to clear tickles inappropriately, leading the
Department to issue her a Notice of Adverse Action (NOAA) in November 2014. The NOAA
included 12 case examples of alleged policy violations, 11 of which involved clearing tickles
without taking meaningful action, leading to delays in cases ranging from 18 to 65 days. The
NOAA reduced her salary by five percent for four months. Wilson and SEIU filed an appeal
with the State Personnel Board (SPB), which resulted in an agreement between the parties to
reduce the discipline to a five percent salary reduction for two months.
Following imposition of the reduction in pay, Howard continued to monitor Wilson’s
caseload and send her e-mails regarding specific case issues or actions needed. In or about
March 2015, Howard observed a continuing pattern of Wilson improperly clearing tickles, and
Howard discussed the issue with his supervisors. In May 2015, he began to audit her cases.
Meanwhile, at Howard’s behest, on May 5, 2015, Wilson attended a “tune up” training session
regarding medical records processing. That same month, Howard and his supervisors decided to
pursue a further NOAA against Wilson. Prior to drafting a second NOAA, Howard and his
supervisors considered putting Wilson on a case management plan even though she had already
been placed on an IDP, but ultimately chose not to do so as they believed there was a
straightforward means for Wilson to avoid her most common policy violations: she needed to
stop clearing tickles inappropriately.
Howard completed the first draft of the second NOAA in July 2015. The Department’s
legal division reviewed the draft and returned it to Howard in August 2015, asking for additional
information. Howard sent a second draft to the legal division in September, followed by a third
4

and final draft that was reviewed and returned to Howard in late October. The legal division
directed Howard to update the case activity information summarized in the NOAA each time a
draft was returned. The issues identified in the NOAA were largely the same as the issues
underlying Wilson’s November 2014 reduction in pay.
On October 9, 2015, Wilson requested union leave to attend a special council meeting to
be held on October 28 and 29. The Department denied her request on October 12, forcing her to
use vacation leave to take the time off. On October 29, Howard and his supervisors signed a
formal request for Department management to issue the NOAA. On November 6, the
Department of Human Resources reversed the denial of Wilson’s union leave for October 28 and
29, and restored her vacation leave for those dates.
The Department served Wilson with the second NOAA on December 31, 2015. The
NOAA demoted Wilson from a DEA to a Program Technician II, and summarized the 13 most
egregious examples of her policy violations, including clearing tickles without taking meaningful
action, making untimely requests for records and belatedly reviewing records, and failing to
timely schedule consultative exams and to take action following receipt of consultative
assessments. These violations resulted in delays of two to six months for claimants awaiting
their disability determinations. Wilson and SEIU appealed the demotion to the SPB. The SPB
upheld Wilson’s demotion despite clearing her of certain alleged violations, including dishonesty
for clearing tickles without entering substantive information into the electronic case management
system.
At the formal hearing in this matter, SEIU presented evidence regarding three other
DEAs from the Department who had received NOAAs. Each of these three NOAAs discussed
untimely actions, lack of knowledge of program requirements, failure to recognize issues and
5

apply policy/program criteria, and inability to work independently, all of which resulted in
significant delays in making disability determinations. Only one of the DEAs was charged with
improperly clearing tickles. All three of the other DEAs were given at least one case
management plan prior to their adverse actions. Two of these DEAs were demoted, while the
third received a one-year suspension.
DISCUSSION
The Dills Act prohibits the state from imposing reprisals on employees because of their
exercise of rights guaranteed by the Act, including the right to form, join, and participate in the
activities of employee organizations of their own choosing. (Dills Act, § 3519, subd. (a).) To
establish a prima facie case of retaliation, the charging party must prove that: (1) the employee
exercised rights under the Dills Act; (2) the employer had knowledge of the employee’s
exercise of those rights; (3) the employer took adverse action against the employee; and (4) the
employer took the adverse action because of the employee’s exercise of those rights. (State of
California (Department of Corrections & Rehabilitation) (2010) PERB Decision No. 2118-S,
p. 5; Novato Unified School District (1982) PERB Decision No. 210, pp. 6-7 (Novato).)
Once the charging party establishes a prima facie case of retaliation, the burden shifts to
the employer to prove it would have taken the same adverse action even if the employee had
not engaged in protected activity. (Novato, supra, PERB Decision No. 210, p. 14; Martori
Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730;
Wright Line (1980) 251 NLRB 1083, 1089.) To prevail, the employer must show that it had an
alternative non-discriminatory reason for imposing the adverse action and that it acted because
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of this alternative non-discriminatory reason, not because of the employee’s protected activity.
(Palo Verde Unified School District (2013) PERB Decision No. 2337, pp. 12-13.)4
Here, the ALJ found a prima facie case of retaliation because the Department demoted
Wilson shortly after she requested union leave and without first giving her a case management
plan, which it had done for other DEAs with similar performance issues. The ALJ ultimately
concluded, however, that the Department proved its affirmative defense that it would have
demoted Wilson even if she had not engaged in protected activity. SEIU raises three grounds
for reversing the proposed decision.5 We address each in turn.
1. 	Evidence Regarding Wilson’s Policy Violations
The ALJ concluded that the Department proved it had a non-discriminatory reason for
demoting Wilson, viz., that she violated Department policy by clearing tickles without taking
meaningful action on cases, and that the Department acted because of this reason and not
because of her union activity. SEIU raises several arguments about the Department’s claim
that Wilson’s policy violations caused harm to claimants, which SEIU asserts the ALJ
improperly accepted without sufficient evidentiary support.
First, SEIU asserts that Wilson did not delay in processing her cases and therefore did
not cause harm to claimants seeking disability benefits. In support of this argument, SEIU
asserts Wilson granted presumptive disability to claimants in “several” of the 13 claims that
formed the basis for her demotion. DEAs are empowered to grant presumptive disability status
4 While the Novato framework is not the exclusive means for analyzing discrimination
and retaliation allegations, it is typically applied in cases such as the instant one that involve
alleged discrimination or retaliation against an individual employee. (See Los Angeles County
Superior Court (2018) PERB Decision No. 2566-C, pp. 11-16 [explaining discrimination and
retaliation theories under PERB precedent].)
5 SEIU filed four exceptions, but two of the three grounds discussed below are common
to multiple exceptions.
7

to claimants for supplemental security income during the pendency of a final determination, if
the evidence suggests likely disability. Because presumptive disability allows a claimant to
begin receiving benefits expeditiously, SEIU suggests that Wilson’s actions did not cause harm
to at least some of the 13 claimants. Yet the record contains only one example of Wilson
placing a claimant on presumptive disability. The record thus does not support SEIU’s
contention that Wilson granted presumptive disability status to multiple claimants.
The record does not indicate whether any of the other 12 claimants suffered harm
because of Wilson’s failure to take meaningful action before clearing tickles in their cases. But
the purpose of the Department’s policy requiring meaningful action before a tickle is cleared is
to track case progress, ensure cases are not lost in the system, and prevent delays which could
result in harm to claimants. The potential for harm therefore exists whenever a DEA clears a
tickle without taking meaningful action on a case. When an employee’s misconduct creates
potential harm to the public, the employer need not wait until actual harm occurs before
disciplining the employee. (See County of Siskiyou v. State Personnel Bd. (2010)
188 Cal.App.4th 1606, 1615 [“‘in the context of public employee discipline,’ the ‘overriding
consideration’ is ‘the extent to which the employee’s conduct resulted in, or if repeated is
likely to result in, harm to the public service.’”], emphasis added, quoting Skelly v. State
Personnel Bd. (1975) 15 Cal.3d 194, 218.) The lack of evidence of actual harm to claimants
resulting from Wilson’s policy violations thus does not assist SEIU’s case.
SEIU also claims Wilson was not simply clearing tickles but was actually taking steps
to move cases toward closure, and that no precise action was required to progress a case and
thus clear a tickle. As support, SEIU cites Wilson’s testimony regarding the discretion DEAs
are afforded in addressing issues that a claimant raises or that a DEA discovers while
8

reviewing a case. Even taking into account such discretion, the record does not show any
specific steps Wilson took to move any of the 13 cases toward closure at the time she cleared
the tickle in each case.
Instead of presenting such evidence, SEIU relies on a finding in the SPB’s decision on
Wilson’s demotion appeal. Specifically, the SPB found that the Department failed to establish
Wilson cleared tickles without entering substantive information into the case management
system. SEIU argues the SPB’s finding precludes PERB from finding Wilson did not take
meaningful action before clearing tickles.
PERB may grant collateral estoppel effect to an SPB decision if it resolved one or more
disputed issues of fact properly before the SPB that are also before PERB, and the SPB
afforded the parties an adequate opportunity to litigate such issue(s). (State of California
(Department of Corrections) (1995) PERB Decision No. 1104-S, adopting proposed decision
at pp. 11-12.) Here, neither party has expressly asked the Board to give the SPB decision
collateral estoppel effect nor briefed the extent to which the collateral estoppel factors are
satisfied. The parties also did not reach any relevant stipulations regarding the SPB’s
determinations, nor did they put the evidentiary record from the SPB proceedings into the
record in this case. As a result, we have neither a reason nor the ability to determine whether
collateral estoppel would be appropriate here. Nonetheless, considering the decision for its
persuasive value, we see no reason to limit our review to the findings favorable to SEIU while
ignoring that the SPB upheld the charges of inefficiency, neglect of duty, and willful
disobedience, and also found that Wilson failed to prove her affirmative defense that the
Department demoted her because of her union leave requests. Thus, notwithstanding its
9

finding in favor of Wilson on the dishonesty charge, the SPB decision tends to support the
ALJ’s findings and conclusions.
Furthermore, nothing precludes PERB and the SPB from reaching contrary findings
based on the evidence before the respective agencies. For instance, in State of California
(Department of Transportation) (1984) PERB Decision No. 459-S, the Board refused to defer
to an SPB decision upholding an employee’s two-day suspension when the record before
PERB showed that the employee was suspended because he engaged in protected activity.
(Id. at pp. 8-9.) Here, the ALJ found based on the evidence presented by the parties in this
proceeding that Wilson was clearing tickles without taking meaningful action on cases. That
the SPB found differently on the evidence before it does not render the ALJ’s finding
erroneous.
In sum, we do not find that the ALJ’s factual findings overstate the potential for harm
stemming from Wilson’s policy violations. We also find nothing in the SPB decision that
persuades us the ALJ made erroneous factual findings based on the record in this proceeding.
We thus affirm the ALJ’s conclusion that the Department proved it demoted Wilson because of
her policy violations, and not because of her service as a union officer or her use of union
leave.
2. 	Howard’s Credibility
The ALJ found Howard’s testimony credible based upon his clear and comprehensive
answers, thorough knowledge of the case review process, and complete understanding and
memory of the cases summarized in Wilson’s NOAAs. (Proposed Decision, p. 18, fn. 9.)
SEIU excepts to the ALJ’s credibility determination on the grounds that Howard allegedly did
not testify accurately about the timing of the decision to issue a second NOAA against Wilson,
10

and that the ALJ accepted without any evidentiary basis Howard’s testimony that there was no
reason to place Wilson on a case management plan prior to the second NOAA.
Although the Board applies a de novo standard of review and is free to draw its own
conclusions from the record, it recognizes that “a hearing officer who has observed the
testimony of witnesses under oath is better positioned than the Board itself to make credibility
determinations based on observational factors, such as the demeanor, manner, or attitude of
witness[es].” (Santa Ana Unified School District (2017) PERB Decision No. 2514, p. 29.) We
accord no deference, however, to those aspects of a credibility determination not based on the
ALJ’s firsthand observations. (State of California (Department of Corrections &
Rehabilitation) (2012) PERB Decision No. 2285-S, pp. 10-11.) Nonetheless, the Board will
normally defer to an ALJ’s findings of fact involving credibility determinations “unless they
are unsupported by the record as a whole.” (Anaheim Union High School District (2016)
PERB Decision No. 2504, p. 14.)
The ALJ’s determination that Howard was a credible witness appears to be based on
both her observation of his testimony at the hearing and the substance of the testimony itself.
Our review of the record reveals no basis to overturn her credibility determination.
First, SEIU contends that Howard was not credible when testifying about the
Department’s decision to pursue a second NOAA in May 2015, because the record evidence
reflected that many of the case issues highlighted in Wilson’s second NOAA occurred in
October 2015. According to SEIU, because the Department printed the case activity records in
October 2015, that is when it decided to take adverse action against Wilson in retaliation for
her continual usage of union leave, and in particular, for the leave request she made on
October 9, 2015.
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This assertion is without merit, as Howard’s notes reflect he started auditing Wilson in
May 2015. In addition, only four of the 13 cases highlighted in the second NOAA reveal case
activity in October 2015; the balance of the cases were all closed, reassigned, or otherwise
processed prior to October 2015. Howard also testified that the Department’s legal division
required him to update the case information contained in the second NOAA each time he
returned a draft to them. Considering that Howard sent the third and final draft of the second
NOAA to the legal division in late October 2015, it is unsurprising that some of the entries
would reflect activity from that month. Thus, the fact that some of the case activity records
supporting the NOAA were printed in October 2015 does not indicate Howard made the
decision to demote Wilson at that time rather than in May 2015.
Second, SEIU argues that the ALJ erroneously accepted Howard’s testimony that there
was no reason to place Wilson on a case management plan given the nature of her policy
violations. In support of its exception, SEIU refers to Wilson’s long tenure with the
Department, her caseload of 600 claims, her 431 case closures during the 2014-2015 fiscal
year, and her overall average quality rating. But the undisputed evidence shows that Wilson
previously had been counseled, placed on an IDP, and disciplined for failing to take
meaningful action before clearing tickles, yet the conduct nonetheless persisted. Thus, the
record supports Howard’s testimony that he did not believe a case management plan would
correct Wilson’s continuing policy violations.
3. 	Disparate Treatment
SEIU also asserts that the record shows the Department treated Wilson disparately. We
disagree. Although Wilson was not put on a case management plan like the other three DEAs
with demonstrated performance issues related to case processing, Wilson’s demotion was
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commensurate with the penalties imposed on the other DEAs: two were also demoted, while
the third was suspended for one year. The evidence thus fails to show that Wilson was treated
less favorably than other DEAs with similar performance issues.
In this same vein, SEIU excepts to the proposed decision’s omission of any discussion
relating to the Department’s claims processing backlog. It argues that it is unreasonable for the
Department to expect claims to be processed in 60 to 90 days given that more than 25% of the
branch’s claims are older than 90 days. SEIU then implies that because processing delays were
common, Wilson’s demotion without receiving a case management plan must have been
unlawfully motivated by her union activity.
We do not find that taking explicit note of the Department’s backlog compels a finding
that the Department demoted Wilson in retaliation for protected activity. Although the
ultimate result of Wilson’s improper tickle clearing was a significant delay in claims
processing, the basis for the demotion was her repeated violations of departmental policy.
That these violations occurred when there was a backlog does not establish that the Department
treated her disparately or that its asserted reasons for discipline were pretextual. We
accordingly find no error in the ALJ’s failure to discuss the Department’s case processing
backlog.
ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-2073-S are
DISMISSED.
Members Banks and Krantz joined in this Decision.
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________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1000,
Charging Party,
v.
STATE OF CALIFORNIA (DEPARTMENT OF
SOCIAL SERVICES),
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-2073-S
PROPOSED DECISION
(June 20, 2017)
Appearances: Daniel Luna, Staff Attorney, for Service Employees International Union
Local 1000; State of California (Department of Human Resources) by Camille K. Binon, Labor
Relations Counsel, for State of California (Department of Social Services).
Before Robin W. Wesley, Administrative Law Judge.
INTRODUCTION
A union alleges that the State employer violated the Ralph C. Dills Act (Dills Act)1
when it demoted an employee because she engaged in protected activity. The employer denies
any violation of law.
PROCEDURAL HISTORY
On March 30, 2016, Service Employees International Union Local 1000 (SEIU or
Union) filed an unfair practice charge against the State of California (Department of Social
Services) (State). On May 5, the State filed a position statement in response to the charge.
On July 15, 2016, the Office of the General Counsel of the Public Employment
Relations Board (PERB or Board) issued a complaint alleging that the Department of Social
1 The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
noted, all references are to the Government Code.

Services (DSS) demoted Carey Wilson (Wilson) in retaliation for serving as a District Labor
Council (DLC) President and taking union leave. The complaint alleges that by this conduct
the State violated Dills Act section 3519, subdivisions (a) and (b).
On August 5, 2016, the State filed an answer to the complaint, admitting some
allegations, denying others, and asserting affirmative defenses.
On September 19, 2016, the parties participated in a PERB settlement conference, but
the matter was not resolved. A formal hearing was held January 24-25, 2017, and the case was
submitted for decision on March 17, after receipt of post-hearing briefs.
FINDINGS OF FACT
The State is the State employer within the meaning of Dills Act section 3513,
subdivision (j). SEIU is a recognized employee organization within the meaning of Dills Act
section 3513, subdivision (b), of an appropriate unit of employees. Wilson is a State employee
within the meaning of Dills Act section 3513, subdivision (c).
The federal Social Security Administration (SSA) contracts with the DSS Disability
Determination Services Division (DDSD) to process disability claims. Once the SSA submits
a claim to DDSD, the goal is to process it within 60 to 90 days. After DDSD makes a
disability determination, the claim is returned to the SSA for review and final processing.
The SSA policy on disability determinations is contained in the Program Operations
Manual System (POMS). The DDSD must develop legally defensible decisions that comply
with the POMS, and provide good customer service by giving claimants unable to work and
needing disability benefits timely determinations.
2

In 1999, Wilson was hired by DSS as a Program Technician II in DDSD. In 2005,
Wilson promoted to Disability Evaluation Analyst (DEA). Wilson’s supervisor from
December 2013 to August 2015 was Unit Manager Jon Howard (Howard).
Wilson and Howard were both appointed DEAs in September 2005, and sat next to
each other during the six-month DEA training class. In October 2009, Howard promoted to
DEA III, serving as professional relations contact for outside consultative medical examination
providers. In December 2011, Howard became a unit manager supervising a team of DEAs,
program technicians, and medical consultants. Wilson was assigned to Howard’s team in
December 2013.
Howard considers Wilson a friend. Before he became a supervisor, he was a SEIU
member. Howard continues to support labor unions and believes Wilson has a right to use
union leave. Occasionally, after Wilson returned from union leave, Howard asked her how
things went. Before he supervised Wilson, Howard once talked with her about her passion for
union work. Howard asked why she hadn’t pursued a full-time position with SEIU. Wilson
responded that State benefits were better than those offered by the Union.
DEAs determine if a claimant qualifies for disability benefits based on a medical and
vocational assessment. Claims are evaluated to determine whether a claimant is precluded
from the type of work they previously performed or precluded from all work.
DEAs process disability claims by opening a case and reviewing the application;
submitting requests for medical records; requesting functional, and vocational evidence from
various sources; reviewing and summarizing the medical, functional and vocational evidence
received; making a disability recommendation; and submitting the case to medical consultants
for review. After the medical consultant review is completed, the case returns to the DEA to
3

review the claimant’s past work and limitations of his/her impairment to make a final
determination on disability before closing the case and returning it to the SSA.
DEAs use three different computer programs to adjudicate and track cases: MIDAS,
E-view, and eCAT. MIDAS organizes the caseload and tracks actions taken on a case.
MIDAS creates a “tickle,” which sets a date or timeframe for completing the next action in the
case. Every open case must have a tickle, setting the next action so the case does not get
“lost.” E-view is the electronic folder where medical and functional evidence is posted. DEAs
use E-view to open and review medical records. DEAs use eCAT to summarize the evidence,
note actions taken or reasons for delays, and record the medical/vocational determinations.
On April 4, 2012, DDSD distributed the policy on Maintaining the Integrity of the
Electronic Folder, which states, in part:
When electronic evidence is received, a tickle is automatically
created. The tickle posts to the Caseload Summary Screen as an
alert that action is needed. The evidence must be reviewed and
appropriate action taken before the tickle is cleared as Completed
(“P’d”) or Not Performed (“Q’d”) to remove it from the Caseload
Summary Screen. Examples of appropriate actions include, but
are not limited to, annotating, bookmarking, categorizing, and/or
adding pertinent findings to the consult or eCAT document,
according to branch procedures. Failure to take appropriate
action in accordance with established Program guidelines prior to
entering a “P” or “Q” on a tickle is a disservice to the claimant.
Any individual who “P’s” or “Q’s” a tickle without taking the
appropriate action may be subject to disciplinary action.
. . . When a case is in the “No Action in 30+ Days” category
because action is overdue, it is expected that staff will give
priority to taking productive action on that case in accordance
with Program guidelines. A productive action is one that moves
the case toward closure. Creating a blank document or editing
the tickle with an entry such as “Needs Review” to remove it
from the “No Action in 30+ Days” category is not a productive
action and is a disservice to the claimant. Any individual taking
a nonproductive action just to remove a case from the “No
4

Action in 30+ Days” category may be subject to disciplinary
action.
[Emphasis in original.]
On May 9, 2012, DDSD distributed the Workload Management policy, which provides
in part:
Once a case has been assigned to a Disability Evaluation Analyst
(DEA), the Division goal is to complete all case actions within
48 hours after the due date. . . .
The Division expectation is that all case actions will be
completed within no more than 5 working days of when they are
due.
Each branch will maintain a branch contingency plan for case
action coverage for staff who are on vacation. . . .
All open cases must have a tickle.
Tickles must not be cleared as Completed (“P’d”) or Not
Performed (“Q’d”) without taking appropriate/meaningful action.
All medical evidence of record (MER) and consultative
examination (CE) reports should be reviewed, categorized,
bookmarked, and summarized within the Division
goal/expectations timelines noted above.
[Emphasis in original.]
On March 15, 2013, DDSD issued a revised Workflow Expectations policy, which
states in part:
This memo details the minimum expectations regarding casework
workflow. . . .
2. Openings must be opened within 48 hours of assignment to
the analyst.
3. All cases must have a tickle.
4. Action must be taken on your two oldest EMMs every day.
5

On August 11, 2014, the updated Workflow Expectations policy was issued, which
added:
5. Tickles must not be cleared as Completed (“P’d”) or Not
Performed (“Q’d”) without taking appropriate/meaningful action.
Wilson acknowledged receiving these policies, stating that the Workflow Expectations
policy must be reviewed and signed annually. In an August 21, 2014 team meeting, Howard
reviewed the August 2014 Workflow Expectations policy, and explained that clearing tickles
without taking appropriate action constitutes fraud and would result in disciplinary action.
Wilson knew it was wrong to clear tickles without taking appropriate action. In a
December 2, 2014 email to Howard, Wilson asked for guidance on a case based on a delay in
requested evidence, stating that, “removing the tickle or moving the tickle could be
misinterpreted as fraudulent activity.”
Each DEA is assigned 2-3 new cases per day, up to 14 cases per week. On average, it
takes 15-20 minutes to open a case and request medical, functional, and vocational evidence.
The goal is to open a case within two business days of assignment. Once a case is opened,
MIDAS generates a 28-day tickle to remind the DEA to follow up and move the case toward
closure. A tickle is also generated when medical records are received, notifying the DEA that
records are available for review. The goal is to review and summarize records within two
business days. Meaningful action to clear a tickle includes reviewing, bookmarking,
highlighting, and summarizing the evidence in eCAT.
At the 28-day tickle, there are three options to move a case toward closure: (1) seek
supplemental evidence; (2) order a consultative examination with an outside medical provider
6

________________________
when the medical records are insufficient to make a determination;2 or (3) write the case up for
review by the team’s medical consultant.
When an outside consultative exam is ordered, DEAs adjust the 28-day tickle to allow
time to receive the report. When the team medical consultant completes a review of the case, a
tickle is created to notify the DEA that the assessment is complete and a final disability
determination should be made.
Each week, MIDAS generates a list of cases where no action has been taken by the
DEA in more than 30 days. Unit managers use the “No Action in 30+ Days” list as a “red
flag” to audit the case. Howard testified that it is “dishonest” to clear a tickle without taking
appropriate action just to remove a case from the 30-day list, and it violates DDSD policy.
When DEAs are absent, cases continue to be assigned for the first two days of an
absence. For example, a DEA on vacation for one week has cases assigned the first two days
of the absence. A DEA out for only two days would continue to have cases assigned during
that time.3
Contingency coverage for an absent DEA is the assignment of other DEAs to work on
the most pressing tickles of the absent DEA. Coverage begins on the first day of a planned
absence and the second day of an unplanned absence, such a sick leave, and is provided every
other day during an absence. DEAs have covered Wilson’s cases during her absences, and
Wilson has provided contingency coverage for other DEAs.
2 DSS pays consultative exam providers to examine a claimant and issue a report.
Because of the cost, DEAs are cautioned against ordering unnecessary consultative exams.
3 DEAs can choose to frontload or backload cases assigned during a planned absence.
Frontloaded cases are assigned before the absence so they can be opened and medical records
ordered; records may be received by the time the DEA returns to work. Cases can also be
assigned at the end of the leave, giving the DEA time to open them within two days of
returning to work.
7

DEAs can request to be assigned overtime “contract” cases in addition to regular case
assignments. Each contract case comes with two and one-half hours of overtime, and must be
completed within 90 days. If a DEA takes 10 contract cases, they are given 25 hours of
overtime to work these cases. Wilson requested contract cases in addition to her regularly
assigned workload.
In 2007, Wilson became a job steward. Between 2008 and 2014, Wilson was a member
of a statewide joint labor-management committee and participated in meetings also attended by
DDSD Deputy Director Eva Lopez (Lopez). In April 2009, SEIU issued recommendations on
disability claim processing, which proposed ending case assignments when DEAs were absent
from work.
In Spring 2015, Wilson was designated DLC President 772. She also served as chair of
the Human Rights Committee and Women’s Committee, and represented SEIU on three other
labor boards.
Wilson has long used union leave. To obtain union leave, SEIU submitted a request to
DSS Labor Relations identifying the specific dates of leave requested for Wilson. DSS Labor
Relations then sent an email to Howard and his supervisors advising of SEIU’s request.
Howard had no role in approving union leave requests for Wilson, but sometimes his
supervisor asked about his staffing needs.
Wilson’s union leave started to increase in 2012, and continued into 2015. In 2012,
Wilson’s union leave was intermittent, a day or two here and there, until Fall when she was on
full-time union leave from November 2012 through March 2013.
8

________________________
After returning to work in March 2013, Wilson’s union leave was intermittent. In
2014, union leave continued to be intermittent until Fall when she was approved for another
long-term leave.
In 2015, Wilson used a total of 172 hours or 21.5 days of union leave.4 Most union
leave was intermittent, ranging from one hour to two days. Two of 22 union leave requests
were denied; four days in February, and a three and one-half month leave request from July to
October.
SEIU’s request that Wilson be granted union leave for October 28-29, 2015, to attend a
special council meeting, was initially denied on October 12. Wilson told her supervisor, Unit
Manager Laura Lindlief,5 that she needed to attend the meeting, but was told to go through
SEIU to get information, not DDSD management. Wilson used vacation leave to attend the
October council meeting. After SEIU contacted the California Department of Human
Resources (CalHR), the union leave request was approved on November 6, and Wilson’s
vacation leave was restored.
In December, two weeks of union leave were approved. Another December request for
over one year of union leave, through January 2017, was denied, but long-term leave from
January 4, through April 29, 2016, was approved.
Shortly after Wilson’s assignment to Howard’s team in December 2013, he periodically
sent her email noting specific case deficiencies and delays, and providing direction to move
cases toward closure.
4 During 2015, Wilson also reported 166.5 hours or 20.8 days of sick leave, and
150.5 hours or 18.8 days of vacation leave. Including union leave, Wilson was on leave for at
least 61.1 days in 2015.
5 In August 2015, Howard was promoted to Branch Training Coordinator, responsible
for DEA training and assisting struggling DEAs.
9

________________________
On July 21, 2014, Wilson received an Individual Development Plan (IDP), prepared by
her previous supervisor, Jeanne Driscoll (Driscoll).6 The IDP noted that Wilson maintained a
92.4% accuracy rate. Howard explained that this is an average accuracy rate for DEAs.
The IDP described areas of improvement needed, and identified as major issues:
(1) tickles were cleared with no action taken; (2) entries referencing an action were made
before the action was taken; and (3) completion of actions without making MIDAS entries
resulted in 30+ day no action entries reflecting unnecessary case delays and poor customer
service. The IDP provided specific case examples of tickles cleared without taking action,
medical records not reviewed, cases not opened within timelines, tickles changed without
meaningful action taken, and entries made for actions not completed.
On August 22, 2014, Howard counseled Wilson about her work performance. Wilson’s
case statistics showed she had the highest number of pending cases, and her progress to
become current was slow. Wilson had nearly half of her contract cases remaining, but had
used over 75 percent of authorized overtime to work the cases. To assist her, Howard assigned
other DEAs to work on 17 of Wilson’s cases over the prior month. Howard also identified
examples of tickles being cleared without appropriate action taken, and stressed that it violated
policy. They also discussed a plan to continue working on some of the oldest cases while
maintaining progress on current cases.
Despite several communications with Wilson, Howard noticed that she continued to
clear tickles inappropriately. After Howard discussed the matter with his supervisor, they
decided the policy violation was so significant that further action was necessary. Howard
6 Testimony about a statement made by Driscoll is hearsay for which no exception
applies. Therefore, the statement cannot be considered.
10

audited Wilson’s cases, identified the most egregious cases, and drafted a Notice of Adverse
Action (NOAA).
The NOAA, signed by Deputy Director Lopez and given to Wilson on November 10,
2014, reduced her salary by five percent for four months. The NOAA provided the 12 most
egregious examples of policy violations. In 11 cases, Wilson cleared tickles without taking
meaningful action. In one case, Wilson put a notation in the case record to remove it from the
30+ day no action list, but did not take meaningful action. As a result, delays in the cases
ranged from 16 to 85 days.
Howard explained that Wilson’s improper clearing of tickles was not a training issue,
but rather a deliberate action to clear a tickle when the work had not been completed.
Improperly clearing tickles without taking meaningful action caused delays which harmed
claimants needing disability benefits. Howard testified that the NOAA imposed a very minor
penalty, hoping it would stop Wilson from taking improper action on tickles. The NOAA was
settled in January 2015, reducing the penalty to a five percent salary reduction for two months.
Howard continued to monitor Wilson’s caseload, periodically sending her email
between December 2014 and August 2015, which identified delayed case openings, documents
available to review, and cases ready to close. On May 1, 2015, Howard asked Wilson to attend
a “tune-up” training session to assist her with case management. In July 2015, Howard
assigned other DEAs to work on Wilson’s cases to give her time to catch up on her oldest
tickles and case openings.
In March 2015, Howard noticed another pattern of Wilson improperly clearing tickles.
He started auditing Wilson’s cases again. Howard and his supervisors considered putting
Wilson on a case management plan but concluded there was no corrective action plan for the
11

________________________
policy violation except to stop clearing tickles inappropriately. In May, Howard and his
supervisors decided to impose further adverse action.
Howard continued auditing Wilson’s cases, completing the first draft of the adverse
action in July 2015. The concerns addressed in the new NOAA were exactly the same as the
issues in the November 2014 NOAA. The draft was reviewed by DSS Legal and returned for
additional information in late August 2015. A second draft was sent to Legal in September,
and a third and final draft was reviewed and returned in October. On October 29, Howard and
his supervisors signed a formal request to DSS management to issue the NOAA to Wilson.
On December 31, 2015, Wilson was issued a NOAA, signed by Deputy Director Lopez,
demoting her from a DEA to a Program Technician II. The NOAA summarized the 13 most
egregious examples of policy violations. The NOAA described numerous examples of clearing
tickles without taking meaningful action, delays in opening cases, untimely requests for
records and review of records, reporting actions taken before the actions were completed,
adjusting a tickle without taking the noted action, and ordering unnecessary consultative
medical exams. The actions resulted in the delay of final disability determinations by two to
six months.
Wilson appealed the demotion to the State Personnel Board (SPB). After an
evidentiary hearing, SPB upheld the demotion.
SEIU Resource Center Coordinator Tracy Peake (Peake) maintains records of adverse
actions received by members. Peake provided copies of NOAAs received by three DEAs.7
The primary concerns in these NOAAs were untimely actions, lack of knowledge of program
requirements, failure to recognize issues and apply policy/program criteria, and inability to
7 Neither the employees nor their supervisors testified about the conduct described in
the NOAAs. None of the three DEAs served as job stewards.
12

________________________
work independently. The NOAAs concluded that this conduct resulted in significant delays in
making disability determinations and case management issues. In contrast, although the
NOAAs issued to Wilson noted delays in case processing, the primary focus in both of her
NOAAs was the clearing of tickles without taking appropriate action.
On January 6, 2012, Deborah Lawson (Lawson) received a NOAA demoting her from a
DEA to a Program Technician II. Lawson was previously placed on a caseload management
plan, and a merit salary adjustment (MSA) and range change were denied.8
On December 5, 2012, Sally Bill (Bill) was issued a NOAA demoting her from a
DEA III to a DEA for six months. The NOAA identified one incident of clearing a tickle
without taking appropriate action. Prior to receiving the NOAA, Bill’s MSA was denied in
2010 and 2011, and she was placed on two case management plans.
On May 28, 2014, Bill received a second NOAA, demoting her from DEA III to
Program Technician II. Bill was not placed on a case management plan prior to receiving this
NOAA.
On August 12, 2013, Roberto Pena (Pena), a DEA III, was issued a NOAA imposing a
one-year suspension. The NOAA reported one incident of clearing a tickle without reviewing
records. Pena’s supervisor implemented two case management plans, but he was not denied an
MSA.
8 Howard never granted or denied Wilson an MSA because she was at the top step of
the pay range and was not eligible for further MSAs.
13

ISSUE
Did the State demote Wilson in retaliation for serving as a DLC President and taking
union leave?
CONCLUSIONS OF LAW
State employees have the right to “form, join, and participate in the activities of
employee organizations of their own choosing.” (Dills Act, §3515.) The State employer
violates this right when it imposes reprisals on employees because of their participation in
protected activities. (Dills Act, §3519, subd. (a).)
To demonstrate a prima facie case of retaliation in violation of Dills Act section 3519,
subdivision (a), a charging party must show that: (1) the employee exercised rights under the
Dills Act; (2) the employer had knowledge of the exercise of those rights; (3) the employer
took adverse action against the employee; and (4) the employer took the action because of the
exercise of those rights. (Novato Unified School District (1982) PERB Decision No. 210.)
Protected Activity
Serving as a union officer demonstrates participation in protected activity. (Santa
Clara Valley Water District (2013) PERB Decision No. 2349-M [union officer, joint labor-
management committee member]; Klamath-Trinity Joint Unified School District (2005) PERB
Decision No. 1778 [chapter president, bargaining team member, job steward]; Oakdale Union
Elementary School District (1998) PERB Decision No. 1246 [union president]; Healdsburg
Union High School District (1997) PERB Decision No. 1185 [chief negotiator].)
The record contains ample evidence that Wilson participated in protected activity. In
2015, Wilson was designated as DLC President. She also participated in numerous union
14

board meetings and organizing activities, and was a member of a statewide joint labor-
management committee between 2008 and 2014.
Taking union leave to participate in union activities is also protected. (City & County
of San Francisco (2004) PERB Decision No. 1664-M.) Wilson has long used union leave to
participate in activities as a union officer. Her union leave began increasing in 2012, for
periods as short as one hour, up to a five month union leave from November 2012 through
March 2013.
Employer Knowledge
To establish retaliation for protected activity, the employer must know that the
employee engaged in protected activity. (Sacramento City Unified School District (1985)
PERB Decision No. 492.) Howard admitted that he knew Wilson was a union officer. On
occasion, Howard asked Wilson about her union activities. In addition, Deputy Director
Lopez, who signed both of Wilson’s NOAAs, attended the joint labor-management committee
meetings in which Wilson participated between 2008 and 2014. Thus, Lopez was also aware
of Wilson’s service as a union officer.
Howard and his supervisors also knew of Wilson’s union leave. They received email
from DSS Labor Relations each time SEIU submitted a request for union leave for Wilson.
Accordingly, the State was aware that Wilson was a union officer and used union leave to
participate in union activities.
Adverse Action
The Board uses an objective test to find adverse action and will not rely upon the
subjective reactions of the employee. (Palo Verde Unified School District (1988) PERB
15

Decision No. 689.) In Newark Unified School District (1991) PERB Decision No. 864, the
Board explained:
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.
A demotion has been found to be an adverse action because it has an adverse impact on
an employee’s employment. (Regents of the University of California (1983) PERB Decision
No. 310-H.) Wilson’s disciplinary demotion from a DEA to a Program Technician II is an
adverse action.
Unlawful Motivation
Finally, a charging party must show that the employee’s protected activity was a
motivating factor in the employer’s decision to impose adverse action. (Carlsbad Unified
School District (1979) PERB Decision No. 89; Omnitrans (2010) PERB Decision No. 2121-
M.) In the absence of direct evidence, an inference of unlawful motivation may be drawn from
circumstantial evidence in the record. (Carlsbad Unified School District, supra, PERB
Decision No. 89.)
Although the timing of the employer’s adverse action in close temporal proximity to the
employee’s protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
“nexus” between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer’s disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
16

employer’s departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the
employer’s inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer’s
cursory investigation of the employee’s misconduct (City of Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer’s failure to offer the employee justification at the time it took action (Oakland
Unified School District (2003) PERB Decision No. 1529) or the offering of exaggerated,
vague, or ambiguous reasons (McFarland Unified School District (1990) PERB Decision
No. 786); (6) employer animosity towards union activists (Jurupa Community Services District
(2007) PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986)
PERB Decision No. 572); or (7) any other facts that might demonstrate the employer’s
unlawful motive (North Sacramento School District, supra, PERB Decision No. 264; Novato
Unified School District, supra, PERB Decision No. 210).
Wilson was designated DLC President in Spring 2015, and continually used union
leave throughout 2015. She was issued the NOAA in December 2015. The NOAA was issued
while Wilson continued to use union leave for her work as DLC President. Thus, Wilson’s
protected activity was in close temporal proximity to the adverse action.
SEIU contends that nexus is established by the unreasonable processing of Wilson’s
union leave requests and failure to properly provide coverage during Wilson’s leave. SEIU
asserts that union animus is demonstrated by Howard suggesting that Wilson should leave to
work for the Union. SEIU also argues that Wilson was treated differently than other DEAs
who were not union officers.
17

________________________
Wilson has used union leave for a number of years, and several leave requests were
approved for long-term leave up to five months. In 2015, two of 22 union leave requests were
denied. SEIU does not contend that the denial of these two leave requests demonstrates
unlawful motivation. Rather, SEIU points to a single request for union leave on October 28-
29, which was initially denied. After SEIU contacted CalHR, the leave request was approved
and Wilson’s vacation leave was restored. Although the approval of union leave was delayed,
the leave was eventually granted. Wilson was not harmed by the delay because she attended
the union meeting and her vacation leave was restored. The delay in granting a single leave
request does not establish nexus.
SEIU contends that the initial denial of the October 28-29, 2015 leave is suspicious
because Howard and his supervisors signed the formal request to issue the NOAA on
October 29, the same day that Wilson was on the disputed leave. However, the leave request
was denied on October 12, before the formal request to impose discipline was signed.
Furthermore, Howard and his supervisors made the decision to issue the NOAA in May, with
the first draft completed by July. The October 29 request to impose discipline was the final
step before issuing the NOAA. Thus, the timing of the final step in imposing discipline at the
same time Wilson was out on the initially denied union leave does not demonstrate unlawful
motive.9
9 SEIU contends Howard’s testimony is not credible because he could not remember
when he printed final caseload summary reports related to Wilson’s NOAA, and he did not
know that the SSA Office of the Inspector General issued a report in May 2015 on case
processing times for each State. I find Howard’s testimony to be credible. His answers were
clear and comprehensive, he demonstrated a thorough knowledge of the case review process,
and his understanding and memory of the cases summarized in Wilson’s NOAAs was
complete. His testimony and demeanor did not demonstrate animosity toward Wilson.
18

SEIU also contends that the assignment of cases on the first two days of an absence
demonstrates a failure to properly provide coverage for Wilson’s use of union leave. Since
2009, SEIU has sought to end the practice of assigning cases on days that a DEA is absent
from work. Notwithstanding SEIU’s desire for change, the policy applies to all DEAs and all
types of absences, vacation, sick leave, and union leave. Thus, the evidence does not
demonstrate that Wilson was treated differently than other employees when cases continued to
be assigned on the first two days of an absence.
SEIU also argues that union animus was established when Howard asked Wilson why
she didn’t go to work for the Union.
Outward expressions of animus toward the union or protected activity may provide
evidence of unlawful motive. However, statements must be interpreted in their proper context.
(Rio School District (2015) PERB Decision No. 2449.) The standard is whether a reasonable
person under the same circumstances would understand the comments to demonstrate union
animus. (Garden Grove Unified School District (2009) PERB Decision No. 2086.)
Howard supports unions, and believes Wilson has a right to use union leave. On
occasion, after she returned from union leave, Howard asked how things went. Once, before
he began to supervise Wilson, Howard talked with her about her work with the Union. At the
time, Wilson was a job steward and served on the labor-management committee, but was not
yet serving as DLC president. Howard noted her passion in working for the Union, and asked
why she didn’t pursue full-time work with SEIU.
In the context that this statement was made, there is not the slightest hint of union
animus. The conversation occurred before Howard supervised Wilson. Howard was interested
in Wilson’s union work, and suggested she would be an asset to the Union. A reasonable
19

person would find the comment supportive of Wilson’s advocacy on behalf of the Union.
Howard’s comment does not demonstrate union animus.
Finally, SEIU asserts Wilson was treated differently than other DEAs because she was
not first denied an MSA and given a case management plan before adverse action was
imposed.
The denial of an MSA was not an option. Wilson was not eligible for further MSAs
because she was at the top step of her pay range. Thus, the failure to deny Wilson an MSA
before issuing the NOAA does not demonstrate disparate treatment.
Three other DEAs were placed on case management plans. Lawson was placed on one
case management plan, and Bill and Pena were placed on two case management plans, before
NOAAs were issued to them. Bill was not given a case management plan before receiving the
second NOAA. The case management plans directed the DEAs to focus on certain types of
actions such as the oldest cases, or complete a number of specific actions each day.
In August 2014, Howard counseled Wilson about her work performance. Wilson had
the highest number of pending cases and her progress was slow. Howard also noted that
Wilson cleared tickles without taking appropriate action and stressed that it violated policy.
Howard also discussed a plan with Wilson, directing her to continue working on some of the
oldest cases while maintaining progress on current cases although he did not identify this as a
case management plan. Wilson was issued the first NOAA in November 2014.
In March 2015, Howard noticed that Wilson continued to clear tickles inappropriately.
Howard and his supervisors considered putting Wilson on a case management plan but
concluded there was no corrective action plan for the deliberate violation of policy except to
stop improperly clearing tickles.
20

The State contends that the conduct leading to discipline for Wilson was different than
that of the other DEAs, and a case management plan would not stop Wilson’s continued policy
violations.
The focus on Wilson’s conduct in improperly clearing tickles was slightly different
than the other DEAs. Some deficiencies described in her NOAA, however, were similar, such
as ordering unnecessary consultative exams and delays in opening cases and reviewing
records.
The other DEAs were charged with lack of knowledge of program requirements, failure
to recognize issues and apply policy criteria, inability to work independently, and untimely
actions. Although the focus of the other DEA’s NOAAs was different than Wilson’s, the
overall impact in all was the same – significant delays in processing claims.
There is no evidence that a progressive discipline policy requires a case management
plan before discipline is imposed. Other DEAs with significant case delays, were given case
management plans to assist them with case processing before discipline was imposed. That
Wilson did not first receive a case management plan for some of the same conduct causing
delays in case processing suggests disparate treatment. Although slight, evidence of nexus is
present and a prima facie case of retaliation is established.
State’s Burden
Once the charging party establishes a prima facie case of retaliation, the burden shifts to
the employer to prove it would have taken the same adverse action even if the employee had
not engaged in protected activity. (Novato Unified School District, supra, PERB Decision
No. 210; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.
721, 729-730; Wright Line (1980) 251 NLRB 1083.) When it appears that the employer’s
21

adverse action was motivated by both lawful and unlawful reasons, “the question becomes
whether the [adverse action] would not have occurred ‘but for’ the protected activity.”
(Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal. 721, 729-
730.) The “but for” test is “an affirmative defense which the employer must establish by a
preponderance of the evidence.” (McPherson v. Public Employment Relations Bd. (1987)
189 Cal.App.3d 293, 304.) When conducting the “but for” analysis, the proper inquiry is
whether the employer’s true motivation for taking the adverse action was the employee’s
protected activity. (Regents of the University of California (1993) PERB Decision No. 1028-
H.) The employer must show that it had an alternative non-discriminatory reason for imposing
the adverse action and that it acted because of this alternative non-discriminatory reason, not
because of the employee’s protected activity. (Palo Verde Unified School District (2013)
PERB Decision No. 2337.)
The State provided ample evidence to prove it would have taken the same action even if
Wilson had not engaged in protected activity. In July 2014, Wilson’s IDP described areas of
needed improvement, including directing Wilson to stop clearing tickles without taking action.
The first NOAA issued in November 2014 disciplined Wilson for improperly clearing tickles.
Howard hoped the “minor penalty” would correct Wilson’s behavior and stop her from
clearing tickles before taking appropriate action.
Howard continued to monitor Wilson’s cases. In March 2015, he observed that Wilson
continued to clear tickles without performing the required action.
DDSD policy specifically highlighted that improperly clearing tickles could result in
discipline. Wilson was aware of this policy. She testified that DEAs were required to review
22

and sign the policy annually. She also admitted in a December 2, 2014 email to Howard that
adjusting a tickle without performing the work was “fraudulent activity.”
Before receiving the December 2015 NOAA, Wilson was given assistance and many
opportunities to stop violating this policy. She was counseled about improperly clearing
tickles, and Howard gave her a plan to manage her caseload. Other DEAs were assigned to
work on her cases, she received additional training on caseload management, and was
eventually given minor discipline so she would stop clearing tickles improperly. But Wilson
continued to clear tickles in violation of policy. The impact was a significant delay in case
processing, and the ultimate harm was a delay in benefits to claimants unable to work.
Wilson was not the only DEA disciplined for delays harming claimants. Other DEAs
with case management issues received similar discipline. Lawson and Bill were demoted, and
Pena received a one-year suspension.
Union activists are not guaranteed “a right to be insulated from non-discriminatory
personnel actions.” (Los Angeles Unified School District (2016) PERB Decision No. 2479,
Proposed Decision, p. 33.) The State attempted to stop Wilson’s policy violations with
progressive discipline, including counseling, assistance, training, and a minor NOAA. When
Wilson continued to violate policy, the State took the next step, imposing the demotion. The
harm to claimants was significant, and the State’s prior corrective actions were ineffective in
bringing an end to the policy violations. Therefore, the State has established by persuasive
evidence, that it had, and acted because of, an alternative non-discriminatory reason when it
demoted Wilson, and not because she served as a union officer or took union leave.
23

PROPOSED ORDER
Based on 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. SA-CE 2073-S,
Service Employees international Union Local 1000 v. State of California (Department of
Social Services) are hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision
and Order shall become final unless a party files a statement of exceptions with the 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
24

25
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
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)