Los Rios Community College District (PERB 1631E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ANNETTE (BARUDONI) DEGLOW,
Charging Party,
V.
LOS RIOS COMMUNITY COLLEGE DISTRICT,
Respondent.
Case No. SA-CE-2037-E
PERB Decision No. 	1631
May
	18,
	2004
Appearance: Langenkamp & Curtis by Carolyn Langenkamp, Attorney, for Annette
(Barudoni) Deglow.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Annette (Barudoni) Deglow (Deglow) to the proposed
decision (attached) issued December 22, 2003, by the administrative law judge (ALJ).
The Board has reviewed the entire record in this case, including the proposed decision
and Deglow' s exceptions. 1 The Board finds the ALJ' s findings
of
fact and conclusions
of
law
to be free
of
prejudicial error and adopts them as the decision
of
the Board itself.
1A letter of support for Deglow was submitted by a third party. 	The Board will treat
this as a request to submit an informational brief pursuant to PERB Regulation 32210. 	(PERB
regs. are codified at Cal. Code Regs., tit. 8, sec. 31001, et seq.) However, the Board finds that
the record and brief in this matter adequately present the issues and positions of the parties.
Accordingly, the request to submit an informational brief is denied.

ORDER
The unfair practice charge in Case No. SA-CE-2037-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members "Whitehead and Neima joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ANNETTE (BARUDONI) DEGLOW,
Charging Party,
V.
LOS RIOS COMMUNITY COLLEGE DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-2037-E
PROPOSED DECISION
(12/22/03)
Appearances: 	Langenkamp & Curtis, by Carolyn Langenkamp, Attorney, for Annette
(Barudoni) Deglow; Johnson Schachter & Collins, by George W. Holt, Attorney, and Margaret
Hosel, Legal Assistant, for Los Rios Community College District.
Before Allen R. Link, Administrative Law Judge.
PROCEDURAL HISTORY
Annette (Barudoni) Deglow (Deglow) is a mathematics instructor at Sacramento City
College (SCC) which is a part of the Los Rios Community College District (District). 	She
alleges that due to her protected activities the District took various negative personnel actions
against her, i.e., (1) changing her teaching assignment from Mathematics 52 (Geometry) to
Mathematics 51 (Algebra), and (2) unilaterally modifying her voice accommodation program
by the elimination of (a) the "no voice" period and (b) 10- to 15-minute vocal rest period, for
each hour of lecture.
The District insists that its actions were supported by educational justifications and that
Deglow's protected activities had nothing to do with its actions. It also contends that the
charge is barred by the six-month statute of limitations.

PROCEDURAL HISTORY
On June 22, 2001, Deglow filed an unfair practice charge (UPC) with the Public
Employment Relations Board (PERB or Board) against the District. The charge alleged
various violations
of
the Educational Employment Relations Act (EERA or Act). 1
On .August 2, 2001, the general counsel
of
PERB, after an investigation
of
the charge,
issued a complaint alleging violations
of
subdivision (a)
of
section 3543.5.2
On September
6,
2001, the District answered the complaint denying all material
allegations and propounding various affirmative defenses. On January 30, 2002, the charging
party filed a first amended UPC. On August 22, 2002, a second amended UPC was filed.
An informal conference was held on September
7,
2001, in an unsuccessful attempt to
reach a voluntary settlement. Six days
of
formal hearing were held before the undersigned on
September 17,
18
and 19, October 29, 30 and 31, 2002. During the formal hearing a motion to
amend the complaint was made by the charging party. After a discussion
of
the matter
between the parties, the motion was granted and on the last day
of
hearing, October 31, 2002,
an amended complaint was approved and signed by the undersigned. At the conclusion
of
the
1 All section references, unless otherwise noted, are to the Government Code. The
EERA is codified at section 3540 et seq.
2 Subdivision (a)
of
section 3543.5 states:
It shall be unlawful for a public school employer to do any
of
the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
2

hearing transcripts were prepared and briefs were filed. 	The case was submitted for a proposed
decision on December 1, 2003.
FINDINGS OF FACT
Jurisdiction
The parties stipulated, and it is therefore found, that the charging party is a public
school employee and the respondent is a public school employer, within the meaning of the
Act.
Background
On July 1, 1965, as a result of a general population election, the Los Rios Junior
College District assumed the operation of the American River College (ARC) and SCC. ARC,
at that time, was an independent operating junior/community college district. Sacramento
Junior/City College, however, had been a part of the Sacramento City Unified School District
(SCUSD) since 1916. Through this merger Deglow became an employee of the new district,
which was renamed Los Rios Community College District in 1970.3
Deglow began her part-time evening employment at SCC as a mathematics instructor in
1964. At the time she was also a full-time mathematics teacher at a SCUSD middle school
during the regular school day.
Deglow's CTA Advocacy
There is no doubt that Deglow engaged in protected activities. When SCC was first
established Deglow advocated an affiliation with the California Teachers Association (CTA),
as opposed to the California Federation of Teachers (CFT). After CFT became the District's
faculty representative, Deglow adopted an adversarial role with the local CFT chapter, the
3 Administrative notice is taken of public information in PERB's files.
3

Los Rios College Federation
of
Teachers (LRCFT). Although she had every right to do so, this
role did not endear her to some
of
her colleagues.
Pre-1965 Instructor Tenure Conflict
Deglow, along with a number
of
other pre-1965 part-time instructors, engaged in a
series
of
protracted and partially successful battles with the District over various employment
rights. On December 22, 1992, they received a Third District Court
of
Appeal decision
retroactively granting them tenure at their respective part-time levels.
Library Demolition Conflict
In the early 1990's the District decided to raze the existing SCC library and build a new
media center on the site. The issue created a protracted conflict with heightened sensitivities
among the District and local civic groups. The latter insisted the existing building had
historical and architectural significance. Law suits were filed in an attempt to prevent the
building's demolition. On March 25, 1996, the Third District Court
of
Appeal issued a
decision upholding the District's decision to demolish its library. Deglow was identified on
page fifteen
of
that decision as "the leading faculty opponent
of
demolition."
Discrimination Complaint Filed with Chancellor's office
In January 1993, Deglow filed an "Unlawful Discrimination" complaint with the
California Community College Chancellor's office alleging a lack
of
District support for the
continuation
of
her disability accommodation program, as approved and implemented during
the fall semester
of
1992. (Seep. 10 et seq. for a description ofDeglow's disability.)
Physical Disability Discrimination Complaint in Superior Court
On May 8, 2000, after a grievance to prevent her reassignment from Geometry to
Algebra proved unsuccessful, Deglow sued the District for damages, naming as individual
defendants SCC employees, Suzanne Chock Hunt (Hunt), Linda Wack, Dr. Alice Murillo
4

(Dr. Murillo), Ronald Hatton (Hatton), Lori Maloney (Maloney), William Silvia, and Herschel
Smith. Her Superior Court suit alleged retaliatory employment discrimination with regard to
her physical disability. The suit included many
of
the same allegations contained in the instant
unfair practice charge.
Employment Based Legal Actions
Deglow's conflicts were not restricted to the District and its employees. They also
included the faculty's exclusive representative, the LRCFT. In one action, Deglow was
instrumental in requiring the LRCFT to repay almost $47,000 to the District. This repayment
was based on her allegation the District inappropriately subsidized the LRCFT.
From 1977 to the present Deglow has filed at least
63
grievances, 25 PERB UPCs
against LRCFT, 8 UPCs against the District, 4 complaints with the Department
of
Fair
Employment and Housing (DFEH) against the District, and has been either directly or
indirectly involved in an undetermined number
of
Superior Court lawsuits, in addition to the
physical disability discrimination suit described, supra. Most
of
these actions were filed after
1989.
On three separate occasions, the District has petitioned PERB to require Deglow to pay
its attorneys' costs with regard to various actions she has brought against it, citing an excessive
number
of
charges filed by her as justification for such requests.
Classroom Abilities
From the time
of
her initial hiring to 1977, Deglow taught whatever classroom
assignments were given to her. However, in 1977 she was told that henceforth she would be
limited to Algebra and Geometry. From 1977 to 1991 Deglow taught Beginning and
Intermediate Algebra exclusively. In the fall of 1991 she began teaching Geometry. She
5

continued with Geometry exclusively until 1998. She did not teach at all in the fall of 1998
and has been teaching Algebra exclusively since that time.
A number of academicians testified and/or submitted declarations in Deglow's behalf
with regard to her classroom skills. Among these witnesses were (1) Ann Schafer, Ph.D.
(Dr. Schafer), a licensed clinical psychologist; (2) Thomas J. Adams, Ph.D. (Dr. Adams)
professor Emeritus of Economics and Business, who taught at SCC from 1965 to 1999;
(3) Clyde E. Kidd (Kidd), SCUSD administrator and teacher from 1959 to 1992; (4) Christoph
Hulbe (Hulbe), SCC astronomy and geology instructor since 1969; (5) Earl W. Boynton
(Boynton), SCUSD physics and chemistry teacher from 1968 to 1996; (6) SCC instructor
Donald B. Kent (Kent), a pre-1964 instructor; (7) Elmer (John) Sander, ARC instructor with
40 years teaching experience; and another pre-1964 instructor; (8) Dr. Wang Ng, a SCC
electronic instructor, (9) Melvin Duval, SCC electronic instructor, and (10) Lance Bernath, an
ARC mathematics instructor with 36 years District experience. They all testified and/or
submitted declarations, from various points ofreference, that Deglow's classroom materials
and/or teaching abilities were exemplary.
Dr. Schafer
Dr. Schafer is a reading and learning disabilities specialist. She has been SCC's
Leaming Specialist Program Coordinator for the past 15 years. Her career has focused on
learning strategies and the development of various methods ofleaming effectively. She
specializes in both teaching teachers and teaching students. She uses a (Meyers-Briggs)
system of grading various SCC instructors on eight separate and distinct instructional
categories. When she conducts an instructor observation she rates each category separately. If
an instructor's presentation is low in any of the eight categories, she brings these areas to
6

his/her attention and they collectively develop an approach to expand the instruction into that
area.
Deglow came to her in the spring of 2000 to obtain assistance to better address her
students' needs. Dr. Schafer formally observed Deglow's Algebra classroom one time in 2000,
but has informally stopped in several other times. 	She said that Deglow's has "a very smooth
delivery, very high-quality delivery, and one that I thought most of the students that were
struggling could learn from." She concluded that Deglow was not deficient in any of the eight
categories described above.
One validation of the methods that Dr. Schafer observed was Deglow's high student
retention rate.4 She believes this an excellent barometer of how well the instructor is doing in
the classroom.
Dr. Schafer looks at a teacher's skills from various perspectives, i.e., the special needs
student, teacher's style, and the general student teaching style. Dr. SchaJer believes that
Deglow addresses the subject matter effectively to all types of students. Although she only
observed Deglow's Algebra class, she believes that teachers' styles are pretty consistent, but
admits there are some differences between subjects. Dr. Schafer reviewed Deglow's Geometry
materials and study guides and determined that they provided the same types of learning
modalities that she (Dr. Schafer) saw manifested in her Algebra lectures.
She believes that Deglow is "as good or better, and probably better than most of the
teachers I've observed teaching math at City College."
She is not a social acquaintance of Deglow.
4 A student retention rate refers to the percentage of an instructor's incoming students
that actually remain throughout the term and complete the course with a passing grade.
7

Dr. Adams
Dr. Adams, who has a doctorate in Educational Marketing, a combination of
educational and marketing theory, retired from the District in 1999. He compared Deglow's
Geometry materials with the textbook and the objectives of the course. He found her work to
be of superb quality. He noted that her materials acknowledge the short attention span of
today's students. She used various methods to reach them, i.e., motor activity, kinetic activity,
logic, visual plus lectures and slides. He states that her material "flowed beautifully." He has
never taught math, nor has he ever visited her classroom.
He acknowledges a personal social relationship between himself and his wife and
Deglow and her husband. However, he prides himself on being a professional and does not
believe their friendship has anything to do with his opinion of her educational abilities.
Kidd
Kidd has a B.A. and master's degree in school administration as well as a total of
40 years as a teacher and a school administrator at the K-12 level. He reviewed Deglow's
Geometry textbook and curriculum description, as well as her course materials, i.e., visual,
quizzes, tests, etc. He believes that her materials reflected good teaching strategies. He has
never been in her classroom.
He characterizes his relationship with Deglow as friendly, consisting of no more than
talking to her on the phone a number of times and chatting if they see each other at a local
coffee shop. He first met Deglow and her husband when he was the principal of a school
attended by their children.
Hulbe
Christoph Hulbe, who has a B.A. in geology and a M.S. in.mineralogy from Penn State,
has been a SCC physics instructor since 1969. He has occasionally taught math; and had an
8

assignment as SCC's media director at one time. He has been a colleague of Deglow's for a
long time. He recently took a Power Point class with her.
He reviewed Deglow's slides, workbook and Power Point Algebra presentation. He
believed they were of a very high quality and were very thorough, setting forth a step-by-step
process. No step was so big a student could not follow. 	He noted she uses writing,
observation, and hearing in her presentation. He has never visited Deglow's classroom.
Boynton
Boynton has a Bachelor of Science in chemical engineering. He was a senior
development engineer at Aerojet. He taught math, chemistry, and physics at Hiram Johnson
and Rio Americana high schools in Sacramento for twenty-eight years. He looked at SCC's
curriculum document and compared it to the Geometry materials Deglow was using, i.e.,
overhead transparencies, outlines, student handouts, plus other materials, binders, folders and
boxes available to her students if they needed additional help. He said, "I have never seen as
extensive material as Ms. Deglow had for her class." He said he was amazed.
He was surprised by the lack of substance or depth in SCC's curriculum document, i.e.,
two pages in length. He did not visit her classroom.
Dean Haro
In addition to the above, a letter, written by Dean Richard T. Haro (Dean Haro),
was entered into evidence.
Dean Haro was the dean of SCC's mathematics/science/engineering division from 1983
to 1992. In a May 21, 1998, letter (to be described and quoted at length, infra, on pp. 14-16)
he made the following comments regarding Deglow's instructional capabilities:
During my tenure as Dean ... my observation of her classroom
instruction was that she was always organized and maintained an
excellent learning environment for her students. She was very
effective in her use of instructional aids in her classroom
9

presentation and always sensitive to her students needs. Of
significance is the fact that student, faculty and administrative
evaluations of Mrs. Deglow's instruction conducted prior to my
evaluations as Dean ... reflect the same basic observations.
Deglow's Physical Disability
In December of 1981 Deglow learned that she had developed vocal nodules. In order to
combat them she participated in a year of voice therapy and began to use a wireless
microphone in the classroom. She filed a workers' compensation claim and eventually
received a partial disability award. As a part of that award the District was directed to make
reasonable accommodation for her disability. By 1984 the nodules had dissolved and although
they have never returned, she has incurred a number of inflammations that placed her on the
edge of reoccurrences.
Her disability accommodation plan consists of a classroom voice amplification system
along with the use of visual aids that permit her to speak less, thereby putting less pressure on
her voice. In addition, the District agreed to modify her class schedule to permit her to have a
10- to 15-minute "no-voice" break in each class session.
In 1992 the Workers' Compensation Appeals Board issued its finding and award
requiring an accommodation program for Deglow. The accommodation program she has
developed, which has been in operation since the fall 1991 semester, included 1,200 thirty-five
millimeter slides, 300 overhead transparencies, and 7 workbooks which encompassed a total of
375 pages. She estimates that she spent 800 to 900 hours_developing these materials.
On March 1, 1993, Mary Jones (Jones), the District personnel services director and
ADA compliance officer, wrote:
Ms. Deglow has requested an accommodation for her
documented worker's compensation disability. The
accommodation requested is the teaching of a class using
materials designed to provide vocal relief. 	She stated that she

has already prepared materials in geometry which fully
provide her the accommodation that she perceives is necessary.
,I ... it should not be difficult to meet her request for
accommodation ....
Dean Haro also confirmed that Deglow and the District had entered into an agreement
by which she" ... could continue to teach the course [Geometry] in the evenings so long as the
program continued to facilitate her disability."
After extensive investigation by her doctors and speech therapists, it was determined
that teaching Geometry would cause less stress on her voice than Algebra.
Retention of the Geometry assignment, along with the materials she developed in
conjunction with this class, is important because it is an integral part of Deglow's voice
accommodation program. The District was aware of and has acknowledged this since at least
1991.
In 1998, her physician put the District on an additional notice of her need for an
accommodation program when he stated, "Failure to allow this accommodation could result in
re-development of vocal nodules and possible permanent vocal disability."
Allegations of Hostility
From the early 1980s through the present time Deglow has been the recipient of various
negative comments from both peers and members of the administration over her various
grievances, lawsuits, and PERB UPCs. Some of these incidents are set forth below.
Meredith
On December 12, 1992, SCC mathematics Instructor Rodney Meredith (Meridith), in
front of mathematics department peers in a common area, immediately before a mathematics
department meeting, aggressively told Deglow that she should resign because of her disability-
required special accommodation(s). He continued with a statement that everyone in the math
department shared his feeling of hostility toward her.
11

On January 13, 1993, as Deglow was reaching into her campus mail-box, he loudly
said, "How many people have you sued today? Have you sued anyone today."
Duff
On February 22, 1995, Charles Duff (Duff), who at the time was the math department
chair, wrote a letter to Deglow which began "Bullshit letters like the one you sent to me dated
February 20, 1995, with a copies [sic] to the dean and Curriculum Committee, mostly annoy
me." He completed the substantive part of his letter with, "If you have complaints or concerns
about our mathematics program that you feel compelled to write to someone about, please
address your letters to someone else and send me the carbon copy."
Shelley
The District's former general counsel, Sue Shelley (Shelley),5 retired from the District
on March 6, 1993. Steve Buckman (Buckman) began his District general counsel duties on
July 11, 1994.
The extent to which Shelley is still involved in Deglow's employment relations was
made clear in a February 18, 1997, letter from Jones to LRCFT. 	The letter was an attempt, by
Jones to explain a delay in responding to a grievance filed by Deglow. Jones told LRCFT that
the District needed more time to review the materials presented by Deglow in support of her
grievance. She continued, stating that in order to effect such a review Jones and Buckman
were going to have to meet with Shelley before they could share any proposed settlement with
LRCFT. 	Contact with Shelley was necessary, she wrote, because, although she "has been
retired for several years, she [Shelley] remains the sole resource for information regarding
5 Prior to becoming the District's general counsel, Shelley was a SCC math instructor
and an antagonistic colleague of Deglow.
12

Ms. Deglow's series of actions against the district. As a result, the District staff must continue
to rely on her expertise." Shelley has been openly hostile to Deglow for many years.
Hatton
On May 16, 1993, Deglow wrote a letter to the District's Board of Trustees and the
LRCFT president. The letter concerned how part-time instructors were being treated with
regard to flex time. 	She received a reaction to her letter from fellow mathematics instructor
and sometime department chair,6 Hatton, a long-time office mate of Meridith. Although he
was not copied on the face of the letter, he obviously received a copy. He sent it back to
Deglow with the following statement written in capitol letters with a bold marker pen across
the front of his copy of her letter: "THIS IS A WASTE OF PAPER! 	TAKE ME OFF YOUR
MAILING LIST. 	HATTON"
In addition, after Deglow challenged her 1997 perfonnance review report (Hatton was a
member of the review team), Hatton wrote a letter to Hunt, SCC's dean of instruction. In this
letter he states,
I am outranged [sic], ABSOLUTELY OUTRAGED!!, by the
charges leveled in Ms. Deglow's Challenge ....
Vrechek and Maloney
On February 22, 1995, SCC mathematics instructors, Jean Vrechek (Vrechek) and
Maloney, wrote to Dr. Murillo in response to a recent Deglow memo. Most of the instructors'
letter discussed the parties' different views of what actually occurred at a Geometry curriculum
faculty meeting that the authors attended with Deglow. The last paragraph of the letter states:
A year and a half ago, Annette was the lone dissenter in
approving the Math 52 course outline when it came up for vote in
6 In the District the terms "department spokesperson" and "department chair" are
synonymous. The person holding either of these titles acts as liaison between the faculty and
the college administration. For purposes of clarity the term "chair" will be used throughout
this proposed decision to reference this position.
13

the department. Now, once again, Annette has gone on record as
not supporting the current course outline. We believe that an
instructor who has repeatedly and publically [sic] disagreed with
the approved course outline should not be assigned to teach that
course. We suggest that she be assigned to a course that agrees
with her philosophy.
In 1993 and 1994 Vrechek was an appointed member ofDeglow's performance review
team. In 1997 and 1998 Maloney was an appointed member ofDeglow's performance review
team.
LRCFT's publications
This hostility towards Deglow was also evident in the LRCFT' s publication which is
distributed to all District academic staff five times a year. 	She is negatively referenced
25 times in its December 1994 edition, 28 times in its April 1995 edition, and 39 times in its
September 1995 edition. All of these references related to either her UP Cs or other protected
activities.
Verification of Systematic Hostility
Dean Haro
Dean Haro was the dean of SCC's mathematics/science/engineering division from 1983
to 1992. In a May 21, 1998, letter to Gregory S. Baker, District assistant director of personnel
services, Dean Haro set forth his assessment of the negativity directed toward Deglow by
various members of the SCC faculty and administration. In his letter he also documented the
extent of the harassment directed toward Deglow while he was the dean of SCC's
science/math/engineering division:
During my first semester as Division Dean (the Summer 1983
semester), Mrs. Deglow was assigned to teach a daily-morning
Algebra class in place of her traditional two night a week Algebra
class. The assignment was made and approved by Charles
Nadler, the Campus Dean oflnstruction, prior to my assignment
and without the endorsement of the Math Department members. I
was advised that the assignment was temporary and intended to
14

provide Mrs. Deglow time to recover from vocal cord nodules.
During the semester, Mrs. Deglow and her accommodations
program were under constant fire. 	The level
of
harassment was
so extensive that Mrs. Deglow developed an intestinal disorder
that resulted in a work related injury and subsequent award from
the Workers' Compensation Appeals Board.
In the Fall 1984, Mrs. Deglow returned to the evening
instructional program. The constant need to harass her within the
work place diminished some but there were still
...
never ending
inquires by Union members, Mathematics Department instructors
and District administrators looking to find any infraction
of
the
rules by Mrs. Deglow that could be used to discredit her or make
it difficult for her to satisfy her instructional obligations.
In the Spring
of
1991, Mrs. Deglow asked
ifit
would be possible
for her to move from teaching Algebra to teaching Geometry.
Mrs. Deglow explained that her voice therapist felt that such a
move might mitigate her voice disability. Mrs. Deglow, shared
with me that she had initially been hired in 1962 to teach
Geometry
....
A review ofDeglow's records document
university training in the instruction
of
Geometry, study
of
Geometry instruction through the Stanford School Mathematics
Study Group and the National Science Foundation. Mrs. Deglow
proposed that she develop for her use a voice accommodations
program through the CSUS speech and hearing program for the
instruction
of
Elementary-Plane Geometry. The agreement also
included the condition that
if
she was able to develop a program
that effectively reduced her vocal stress, she could continue to
teach the course in the evenings as long as the program continued
to facilitate her disability. Mrs. Deglow, myself and the campus
administration agreed that
if
successful, the program would
facilitate both Mrs. Deglow and the college. For as long as I had
been on the SCC campus, staffing the evening Geometry class
had been difficult. At times the course was not scheduled in the
evening because there was no qualified instructor willing to teach
the course in the evening
....
I agreed to the proposal and assigned Mrs. Deglow to teach Plane
Geometry in the Fall 1991. Mrs. Deglow prepared and submitted
a formal request for reasonable accommodation for her disability
to the President of the College
....
The accommodations program
was approved and implemented in the Fall 1991 semester.
15

On August 26, 1992 the Workers' Compensation Appeals Board
ruled in favor of Mrs. Deglow and ... added documentation that
Mrs. Deglow had a right to reasonable accommodation. The
word traveled throughout the campus fast and the members of the
Mathematics Department began demanding that I suspend
Deglow accommodations program and return her to her Math 51
Algebra because her assignment to geometry had not been
approved by the mathematics faculty. 	The Department even
demanded that I start a rotation plan for the evening geometry
class. This was the first time, to my knowledge, that a class in
the evening had ever been considered for a rotation plan.
The issue was finally settled by Mary Jones the ADA Compliance
Officer. . . . Jones advised that since there were multiple sections
of geometry at SCC, it should not be difficult to meet Mrs.
Deglow's request for accommodation.
In my opinion, it is an understatement to say that Mrs. Deglow
has been the subject of harassment, retaliation, and intimidation
within the workplace because of her need for reasonable
accommodation of her work related disability. The efforts by the
faculty and administration to foster and promote a hostile work
environment for Mrs. Deglow and to interfere with the
performance of her duties are well documented, I can personally
attest to the fact that Mrs. Deglow was the subject of constant
harassment during the time that I served as Dean of the
Science/Math/Engineering Division. It is my understanding from
others that the conditions became worse, not better, after I
transferred to CRC in Spring 1993. All reports indicate that there
has been a constant effort on the part of individuals within the
department and administrators to harass Mrs. Deglow and to
foster hostility within her work place and to derail through any
means her accommodations plan.
Kent
Kent agreed with Dean Haro' s assessment of the hostility directed at Deglow at SCC.
Dr. Adams
Dr. Adams insists that a "small, cohesive group of dedicated oligarchs and their
sympathizers with the overt consent of the administration" are attempting to terminate
Deglow's college employment.
16

Absence
of
Rebuttal
The only rebuttals proffered by the District to any
of
the above-described allegations
of
hostility were (1) Hatton's comment that he thought Deglow might believe he was biased
against her through guilt by association as he was aware
of
her problems with other members
of
the department and because he was an office mate
of
Meridith for over ten years, and
(2) Deglow's assertion that, when discussing her objections to Hatton and Maloney as members
of
her review team, Maloney interjected a comment that "that was in the past, and it should
stay in the past."
District's First Attempt to Reassign Deglow
On November 3, 1992, Deglow was advised she would no longer be teaching
Geometry, but would instead be assigned an Algebra class, beginning with the spring semester
1993. At that time she would be required, effective January 19, 1993, to develop and
implement a new instructional plan for Algebra to replace her Geometry plan.
Deglow filed a grievance to retain her Geometry assignment. Shortly after the
grievance was denied, she filed a disability discrimination complaint with the DFEH. In its
response to this complaint the District admitted that it was aware that the Geometry class
accommodation was designed to provide voice relief. The District also conceded that it would
not be difficult to meet her request to continue to provide her with Geometry assignments. In a
March
1,
1993, letter from Jones, the District stated that "[a]t this time it appears that we can
continue to meet her request for accommodation by scheduling Ms. Deglow to teach
Geometry."
On August 13, 1993, DFEH confirmed that the District had agreed to continue
Deglow's Geometry assignment as a reasonable accommodation for her voice disability.
17

District's Second Attempt to Reassign Deglow from Geometry to Algebra
On March 17, 1998, PERB issued a complaint against the District with regard to
Deglow's latest UPC against the District. In this charge she alleged that she was denied access
to her fellow employees' mailboxes. Two days later, on March 19, 1998, Dr. Murillo7 changed
Deglow's assignment from Geometry to Algebra to become effective with the fall 1998
semester.
On March 25, 1998, one
of
Deglow's speech pathologists, wrote a letter to the District
stating that
if
her assignment was changed she would need to be given time and resources to
prepare the same materials for Algebra she had developed for Geometry. Otherwise, the letter
went on, her voice would be jeopardized.
On September
5,
1998, another ofDeglow's speech pathologists, in a letter to the
District, reinforced the need for her to be given sufficient time to transition from Geometry to
Algebra. This pathologist concluded that Geometry had "less vocal demand" than Algebra, but
failed to support this statement with any evidence.
The District declined to permit Deglow to retain her Geometry assignment and directed
her to begin her Algebra classes. She eventually requested and received a medical leave for
the fall 1998 semester.
Cervantes' DFEH Letter
Deglow complained to DFEH about her assignment to Algebra. On April 14, 2000,
Lily Cervantes (Cervantes), District interim director
of
employee relations, wrote to the DFEH
to explain why the District was opposing Deglow's complaint.
7 Dr. Murillo was SCC's Dean of Science, Math and Engineering from 1993 to 2001,
and in that position operated as Deglow's first or second level supervisor.
18

Cervantes' two and two-thirds page letter cites four reasons why Deglow's complaint
should not be honored; i.e., (1) Deglow cited no new facts to support her claim, (2) the
assignment to Algebra was not retaliatory, (3) there is no empirical evidence that Deglow's
disability precludes her from teaching Algebra, and ( 4) the District did not fail in its duty to
provide her with an environment to succeed when it assigned her to teach Algebra.
The reference to the term "not retaliatory," as set forth in reason (2), supra, concerns
the 1993 and 1994 evaluations.
Deglow believes that when she learned Cervantes failed to tell DFEH the 1993 review
was voided due to "department and college" error, it was the first time she became aware that
her reassignment and the cessation of her voice breaks were in retaliation for her protected
activities. She contends that the first time she saw this letter was when it was received by her
attorney as a result of a subpoena served pursuant to this case on January 2, 2001. However,
on page of two of Cervantes' letter she described the 1993 and 1994 evaluations, as follows:
The Review Team marked Ms. Deglow as "Needs Improvement"
in three areas and "Meets Standards" only in one area. For the
period of 8/94 to 12/94, the Review Team expanded the rating
factors to a total of seventeen. Ms. Deglow was ranked
"Satisfactory" in all areas. [Emphasis added.)
Cervantes also cites a 1997 performance review with negative ratings in support of
Deglow's reassignment. 	She then buttresses the negativity of this review with a statement that
a "newly formed Tenure Faculty Review Team" evaluated her (Deglow) in 1998 and again
rated her as "Needs Improvement." In fact, there was no newly formed tenured faculty review
team. The spring 1998 review team was comprised of the exact same three members as the
1997 performance review team.
19

Deglow Performance Reviews
Until 1993 Deglow's performance reviews included no unsatisfactory ratings. To the
contrary, they contained many laudatory comments about both her teaching and organizational
skills. She has consistently received extremely positive student evaluations, which are a part
of the formal performance process. In addition, she has high student retention rates.
A peer performance review team's structure is mandated by state law and the CBA.
Each performance review team consists of an administrator or supervisor plus two faculty
member peers. The CBA permits the evaluatee to peremptorily challenge one member of the
proposed team.
Following is a discussion of the various performance reviews received by Deglow.
Generally each discussion contains an identification of the team's membership, the results,
Deglow's rebuttal(s), and the substance of her eventual grievance objecting to the team's
ratings.
1993
Performance Review Team Membership
Deglow's 1993 performance review team consisted of Dr. Murillo and SCC
mathematics instructors Vrechek and Randy Rosenberger (Rosenberger).
Dr. Murillo was Deglow's dean at the time and Vrechek8 was a SCC tenured math
instructor who has been employed full-time by the District since 1985. She has taught
8 Vrechek originally requested that she be allowed to teach the evening section of
Geometry in the fall of 1992 or spring of 1993. This course would have facilitated family,
babysitting and car pool schedules for her. Although initially scheduled for this course, it was
later assigned to Deglow as a part of her voice accommodation plan. Vrechek was eventually
given this night class in 1998, after Deglow was involuntarily assigned to Algebra classes
exclusively.
20

Geometry sporadically since 1977. There was no evidence proffered regarding Rosenberger,
other than he is a SCC math instructor.
Review Results
In the performance review team's report Deglow was marked "Needs Improvement" in
two of three substantive ratings, as well as in the "Overall Evaluation" rating. In the
"Professional Responsibilities" category it was suggested, inter alia, that she did not cover the
entire course syllabus. In the "Professional Relationships" category she was marked down due
to two perceived failings, i.e., (1) insufficient face to face open communication with
colleagues, and (2) a failure to work through proper channels to resolve issues.
Deglow Rebuttal
In September 1993 all SCC math instructors received a transmittal describing the
course outline for each of the department's courses. Deglow read, signed and returned the
transmittal. In November she was evaluated and marked down for not including three chapters
that had not been included as mandatory subjects in the September transmittal. Deglow had
been told of the three chapters by Dean Murillo, but she was also told that the students would
not be held responsible for these chapters until the fall of 1994. Deglow included them in the
scope of her instruction, but did not test the students on this material, due to the dean's
instructions.
Grievance
Deglow filed a grievance with regard to the performance review results. During the
grievance process, the District administration admitted that the "Needs Improvement" ratings
were the result of department and college administrative error.
Dr. Murillo, in a May 5, 1994, letter, specifically stated "we agreed to void" the 1993
review and that there would be another performance review conducted in 1994 which would
21

replace this voided review. (Emphasis added.) The "we" referred to Dr. Murillo, on behalf of
the District, LRCFT, and Deglow. As a part of the grievance settlement, the District insisted
that the original performance review report would remain on file, but would not be "used in
any disciplinary process," either at that time or in the future.
The LRCFT stated, in letter to Deglow, dated January 3, 1995, that the District agreed,
in writing, not to use the original review report in any disciplinary process and it (LRCFT)
explained to Deglow that "the District has agreed, in writing, not to use the original evaluation
in any disciplinary process." In addition, LRCFT wrote "we cannot think of any manner in
which the District might use the evaluation against you."
Although LRCFT's letter, along with Dr. Murillo's May 5 agreement to void the
review, were admitted into evidence, the District's written agreement regarding the 1993
grievance was not located. However, the District neither disavowed its responsibility for
Dr. Murrillo's "void" statement, nor did it dispute LRCFT's conclusion. However, it insisted
Cervantes' 2000 letter to DFEH, justifying Deglow's reassignment, in part, on the 1993
negative review report, was not improper. It explained that as neither the instant proceeding,
nor Deglow's complaint to DFEH are "disciplinary" processes,9 its use of the 1993 review to
justify Deglow's reassignment was not prohibited.
1994
At the time ofDeglow's 1994 performance review SCC was using a new form that
included ratings in seventeen objective categories, rather than the three rather vague catchall
categories previously employed. The same three persons comprised the 1994 performance
9 The District states that its disciplinary processes include only (1) letters of reprimand,
(2) demotions, (3) loss of pay, and (4) termination.
22

review team that acted as the 1993 team. The new review report contained satisfactory ratings
in all seventeen categories.
1996
During the fall semester 1996 Deglow was informed that (1) she would be given a
performance review later that semester, and (2) Maloney and Hatton would be her peer review
team members. On September 23, 1996, Deglow put mathematics chair, Charles Duff (Duff)
on notice that she was unable to accept either Maloney or Hatton as they were both biased
against her. Therefore, she continued, she requested permission to do a self-evaluation, which
is permitted by the CBA. On September 24 Duff directed her to submit her self-evaluation
request to the Academic Senate. On September 29 Deglow wrote the Senate. On October 1,
1996, Dr. Murillo told Deglow that she was not due for a performance review until the fall
1997 semester. Therefore, the earlier information was incorrect and there would be no review
that semester.
1997
A thorough analysis of this performance review, and its resultant report, is crucial to the
resolution of this case, as the District cites it as its primary justification for reassigning Deglow
from Geometry to Algebra.
Performance Review Team Membership
Deglow's 1997 evaluation team consisted of Dr. Murillo, plus the two SCC instructors
she had previously complained about, i.e., Maloney and Hatton. At the team's initial meeting,
Deglow quotes Maloney as saying that any antagonism on her part was "in the past."
Maloney has a master's degree in teaching mathematics from University of California,
Davis, and for fourteen years has been a full-time mathematics teacher at SCC. She has taught
Geometry ten or twelve times. She is not aware of any objections Deglow had to her
23

participation on the 1997 performance review team. She states that she knows nothing about
PERB or any UPC charges filed by Deglow. She was Deglow's office partner for the first year
or two she (Maloney) was employed at SCC.
Hatton has been a mathematics teacher at SCC since 1981 (7 years at the high school
level prior to that time.) He was asked by Murillo to find two review team members, but no
one was willing to serve. He contends this reluctance was due to their disinterest in being sued
by Deglow. Due to this general reluctance by others to serve, he agreed to become a member
of
her review team.
Prior to the first meeting
of
the review team, Hatton thought Deglow would object to
his membership, but he contends that she said she was comfortable with the team's
composition. Deglow disagrees, stating that at this meeting she reiterated her previous
objections to the team's membership.
Hatton based his belief Deglow would object to his team membership because he knew
of
her problems and friction with other members
of
the department. In addition, he was an
office mate
of
Meridith from 1981 to his retirement in 1992. He believed she would view him
as guilty by association.
Hatton is aware ofDeglow's various grievances and PERB actions from LRCFT
publications. His attitude toward Deglow was made clear when he proclaimed, with obvious
pride,"
...
I have been teaching for almost 30 years, I've never filed a grievance. I don't know
anybody that has filed a grievance, let alone any kind
of
a PERB action."
Review Results
The performance review report rated Deglow as "Needs Improvement" in seven
of
the
seventeen categories, as well as in the "Overall" category. These seven categories, followed
by the review team's supporting text and Deglow's rebuttal, are as follows:
24

1.	
[Category No.
1]
Maintains current knowledge
of
field in
performance
of
assignment.
Text: The presentation does not reflect the depth
of
geometry
that is the math department's standard for the course. 	Concepts
need to [be] utilized to reflect the use
of
critical thinking in
applications development as recommended in the Mathematics
Framework. (Versus definitions and fill ins)
Maloney said Deglow only skims over the top
of
things, and does not get into the depth
that Geometry usually requires. She believes that Deglow has a confused concept
of
what
parts
of
Geometry are important, and that she displays a lack
of
passion for the material.
Maloney believes Deglow concentrates on lecture too much and has insufficient student
interaction. In addition, she stated, Deglow taught the course out
of
order.
Dr. Murillo believes there was no "critical thinking" kinds
of
questions posed to the
students to access whether they were effectively learning the material and were able to apply it.
Rebuttal: The objective depth
of
instruction is governed
by SCC's curriculum/course
outline and its catalog. Deglow insists her syllabus and semester plan cover all phases
of
the
materials set forth in these documents.
In addition, Deglow contends her student reviews, which are a part
of
the formal
performance review process have been very positive. The only empirical evidence proffered
of
these reviews concerns years 1972, 1974 and 1983. In 1972 Deglow received a 3. 71
"all round
teaching" score; in 1974 she received an "all round teaching" score
of
3. 7 4. Both
of
these
scores were on a 4.0 scale, with 4.0 being the best score possible. In 1983 she received a
1.31 overall rating on a 5 .0 scale with 1.0 being the best score possible.
Deglow was especially confused over this "lack
of
depth" criticism as her classroom
presentation had not changed in either content or style since her positive 1994 performance
review. A review in which Dr. Murillo was a review team member.
25

2. 	[Category No. 2] Communicates subject matter clearly, correctly,
and efficiently.
Text: Since the presentation is purely lecture, limited opportunity
for two way communication exists and hence the effectiveness of
the lecture is not assessed.
Rebuttal: Deglow cites her high student retention rate in support of her contention that
she communicated clearly, correctly and efficiently. Her 1994-2000 Geometry retention rate
of 64 percent is higher than any other math teacher and well above the SCC average of
50 percent. By way of comparison, Maloney's Geometry retention rate is 39 percent;
Vrechek's rate is 57 percent; and Rosenberg's rate is 41 percent. Although Hatton has not
taught Geometry since 1994, his retention rate in trigonometry, his primary subject, is
41 percent.
In addition to her lectures Deglow provides a half-hour lab time prior to each class.
This enabled her students to interact with each other as well as Deglow. The reviewers did not
attend these lab meetings, therefore, they gave her no credit for either this extra student contact
time or for the opportunity it presented for her to interact with her students.
Sur-rebuttal: Dr. Murillo disputes Deglow's reliance on her retention rate. She admits
that retention rates are compiled each semester by SCC, however, they are intended to be used
only as a management tool to help the faculty. - These rates are not shared with either the
department chairs or the faculty. 	Dr. Murillo uses them only if an instructor's retention rate
drastically drops from one semester to another or if an individual instructor's rate was
drastically different than his/her peers.
3. 	[Category No. 3] Adheres to the approved course outline
and department standards.
Text: It is recommended that the textbook order of the topics be
adhered to. This is especially essential when the appropriate
depth for the topics is presented.
26

Rebuttal: The comments of the academicians that testified in her behalf all assert that
her syllabus and course materials adhered to the approved course outline. With regard to
department standards, Deglow asked each of the review team members to provide her with
greater specificity concerning their complaints. She did not receive these materials until late in
the spring semester 1998, long after her reassignment had become final.
SCC's approved Geometry textbook, on page xi in the preface, second paragraph, says
three chapters, 8, 9 and 10, "provide enrichment" and "are sufficiently independent so that any
of them can be used separately."10
In addition, in September 2000 SCC Math Department Chair David Blackwell
(Blackwell) endorsed the practice of instructors rearranging the order of the chapters in the
Algebra textbook.
Deglow did not fail to include all required subjects. She merely rearranged the chapters
to help the students grasp the material. She contends that because Geometry is so different
than Algebra many students are scared off by the first few chapters in the textbook. The last
three chapters provide an easier transition into Geometry and permit the student to build a level
of confidence in the new subject. She attributes the retention of three to four extra students a
semester to this chapter rearrangement.
For a period of 12 of 16 weeks Deglow sat in on Maloney's Geometry class to observe
how she incorporated the subject chapters into the curriculum.
After this observation Deglow understood that her style of instruction is significantly
different than Maloney's. She does not contend that Maloney's teaching style is better or
worse, just different from hers. For example, Deglow tries to center her instruction around the
10 When asked if this comment from the textbook's author had any effect on her opinion
that Deglow was remiss in rearranging the order of instruction, Maloney replied that it did not.
27

entire class, she tries to reach everyone in the room. Maloney centers her instruction around
the high end of the course and the students that are going to go on to higher mathematics at
four-year institutions.
While Deglow collects homework and does everything she can to monitor students and
encourage them to do the homework, Maloney leaves it up to them to do their homework on
their own. Deglow presents 85 to 95 percent of the proofs and corollaries. She also presents
all of the axioms and postulates and works a large number of problems in class. Maloney, in
contrast, works a selective number of proofs and would frequently work with longer, more
difficult proofs. Deglow preferred a lot of shorter, less complicated proofs, so as to permit the
average student to follow the logic and gradually build up to the more complicated problems.
Deglow would organize every aspect of her lecture and general presentation in advance.
Deglow observed that when Maloney "would do a proof, she would kind of talk about it a little
bit, make a change, then she'd say, now, I'm going to change my mind and she'd do something
else." Deglow observed "That's fine for a very good student, but it's very difficult for a
student who is not really math oriented, it's very confusing for them."
After sitting in Maloney's class for an extended period of time, Deglow observed "that
the struggling student, those that were not really strong, dropped out of the class very, very
early in the course. The class went from 35 to 37 student down to probably 18 to 20 in less
than three weeks."
Deglow sees herself as much more organized. Once she comes into the classroom she
starts the class at exactly the correct time. 	Once she starts her lecture, the students have a
workbook that she has prepared and provided. She coordinates the workbook with the lecture
and the transparencies. The students are working constantly from the moment they come in
28

until the moment they leave. Everyone in the room is watching Deglow, the transparencies,
and moving through the workbook at the same time. It is a coordinated learning session.
Deglow also noted that Maloney is very casual, much more friendly, with a lot
of
dialogue and communication with the students. Deglow, on the other hand, is very business-
like. She reassures her student that everything she says while in that classroom is important -
there is no extraneous chit chat. Everyone is there to work. Maloney's style was a little more
loose, designed more for a university student rather than a community college student. Deglow
feels very strongly that she can reach all students and that Geometry has something to offer for
everyone, university-bound students as well as those not planning to go beyond a two year
degree, or even the student that takes an occasional course.
In addition, Deglow contends SCC's catalog description is internally inconsistent with
flawed time allowances and sequences
of
instruction. Deglow pointed out these problems in a
letter to Mathematics Chair
Duff
on February 20, 1995. Duff responded by calling her letter
"Bullshit
....
" (See further description
of
this incident on p. 12.) The repetitive use
of
the
subjective term "lack
of
depth" to support each negative rating lends support to an inference
that the review team expanded one perceived deficiency to support negative ratings in a
number
of
unrelated categories.
4. 	[Category No. 4] Adjusts methodologies for students/clientele
with special needs and different learning styles.
Text: 	Only the lecture mode was evident. Introduce other styles
to support different learning needs.
Rebuttal: Deglow makes two very persuasive rebuttal arguments to this rating, the first
of
which is the testimony of Dr. Schafer, who has been SCC's learning specialist program
coordinator for fifteen years. Dr. Schafer specializes in "special needs" and "different learning
styles." She believes Deglow was a teacher that "most of the students that were struggling
29

could learn from." She also believes that Deglow is "as good or better, ... than most of the
teachers [she] has observed teaching math at City College."
The second concerns the difference between the teaching style of Deglow and Maloney.
Of the three members ofDeglow's performance review team, only one of them has any recent
experience in teaching Geometry. Therefore, it is logical to assume that the often repeated
phrase, "lack of depth" came from Maloney. Given the differences between the two
instructors' styles, it is not difficult to understand why they would have vastly different
approaches to teaching this subject. However, when Dr. Schafer's informed opinion is added
to the analysis of which instructor's approach best "adjusts methodologies for
students/clientele with special needs and different learning styles," it seems clear that this
negative rating has insufficient validity.
5. 	[Category No. 6] Demonstrates evidence of careful preparation
in area of assignment.
Text: The organizational component of preparedness is evident,
but the lecture lacked the appropriate depth.
Rebuttal: The review team's rating and accompanying text are incongruous. The
category is exclusively devoted to "careful preparation." The team's response admits
"preparedness is evident," but lowers Deglow's rating due to a perceived "lack of depth."
Preparedness and depth are two entirely different components of teaching. This rating, in
particular, supports a finding the team attempted to take a single perceived negative attribute
and artificially apply it to an unrelated category in order to support a negative rating.
6. 	[Category No. 13] Demonstrates evidence of participation
in professional growth and development activities.
Text: There is no evidence of professional development in the
field of math/geometry. Given the lack of depth in the course
presentation, professional development in this area is
recommended.
30

Rebuttal: Flex day programs are designed exclusively for professional development
activities. The District dictates an instructor flex obligation
of
2.4 hours per semester. Deglow
has met or surpassed this level every year since flex day was initiated in 1990. This
participation was reported and verified in documents submitted to both SCC and the District.
Once again the review team is attempting to use its perceived "lack
of
depth" criticism
to support a negative rating in an unrelated category.
7.	
[Category No. 14] Works cooperatively and effectively
with others.
Text: Verbal conversations with staff members are not always
consistent with your written documentation that summarizes the
conversations
....
Rebuttal: Deglow believes this low rating was not the result
of
teaching deficiencies,
but rather were due to objections to her propensity for engaging in protected activities. The
hostility directed at Deglow was well documented and insufficiently rebutted. Working
cooperatively and efficiently does not mean an instructor must follow the majority and refrain
from expressing unpopular opinions. Deglow's opinions were credited.
In February 1993, Deglow received a letter from the director
of
the SCC's Staff
Resource Center, Barbara Davis-Lyman, commending her on a "terrific job" and her "endless
energy, persistence and commitment" in the design and implementation
of
a system that
enabled students to voice mail their part-time instructors.
Overall Recommendation: The review team's overall recommendation was that
Deglow be assigned to Math 51, 220 or 200 because students were being hurt in their
progression through SCC's mathematics courses. The team contended the students needed to
have a more challenging instructor and that Deglow's lack
of
depth would be more appropriate
for Algebra. There were only five sections
of
Geometry, but forty sections
of
Algebra.
Therefore, the team believed that Deglow had too much of an impact on the entire group of
31

students' future progress. Dr. Murillo contends the team recommended Algebra because
Deglow said she had successfully taught it in the past.
Post Review Meeting
Deglow states the post-review team meeting took less than 20 minutes and that most
of
that time was spent on the physical aspects
of
her classroom. The team members said it was
too dark, only one light was on in the room, and that the images being projected on the wall
(not a screen) were blurry. The team also criticized her for not moving throughout the room
during her presentation. There were no comments about her presentation lacking depth. In
fact, there was little or no opportunity for Deglow to enter into any sort
of
discussion with the
team members, they merely expressed their comments and the meeting ended.
The decision to conduct an additional performance review in one year was primarily
that
of
Dr. Murillo. She contends the reason for this additional review was to see
if
the team's
recommendations resulted in any improvements in Deglow's teaching style.
When the 1997 performance review report was completed it was too late to reassign her
from Geometry to Algebra for the spring semester 1998.
Deglow Assertion
of
Compliance
Deglow contends that she complied with all changes requested by the fall 1997
evaluation report. She was directed to teach the course materials in the order outlined in the
textbook 	and she modified her instructional presentation plan to do so. In addition, she was
encouraged to participate in professional development activities - she attended a City Lights
presentation on "The Geometry
of
Art." This event was one the mathematics department had
encouraged its instructors to attend.
32

Grievance
Deglow filed a series of grievances over the fall 1997 performance review report,
asking for greater specificity regarding the basis for the negative aspects of this evaluation.
Deglow complained the performance review team failed to give her any supporting
documentation for their ratings, especially for the rather subjective conclusion of "lack of
depth." This failure to provide such documentation deprived her of an opportunity to improve
the alleged deficiencies.
She asked for this information at least three times. She did not receive the actual
requested documentation until the end of the spring semester 1998, two and one-half months
after she was told she would be reassigned from Geometry to Algebra.
Her appeal included approximately 1,000 pages. These are same materials she gave to
her academic witnesses, such as Dr. Schafer, Dr. Adams, et al.
On March 19, 1998, Dr. Murillo told Deglow she would be involuntarily reassigned
from Geometry to Algebra. Dr. Murillo contends, however, that a final decision had not been
made at that time with regard to whether Deglow would teach Algebra or Geometry in the fall
of 1998 and that the Algebra assignment was merely a "placeholder." On March 22, 1998,
Deglow requested written confirmation of her teaching assignment for the fall 1998 semester.
On March 30 Dr. Murillo wrote, "Annette, your Fall '98 teaching assignment is Math 51
[Algebra]." There was no reference to it being a placeholder assignment. Dr. Murillo also
stated that Deglow's Geometry class had not been assigned to anyone else pending the final
decision on Deglow's spring 1998 performance review.
33

Spring 1998
Authority for Additional Review
CBA section 8. 7 .1 states tenured faculty shall receive a performance review every three
years. On March 19, 1998, Deglow was told she would be required to undergo a new review,
on the same day she was told she would be teaching Algebra instead of Geometry. The spring
1998 performance review was out of sequence as it was conducted less than four months after
her fall 1997 review.
CBA section 8.9 provides for "Special Reviews." Deglow alleges that the college can
not justify the spring 1998 review because the CBA specifically prohibits special reviews in
areas that involve academic freedom, and Deglow contends the purpose of this review was to
punish her for her views on various District employee issues.
However, CBA section 8. 7.1 permits more frequent reviews, if they are a part of a
performance review team's recommendations. In this case, Deglow's 1997 committee
recommended a review one year later to determine if she modified her teaching style in
conformance with their recommendations. Jones states that SCC often does a second review
the next semester after an initial performance review report includes "needs improvement"
ratings.
Review Report
Maloney says there was very little improvement from fall 1997. The committee
insisted that it could still see problems with lack of depth, critical thinking and problem solving
teaching. Hatton continued to be concerned about Deglow's failure to adequately solicit
student responses. This report superficially did not support a finding that it was an
independent review of her teaching in 1998. It was little more than a rubber stamp of the 1997
review.
34

The review team's report is dated May 28, 1998, over two months after Deglow was
notified that she would be teaching Algebra in the fall semester of 1998.
Eventual Disposition ofDeglow's Assignments
After two semesters of Math 51 (Algebra), Deglow's assignment was changed to
Math 51A and 51B11 each for 9 weeks. Deglow did not perceive this change in assignment as
being an independent "negative," but rather just one more attempt by her enemies to put her in
a disadvantageous position.
Dr. Murillo explains that Math 51 is only 5 semester units; Math 5 lA and 5 lB are a
total of six semester units. Deglow's tenure is for 6 hours ( 40 percent of 15 semester units.)
The proper number of semester units has to be maintained over a two-year period. Therefore,
if Deglow taught all Math 51 classes she would only have 20 semester units ( 4x5) over this
two year period, whereas her tenure level requires a total of 24 units over this same period.
Therefore, in one semester she would have to have an additional Math 5 lA or 5 lB (three more
units) to reach a total of 23 for the two-year period. It was more efficient to give her a steady
diet of Math 51A and 51B each semester at 6 units each.
Elimination of the "No Voice " and Vocal Rest Period
In Geometry Deglow was given 25 minutes of voice rest/lab time per class session. At
first she was given this same 25 minutes in her Algebra assignments. Later, in the fall 2001,
the District eliminated this rest time. Deglow tried to insert a few minutes of voice rest in the
middle of the class and then extend the class by fifteen minutes. She gave the students the
option ofremaining for the extended period of time. However, the students that remained were
11 Math 5 lA and B covers the same material as Math 51, but includes 17 .5 to 18.0 extra
class hours per semester.
35

late for their next class and another instructor subsequently complained because nine
of
his
students were consistently late to class.
In both the charge and the complaint the "no voice" and "vocal rest period" cessation
were separate issues. However, the evidence proffered in support
of
them was overlapping.
Deglow's contention seems to be that when teaching Geometry she was given a paid one-half
hour lab before each lecture period. A few semesters after she began teaching Algebra, this lab
period was terminated.
Deglow was informed on April 29, 1999, by means
of
her fall schedule, that her class
hours would be from 6:30 p.m. to 8:55 p.m. On September 12, 1999, she wrote Dr. Murillo
requesting a revised copy
of
this schedule, stating that it was in error, as it did not include "the
additional 10 minutes
of
lecture/break time that you approved on or about August 10, 1999."
Shortly thereafter, on that same date, Dr. Murillo responded in writing that the "lab portion
...
was not officially approved for Math 51."
Additional Allegations
of
Harassment
Textbook Substitution
Dr. Murillo directed Deglow to select a textbook for her spring 1999 Algebra Math
51
class. In October 1998 Deglow ordered the Wright/New, Introductory Algebra textbook in
preparation for spring semester 1999 classes. On October 19, 1998, Dr. Murillo approved and
forwarded Deglow's order to the campus bookstore. In December, Dr. Murillo changed the
textbook for Deglow's class to Martin-Gay's Beginning Algebra. Deglow asserts that she was
not notified
of
the textbook change and that she did not learn
of
the new textbook until the first
day of class in January 1999.
Dr. Murillo says that the form she uses to change textbooks is in triplicate. One copy is
sent to the campus bookstore, one copy to division office records and one copy to the
36

appropriate faculty member via his/her mail-box. Dr. Murillo did not notify the off-campus
book exchange, only the campus book store. On the first day
of
class 1/3
of
the students had
the old text; 1/3 had the new text; and 1/3 had no text.
This failure to learn
of
the textbook change effectively prevented Deglow from using
the audio-visual materials she had produced prior to the first day
of
class. Deglow spent
approximately 100 hours developing materials for the previous textbook. This failure to learn
of
the textbook change also required Deglow to work for an extended period
of
time during the
first part
of
the spring semester to replace the now obsolete teaching aids she had previously
prepared. Dr. Murillo's only defense was that, although she admits she signed a form changing
Deglow's textbook, she would not have done so unless it was in response to a request from
Deglow or there was some SCC or District directive to do. There was no evidence proffered
regarding the presence
of
either
of
these alternatives.
Refusal to Grant Computer Access
Although Deglow continued to explore all available legal remedies to reverse her
reassignment, once it became effective, she began to prepare the audio-visual materials
necessary to teach Algebra.
Michael Colozzi (Colozzi) is a SCC instructional assistant, who is employed as a
graphic artist for the computer technology-academic computing department. He has been
employed by the District for 30 years. He has known Deglow since 1975, and is aware
of
her
PERB actions and her grievances regarding the use
of
the equipment under his control. He
started helping Deglow in the production
of
her slides and transparencies in 1979, using a
Kodalith process. Eventually the manufacturer stopped producing the necessary developer so
the process became obsolete. He told Deglow about the unavailability
of
Kodalith and
suggested various alternative computer applications.
37

Colozzi characterized his relationship with Deglow as historically friendly and
professional until their personal views on the issue of razing the old library divided them.
However, he insists he has maintained a professional attitude toward her after the library
replacement issue was settled.
On several occasions Deglow requested access to SCC computers with Power Point
software capability. She had obtained Power Point training through her worker's
compensation claim. Much of the computer equipment was available to all faculty members,
but the more expensive and advanced equipment was housed in a room that was not accessible
to the general faculty. 	Deglow was told that until she could demonstrate proficiency in using
all of the equipment in this higher end computer room, she would continue to be denied access
to it. She had slides that could easily have been turned into a computerized Power Point
presentation if she had access to the Leaming Center's scanner. She made three requests for
this scanner, all to no avail.
Kirk Wiecking (Weicking) has been SCC's distance educator coordinator for the past
18 months. Previously he was the dean of SCC 's Leaming Resources Center. He learned of
Deglow's PERB UPCs through the LRCFT newsletters. The new Leaming Resource Center
(library+ tutoring + media productions ) opened in August 1998.
A multi-media design team (MMDT) of five faculty members plus Terry Hajek
(Hajek), SCC's media resources supervisor, was in charge of this "higher end" room. Initially,
accessibility was limited to whomever could prove proficiency to this group. Later it was
limited to members of the MMDT.
Wiecking acknowledges that Deglow, in late 1998, requested access to this "higher
end" room, but she did so only a few days before school was to close for the holidays. He
denied her access due to the limited amount of time before the close of the room/building for
38

the holidays. However, he insists he could have arranged other avenues
of
access, but her
request came too late for these other avenues to be implemented. He contends she did not call
back until late February. On February 29 Wiecking responded to Deglow's second request.
He insists his response was somewhat delayed because he could not e-mail her and her FAX
was always busy. He discussed the possibility
of
her joining the MMDT, after completing a
specified training course. However, one requirement
of
that course is the designing
of
a WEB
page. Deglow believed she did not have time for the additional chore
of
designing a WEB
page, therefore, did not attend the course.
Although Weicking and Deglow were not close, he believes that she had a friendly
relationship with a number
of
his staff members, Sean, Lori, Andrea, and Nancy Olander.
Denial
of
Leave
Deglow requested a series
of
leaves to enable her to prepare the same type
of
teaching
materials for Algebra she had prepared for Geometry.
The District records show that Deglow requested various types
of
paid leaves during
the 1990's. These requests are:
1.
	In the spring semester
of
1993 Deglow requested a Type E leave -retraining.
This type
of
leave was usually used to enable the District to facilitate a move
of
a faculty
member from a diminishing academic area to a developing one. Deglow was not moving from
one academic area to another, therefore this request was denied.
2. 	In the fall semester
of
1993 Deglow requested a Type B leave - professional
development. This type
of
leave is usually just a partial leave, i.e., in lieu
of
three or six units
for a semester or two. It is primarily used in the area of curriculum development to enable an
instructor to develop new materials or a new approach to old materials, anything that would
benefit SCC's instruction. Deglow was not requesting the leave to work on curriculum
39

development, she was attempting to develop materials that would enable her to teach a new
course within the confines of her vocal disability. Therefore, this request was denied.
3. 	In the fall of 1998 Deglow was given a nine week leave to enable her to prepare
materials to teach Algebra. In lieu of teaching after the leave expired, she requested and was
granted a medical leave for the rest of the semester.
Deglow was requesting a Type B leave at a full-time level, rather than her 40 percent
tenure level. She believed this extra time was necessary for her to create and refine the same
materials for Algebra that she had previously developed for Geometry. She also believed that
as the District improperly assigned her to Algebra, rather than Geometry, it should pay for the
time necessary for her to develop the same teaching materials for Algebra that she had
previously developed for Geometry.
The District denied her request for a Type B leave, stating that such a full-time leave
would have automatically increased her tenure level from 40 percent to a 100 percent level, a
modification the District was unwilling to sanction.
Compacted Class12 and Excessive Students Enrollment
Dr. Murillo says SCC schedules compact courses to accommodate two groups of
students. One group, for their own scheduling reasons, want to start in mid-semester. The
other group has experienced trouble in a particular class at the start of a semester and wants to
begin the class over.
Generally students enroll in August for all courses, including the compacted classes.
The enrollment of a compacted class continues up to the first day of the class. However, when
the late starting compacted classes reach the maximum number of 40, the mathematics
2 A compacted class is taught over a nine-week period, instead of the usual 18 weeks.
The class meets for twice the number of hours per week of a regular class. Both classes cover
the same quantum of material.
40

department raises the maximum limit from 40 to 80 students. As soon as enrollment nears 80
the students are divided and a second class is created. This permits the college to take
advantage of additional enrollment.
In the fall of 1998 Deglow was originally assigned to the compacted course because of
an arrangement she made with the District to have time off at the beginning of the semester to
permit her additional preparation time to teach Algebra.
When Deglow was originally assigned to a compacted section of Algebra it had an
enrollment of 74 students. However, Dr. Murillo anticipated the class would be divided
between two instructors prior to the first day of class. As this is a fairly common occurrence,
Deglow must have been aware of this practice, or could have learned of it with a minimum of
effort. The issue became moot when Deglow went on medical leave for the entire semester.
Failure to Provide Requested Drop-Screens
In February 1999 Deglow twice requested Dr. Murillo's assistance to have two drop-
screens installed in her classroom. She had previously been projecting her slides onto a
"white" board, which created some distortion. This distortion was the source of one of the
negative comments she received in her fall 1997 performance reviews.
Dr. Murillo responded by stating that she did not understand the need for the requested
equipment, even though she was a member of the review team that complained about the
distortion on Deglow's slides.
Eventually, the screens were approved, ordered, delivered and installed. Hajek's
installation was routine, but there were difficulties in installing them the way she wanted.
Purchase of Transparencies
When Deglow requested blank transparencies from Dr. Murillo for her Algebra class,
she was directed to submit her request to Jones. Deglow contacted Jones and requested the
41

materials be purchased and delivered to her. Jones told Deglow to contact Colozzi for the
materials. He did not have any in stock, so he said he would order them. He ordered three
boxes from Minnesota Western (MW). He believes that after the order was placed, MW got a
call from Deglow, asking them to deliver the order to her home. This belief is supported by
the fact the MW invoice lists Deglow's home address as the delivery location.
This upset Colozzi, because he cannot authorize payment to MW until he receives
physical delivery of the merchandise. When the boxes were delivered to Deglow, she kept one
box (her originally agreed-upon share) and immediately took the other two to Colozzi. Once
he received the boxes, he was satisfied that all requirements had been met, MW was paid, and
the matter was completed. There was no evidence that Dr. Murillo was not eventually satisfied
that the transparencies were a valid business expense.
However, Deglow insists Dr. Murillo accused her of violating the chain-of-command
by placing the order herself, rather than going through proper channels. Deglow contends that
even after she provided the invoice to Dr. Murillo that clearly shows the transparencies were
ordered by Colozzi, she (Dr. Murillo) continued to accuse her of making a personal purchase
with District funds. However, the only documentation of this interchange consists of copies of
the invoice with Dr. Murillo's cursive notes telling Deglow that this purchase had not been
approved by her and that Deglow should either pay for them herself or cancel the order. In
other words, the documentation suggests that, although there was an initial dispute over the
validity of SCC paying for the transparencies, it was eventually resolved, Deglow received her
materials, and SCC paid for them. This documentation does not confirm a continuing
objection to this transaction by Dr. Murillo, much less a continuing Dr. Murillo accusation of
Deglow wrongdoing.
42

Deglow's Requested Remedy
Deglow is asking to be paid on a full-time basis for approximately one year, as she
asserts that she worked full-time to overcome the allegedly unlawfully motivated obstacles
placed in front
of
her. She also cites a CBA provision in the past that entitled faculty members
that did exceptional things in the community to receive horizontal advancement on the salary
schedule.
She cites (1) her actions resulting in numerous faculty members obtaining tenure and
(2) the District receiving $47,000 from LRCFT, in support
of
her contention she has done
"exceptional things." She cites both
of
these occurrences as justification for her request for
this schedule advancement.
ISSUE
1.
	Did the District, when it (1) changed Deglow's teaching assignment from
Algebra to Geometry, or (2) eliminated (a) a "no voice" period and (b) a 10- to 15-minute
vocal rest period, for each hour oflecture, discriminate against her because
of
her protected
activities, thereby violating subdivision (a)
of
section 3543.5?
2. 	Are these charges barred by provisions
of
the Act that prohibit PERB from
issuing a complaint based on behavior that occurred more than six months prior to the filing
of
the charge?
CONCLUSIONS OF LAW
ISSUE NO. 1
In Novato Unified School District (1982) PERB Decision No. 210 (Novato), the Board
set forth the test for retaliation or discrimination in light
of
the National Labor Relations Board
(NLRB) decision in Wright Line, Inc. (1980) 251 NLRB 1083 [105 LRRM 1169] enforced in
43

part (1st Cir. 1981) 662
F.
2d 899 [108 LRRM 2513]. Under Novato, unlawful motivation
must be proven in order to find a violation.
In order to establish a prima facie case, the charging party must first prove that the
subject employees engaged in protected activity.
13
Next, it must prove that the person(s) who
made the decision(s) that resulted in the harm were aware
of
such protected activity. Lastly, a
nexus or connection must be demonstrated between the employer's conduct and the exercise
of
a protected right, resulting in harm or potential harm to that right.
Proving the existence
of
unlawful motivation can be difficult. PERB acknowledged
that when it stated the following in Carlsbad Unified School District (1979) PERB Decision
No. 89 (Carlsbad), at page 11:
Unlawful motivation, purpose or intent is essentially a state
of
mind, a subjective condition generally known only to the charged
party. Direct and affirmative proof is not always available or
possible. However, following generally accepted legal principles
the presence
of
such unlawful motivation, purpose or intent may
be established by inference from the entire record. 	[Fn. omitted.]
In addition, the Board in Novato set forth examples
of
the types
of
circumstances to be
examined in a determination
of
whether union animus is present and a motivating factor in the
employer's action(s). These circumstances are: (1) the presence
of
any disparate treatment
of
charging party; (2) the proximity
of
time between the participation in protected activity and the
adverse action; (3) any inconsistent, contradictory or vague explanation
of
the employer's
action(s); (4) any departure from established procedures or standards; and (5) any inadequate
13
Section 3543, in relevant part, grants public school employees:
(a) 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.
44

investigation. (See also Baldwin Park Unified School District (1982) PERB Decision
No. 221.)
Carlsbad states that once a prima facie case is established, the burden of proof shifts to
the respondent to show that it would have engaged in the complained-of conduct irrespective
of any unlawful motivation.
Analysis
Deglow's continuing attempts to advocate CTA's views on the campus, i.e., her UPC to
force the District to permit her to use faculty mailboxes to advocate various non-LRCFT
positions, added fuel to the fire. 	The mathematics department was allegedly a strong supporter
of CFT, and opposed to CTA.
The District contends that Dr. Murillo was the person that made the decision to reassign
Deglow from Geometry to Algebra. It then states that there was no evidence that Dr. Murillo
had any knowledge of Deglow's various protected activities. The District's contention
contradicts both logic and the testimony of several witnesses, most notably Dean Haro. 	In
order to support an argument that Dr. Murillo knew nothing ofDeglow's protected activities, it
must be shown that she never (1) read any of LRCFT's publications, (2) discussed Deglow's
grievances, UPCs, or other protected activities with any of her subordinates, or (3) received
any inquiries or suggestions from fellow administrators regarding Deglow's various protected
activities.
Dean Haro's letter makes it quite clear that when he held Dr. Murillo's position as
dean, he was constantly barraged with calls from administrators and faculty alike, to take
various negative actions against Deglow. In order to believe respondent's argument, I must
also believe that these voluminous and persistent calls must have mysteriously stopped the
moment Dean Haro left and Dr. Murillo arrived. This contention is not credited. It is
45

concluded the Dr. Murillo was very aware
of
the faculty's animosity towards Deglow and
these views influenced her actions.
In addition, as the District strongly relies on the 1997 performance review report to
justify the reassignment, and as this process also involves two peers, the knowledge
of
each
participant must also be evaluated. Various witnesses, including Hatton, testified that they
were aware
of
Deglow's activities through the LRCFT publications. The evidence, as a whole,
supports a conclusion that Deglow's reputation was widely known by all factions
of
the
administration, faculty, and staff. As Hatton so proudly proclaimed, he had never filed a
grievance and he knows no one that has. A contention that a faculty member who has filed
63
grievances, 25 UPCs and numerous Superior Court actions, has done so cloaked in anonymity,
even though the District's union periodically attacks her in its newsletter, is supported
by
neither logic nor the evidence.
Both Hatton and Maloney, the other 1997 review team members, were aware
of
Deglow's protected activities. Hatton admitted reading LRCFT's publications about Deglow
and Maloney' s demeanor on the stand left little doubt she was not an unbiased Deglow
observer. In addition, the 1995 letter, co-written by Maloney and Vrechek, that asked that
Deglow be removed from her Geometry assignment, adds weight to this conclusion. Due to all
of
the above, Dr. Murillo's assertion that she knew nothing
of
Deglow's UPC charges is not
credited.
Therefore, it is concluded that Dr. Murillo, along with Vrechek, Maloney, and Hatton,
were all very much aware
of
Deglow's protected activities. Therefore, the first two elements
of the Novato test are satisfied.
The remaining element is whether a nexus exists between the knowledge of these
activities and the negative personnel actions taken.
46

Unrebutted evidence clearly shows a pattern of animus towards Deglow on the part of
the administration, as well as members of the math department. Although there were various
reasons for this animus, i.e., the battle over the demolition of the library, much of it was due to
her protected activities, i.e., filing grievances, UPCs, and opposition to LRCFT.
As Dean Haro very clearly set forth in his letter, the math department instructors as
well as the administration wanted to be rid of Deglow. His recital of the 1993 math
department's demand for a rotation plan for her evening Geometry class, irrespective of the
department's difficulty in finding a volunteer to teach such a class in the past, was particularly
illuminating with regard to the extent to which the department members were willing to go to
thwart her interests.
However, the anti-Deglow forces faced a difficult situation. Deglow was a veteran
instructor who had received uniformly favorable performance reviews, student evaluations, and
high retention rates throughout her career. In addition, she had been given her Geometry
assignment as a result of negotiations between the District's ADA officer and the DFEH, as a
part of a disability accommodation plan. They only way they could oust her from her
Geometry assignment, and hopefully the school itself, would be to document perceived
teaching inadequacies.
This task would not be an easy one, as there was a plethora of evidence supporting a
conclusion that Deglow was a conscientious, organized, extremely well-prepared, caring
instructor who was very proud of the fact that she was successfully reaching and retaining a
high percentage of her Geometry students. These traits were demonstrated in many ways, i.e.,
(1) preparation of hundreds of overhead projections, (2) a student retention rate far above that
of her peers, in general, and her mathematics department detractors, in particular, (3) the
47

unconditional support
of
ten academicians who testified as to the quality
of
her preparation and
instruction, and (4) the strong support
of
Dr. Schafer and Dean Haro, two SCC administrators.
In 1995 Vrechek and Maloney, citing a Deglow vote on a 1993 Geometry curriculum
matter, wrote Dr. Murillo asking that Deglow no longer teach Geometry. Two years
later
Maloney was appointed to Deglow's performance review team.
Despite these voluminous manifestations
of
hostility, the strongest evidence
in
support
of
Deglow's
unlawful motivation allegations came from the two performance review teams. In
1993 she was given an overall rating
of
"improvement needed." This rating cited her alleged
( 1) failure to cover the entire course syllabus, (2) failure to ask sufficiently critical questions in
her tests, (3) communication inadequacies and (4) failure to work through proper channels.
The last two
of
these perceived problems can be traced directly to the animus directed
toward her
by
the administration, with the compliance
of
her department peers.
Communication and "proper channels" are bilateral functions.
	If
one communicator is hostile,
it is more than likely the dialogue will be "inadequate," especially in the eyes
of
the hostile
party. In addition,
if
the channels are under the total control
of
the hostile forces, it is unlikely
the subordinate employee's actions will be deemed "proper."
When it was proven to the District that Deglow's failure to test the students on the
added material was not her error, but rather the result
of
incorrect information supplied her by
Dr. Murillo, it voided the review results. The next semester the same three persons gave her a
satisfactory rating. In just one semester, after she included the disputed course materials,
Deglow mysteriously began to (1) ask sufficiently critical test questions, (2) have open
communication with her colleagues, and (3) work through proper channels.
Three years later the administrator, through the math department again tried to review
Deglow's performance, i.e., oust her from her Geometry assignment even though such a review
48

was in violation of the CBA. It placed two peer antagonists, along with Dr. Murillo, on her
performance review team. She objected to both of them and asked to participate in a self-
evaluation process. Although the performance review did not take place that year it did
proceed the next year with the same objected-to peers. The CBA grants the reviewed faculty
member a right to peremptorily dismiss one of the proffered peers. Deglow was not afforded
this right. This constitutes (1) a departure from established procedures or standards and
(2) disparate treatment. Both of these circumstances support an inference of unlawful
motivation. (See Novato.)
The review team went through the seventeen separate categories and marked her "needs
improvement" in seven of them. It is difficult for a non academician, especially one that has
not actually sat in her classroom, to critique an academic performance review. However, there
are a number of points in this review report that permit an insight into its validity.
First, the attempt to use the subjective term "lack of depth" to negatively color various
irrelevant categories was very apparent. The reason for seventeen separate categories is to
evaluate the instructor in seventeen separate areas of instruction. There is always some
overlap, but the team's rating in category No. 6 - preparation, in particular, was especially
ludicrous. Deglow's witnesses as well as the evidence presented in the face of a very tepid
rebuttal on this subject, supports a conclusion that she is an exceptionally well prepared
instructor. And yet this team, marked her "needs improvement" in this category, citing the
ever popular "lack of depth" to support its conclusion.
In Category No. 2 -communicates subject matter clearly, correctly and efficiently, the
review team complained of her pure lecture style. Deglow contends her high student retention
rate invalidates this rating. Dr. Murillo disputes her reliance on retention rates, stating that
these rates are intended only to be used by management to help faculty whose rates are
49

drastically dropping or below those
of
their peers. Dr. Murillo's argument is disingenuous.
	If
a poor student retention rate alerts management that a faculty member has a diminished level
of
effectiveness, it logically follows that a high retention rate supports a conclusion that the
subject instructor has a high level
of
effectiveness, i.e., s/he is communicating the subject
matter clearly, correctly, and efficiently.
Category No. 3 - Adheres to approved course outline - was negatively marked due to
Deglow not following the order set forth in the textbook. However, she clearly explained why
she taught the course in this manner and used the author's language to support her approach.
She also cited Math Department Chair Blackwell in support
of
instructors rearranging the
Algebra textbook's order. The conclusion to be drawn from this seems to be that even though
the textbook author and the department chair agree it is not necessary to slavishly follow the
textbook's order
of
instruction, when Deglow does it, it is grounds for a "needs improvement"
rating. Disparate treatment is a circumstance that supports an inference
of
unlawful
motivation. (See Novato.)
Category No. 4 	Adjust methodologies for student/clientele with special needs and
different learning styles. Dr. Schafer, who has been SCC's learning specialist for fifteen years,
testified that Deglow was a teacher that "most
of
the students that were struggling could learn
from." (Emphasis added.) She also stated that Deglow's teaching style covered the eight
distinct methods
of
teaching she routinely analyzes. She went on to conclude that Deglow is
"as good or better, and probably better, than most
of
the teachers I've observed teaching math
at City College." This endorsement from the college's learning specialist highlights the team's
lack
of
credibility with regard to this rating.
Category No. 14 -Works cooperatively and effectively with others. Given the level of
animosity that Deglow experienced at SCC there is little doubt that she had difficulty working
50

cooperatively and effectively with some
of
her peers. However,
if
this failure is based on her
protected activity, and the great weight
of
evidence supports a conclusion that it was, this
rating is in violation
of
the Act, and is therefore, invalid.
The review team's failure to provide requested documentation to support its
conclusions until the very end
of
the spring semester 1998 adds weight to the above
conclusions. This is especially true, when the amorphous phrase, "lack
of
depth" was used so
often to justify the team's conclusions. Without documentation, this term has little or no
meaning. The team's refusal to provide support for its conclusions dictate a determination the
original conclusions lacked substance and validity, and therefore, should not be credited.
The above analysis clearly shows that most
of
the negative ratings given Deglow by
Dr. Murillo, Hatton and Maloney were not supported by credible evidence. Therefore, they
support a conclusion they were in response to her protected activities and unlawfully
motivated. The performance review conducted in 1998 was merely a rerun
of
the 1997 review
and supports similar conclusions.
As stated, supra, the 1998 review was merely a rubber stamp affirmation
of
the 1997
review.
Cervantes' Letter
In April 2000 Cervantes attempted to justify Deglow's reassignment from Geometry to
Algebra in a letter to DFEH. She cites the 1993 negative performance review report, with no
mention
of
it being voided due to "department and college" error. She then cites the 1997
negative review report and buttresses this with a reference to a "newly formed" team in 1998,
which also negatively rated her as "Needs Improvement." Of course, there was no "newly
formed" team, just Hatton, Maloney and Dr. Murillo rubber stamping their earlier conclusions.
The uninformed reader of Cervantes' letter would conclude that Deglow received three
51

negative performance reviews and one satisfactory review. In reality, she received only one
final negative review with a pro forma verification from the original reviewers. This attempt
to mislead the DFEH constitutes an inconsistent explanation for its behavior that supports an
inference
of
unlawful motivation. (See Novato.)
Additional Allegations
of
Harassment
The instances
of
harassment alleged
by
Deglow, although not separate complaint
allegations, have a potential impact on the first issue to the extent they lend support to the
above conclusions
of
unlawful motivation.
Textbook Substitution
When these issues are examined in conjunction with the evidence
of
animosity toward
Deglow, it is difficult to give any credibility to Dr. Murillo's protestations that she only
changed the textbook because either Deglow or someone else directed her to do so. These
circumstances constitute an inconsistent, contradictory or vague explanation for the District's
actions, which support an inference
of
unlawful motivation.
Refusal to Grant Computer Access
Deglow wanted and needed access to computers with Power Point capabilities.
Although SCC had such equipment it denied her access until she could demonstrate the ability
to properly use the equipment. She asserted that she had such ability, but there was never an
opportunity to demonstrate it. 	There was no evidence proffered that suggested she was denied
such opportunity. Wiecking offered to enroll her in a class that would have resulted in her
obtaining the access she sought, but the program's overall objectives did not meet Deglow's
needs, so she declined such enrollment.
There could have been some degree of unlawful motivation in the District's slow action
in assisting Deglow, but the evidence in support of such motivation was vague and
52

insufficiently persuasive. Therefore, it is concluded that the circumstances surrounding
Deglow's inability to obtain computer access do not support an inference of unlawful
motivation.
Denial of Leave
Each of the types of leave requested by Deglow were shown to have been inappropriate
for the purposes for which she requested them. Therefore, it is concluded that the
circumstances surrounding the denial of various leaves requested by Deglow, do not support an
inference of unlawful motivation.
Compacted Class and Excessive Student Enrollment
Given Deglow's voice limitation, a compacted class would be disastrous for her.
However, initially, she was scheduled to teach a compacted class, starting in mid-semester,
because she was not ready in September to teach a regular 18-week Algebra course. The
excessive student enrollment issue was quickly and reasonably explained. In fact, it was so
obvious an explanation, that Deglow's reliance on this issue acted to negatively impact her
credibility.
Therefore, it is concluded that the circumstances surrounding the compacted class
assignment and its excessive student enrollment do not support an inference of unlawful
motivation.
Failure to Provide Requested Drop-Screens
Certainly the requesting, ordering and installation of these screens was fairly routine.
Dr. Murillo's initial challenge to Deglow regarding their necessity could be the result of
unlawful motivation or the routine act of an administrator to initially challenge any monetary
request by a subordinate. The evidence is insufficient to resolve this conflict. As the burden
of proof is on the charging party to prove its case, this allegation must fail.
53

Therefore, it is concluded that the circumstances surrounding the acquisition of the drop
screens do not support an inference of unlawful motivation.
Purchase of Transparencies
The weight of the evidence supports Deglow's contention she did nothing wrong,
except perhaps, to ask MW to deliver the order to her house instead of directly to SCC. In the
final analysis, Deglow got her transparencies and SCC paid for them, which suggests that Dr.
Murillo eventually agreed that they were a legitimate school expense. There is insufficient
evidence to prove, or even suggest, that Dr. Murillo's objections were based on anything other
than fiscal concerns.
Due to a lack of evidence, it is concluded that the circumstances surrounding the
"transparencies" issue does not support an inference of unlawful motivation.
Summary
The above analysis clearly shows that the charging party has established a prima facie
case of unlawful motivation. Under Carlsbad the burden shifts to the respondent to show that
it would have engaged in the complained-of conduct irrespective of any unlawful motivation.
The respondent's position on each charge was described and weighed throughout the above
analysis. It is clear that the evidence supports a conclusion that the District's complained-of
actions would not have occurred, but for the existence of unlawful motivation. Therefore, it is
concluded that, in the absence of a contrary ruling in the statute of limitations issue below, the
District when it modified Deglow's teaching assignment violated section 3543.S(a).
54

ISSUE NO. 2. 	Are these charges barred by the provisions of the Act that prohibit PERB from
issuing a complaint based on behavior that occurred more than six months prior to the filing of
the charge?
The District insists that this charge is barred by section 3541.5(a)(l) which prohibits
PERB from issuing a complaint "in respect of any charge based upon an alleged unfair practice
occurring more than six months prior to the filing of the charge." The statute oflimitations
begins to run on the date the charging party obtains actual or constructive knowledge of the
subject conduct. (Fairfield-Suisun Unified School District (1985) PERB Decision No. 547;
Regents of the University of California (1990) PERB Decision No. 826-H; Regents of the
University of California (1993) PERB Decision No. 1023-H.)
Even actual knowledge must "clearly inform" the charging party of the alleged
unlawful act. Deglow was informed on December 18, 1997, that her performance review team
recommended she be assigned Algebra in the future. 	On March 19, 1998, Dr. Murillo told
Deglow that she would be teaching Algebra during the fall semester. On March 22, 1998,
Deglow requested a written confirmation of her fall semester teaching assignment. On
March 30 Dr. Murillo wrote, "Annette, your Fall '98 teaching assignment is Math 51."
However, Dr. Murillo testified that this was merely a "placeholder" assignment and that the
final decision to whether she would be reassigned rested with the 1998 performance review
team.
The 1998 review team, in a report dated May 28, 1998, merely rubber stamped its
recommendations of its previous report, and Deglow's fall assignment of Algebra moved from
placeholder status to a final decision.
With regard to the "no voice" and vocal rest periods, Dr. Murillo communicated an
unequivocal cessation of these voice rest periods on September 12, 1999.
55

Deglow learned in March 1998 that she was being assigned to teach Algebra and in
September 1999 that her voice breaks were being withdrawn. However, she contends that she
did not know the reasons for these actions until she read Cervantes' April 14, 2000, letter to
DFEH. She explains that she did not receive this letter until January 2, 2001, in response to a
subpoena duces tecum issued in this case.
In California State Employees Association (Darzins) (1985) PERB Decision No. 546-S
and UCLA Labor Relations Division (Regents of the University of California) (1989) PERB
Decision No. 735-H, the Board, relying on NLRB cases, stated that the section 3541.5(a)(l)
six-month period commences on the date the conduct constituting the unfair practice charge is
actually discovered, rather than the date of discovery of the legal significance of that conduct.
However, in Peralta Community College District (1998) PERB Decision No. 1281 (Peralta),
the Board reversed those decisions when it stated that the six-month period did not begin to run
until the charging parties learned of the disparate treatment that formed the basis of the
charge.
In Peralta the issue arose from a district decision to contract out security services.
There was no record of district antagonism toward the employee(s). The employees had no
reason to believe that they were the subject of disparate treatment until they received a
document twenty-one days later that made this clear.
With regard to the instant case, Deglow has had a long-standing and intense history of
conflict with the District, in general, and the math department, in particular. There is no doubt
that when she received both her 1997 and 1998 evaluations she knew or should have known of
the conduct that gave rise to her claim that they were a retaliatory reaction to her protected
activities. In addition, when she received Dr. Murillo's final direction to begin teaching
Algebra classes in the fall of 1998, she knew or should have known of the conduct that gave
56

rise to her claim that this too was the product of the department's unlawful reaction to her
protected activities.
And yet, Deglow claims that the Cervantes' letter first informed her that her
reassignment was the result of unlawful discrimination. She further asserts that she did not
receive this letter until January 2, 2001. This letter covered a multitude of subjects. Deglow
relies on a rather obscure comment in an almost three page letter to support her contention.
The subject comment is not an overt assertion of District culpability but is merely an
incomplete recitation of the facts concerning the 1997 and 1998 performance evaluations.
Deglow filed her charge on June 22, 2001. Therefore, any unfair practice that occurred
prior to December 22, 2000, is barred by section 3541.S(a)(l). PERB has held in Lake
Elsinore School District (1987) PERB Decision No. 646 that this six-month limitation is
jurisdictional. Therefore, as Deglow knew or should have known of the District's unfair
practices well before December 22, 2000, the charges and their resulting complaints are barred
and must be dismissed.
SUMMARY
Based on the foregoing findings of fact, conclusions of law, and a thorough
examination of the entire record, it is determined that there is insufficient evidence upon which
to find that the District has violated the EERA. Therefore, the charge and its subsequent
complaint must be dismissed.
PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law and the entire record in
this case, it is ordered that the complaint and underlying unfair practice charge in Case
No. SA-CE-2037-E, Annette (Barudoni) Deglow v. Los Rios Community College District, are
hereby DISMISSED.
57

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 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. 	(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.) A
document is also considered "filed" when received by facsimile transmission before the close
of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 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, secs. 32300, 32305,
32140, and 32135(c).)
Alle~Link
Administrative Law Judge
58