San Mateo County Office of Education (PERB 1946E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ERIC
M.
MOBERG,
Charging Party,
V.
SAN MATEO COUNTY OFFICE OF
EDUCATION,
Respondent.
Case No. SF-CE-2638-E
PERB Decision No. 	1946
February 29, 2008
Appearances: Eric
M.
Moberg, on his own behalf; San Mateo County Counsel by Eugene
Whitlock, Attorney, for San Mateo County Office
of
Education.
Before McKeag, Wesley and Rystrom, Members.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Eric
M.
Moberg (Moberg)
of
a Board agent's dismissal
of
his
unfair practice charge. 	The charge alleged that the San Mateo County Office
of
Education
(SMCOE) violated the Educational Employment Relations Act (EERA)1 by retaliating against
Moberg for his exercise
of
protected rights.
The Board has reviewed the entire record in this matter, including the unfair practice
charge and amended charge, the response from SMCOE, the warning and dismissal letters,
Moberg's appeal, and the SMCOE's response. 	The Board affirms the dismissal
of
the charge,
on the following basis.
BACKGROUND
Moberg is a teacher with the SMCOE and is a member of the San Mateo County
Educators Association (Association). Moberg alleges that he acted as a representative on
1EERA is codified at Government Code section 3540, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

behalf
of
another employee, Waithira Njenga (Njenga), on June 7, 2007,2 and that he filed a
grievance on his own behalf on June 8 citing what he terms "rude and disrespectful behavior"
by 	SMCOE's Associate Superintendent Jeannie Bosley (Bosley).
On June
7,
Moberg requested a copy
of
his personnel file from the SMCOE's human
resources department. On June 13, Bosley emailed Moberg to schedule a meeting to discuss
Moberg's behavior on June 7 when he requested his personnel file. In the email, Bosley
suggested the afternoon
of
June
15
for the meeting. 	In response to the email Moberg
responded with a series
of
questions, including: 	"By what authority do you insist that I meet
with you during my vacation? Would you see that I received pay for my time? Do you assert
that you are somehow my supervisor and can direct my attendance at a meeting?"
On June 27, Njenga sent an email to the SMCOE superintendent requesting to meet on
June 28 to
discuss her level III grievance. The June
28
meeting date seemed to be rescheduled
from an earlier date when Njenga was unable to meet with a union representative present.
Moberg acted as Njenga's representative for the level III meeting on June 28 with the
SMCOE's superintendent.
On June 28, Bosley wrote a letter
of
reprimand to Moberg because
of
his rude and
disrespectful behavior on June 7 when he requested his personnel file from SMCOE office
staff. The letter began, "at your request I am putting this oral reprimand in vvriting in lieu
of
delivering it verbally at a meeting that I attempted to schedule with you."
On July
1,
Moberg filed a grievance alleging that Bosley retaliated against him by
harassing him with demands that he meet with her during his vacation and by sending him a
written reprimand containing false accusations.
All date references are to the year 2007.
2

BOARD AGENT'S FINDINGS
On September 10, the Board agent issued a warning letter finding that Moberg failed to
state a prima facie case. The warning letter stated that while Moberg alleged a legal
conclusion that he was reprimanded for protected activity, he failed to provide facts to support
the legal conclusion. Moberg amended his charge and the Board agent sent a dismissal letter
on November
7.
	The dismissal letter concluded that Moberg failed to allege facts establishing
a nexus between his protected activity in representing another bargaining unit member and his
reprimand for rudeness. The Board agent found that Moberg failed to provide any examples or
instances to establish a prima facie case
of
discrimination based on disparate treatment. The
Board agent further concluded that he failed to state a prima facie case
of
discrimination based
upon SMCOE's departure from the SMCOE's established procedures. The Board agent found
that Moberg requested or precipitated SMCOE's departure from established procedure by
requesting that an oral reprimand be reduced to writing.
MOBERG'S POSITION
In his charge and amended charge Moberg asserts that the SMCOE retaliated against
him as a result
of
his protected activities on June 7 and
8.
	Moberg further asserts that Bosley's
June 28 reprimand contains falsehoods and was given to him because he engaged in protected
activity. According to Mo berg's charge, all
of
the alleged facts support a finding that
"if
you
represent grievants at level 2, we will find a way to reprimand you" and
"if
you represent
grievants at level 3, we will officially reprimand you in writing."
Moberg alleges that there are several departures from standard procedure at SMCOE
which support his charge of retaliation. Historically, Association members have not been
reprimanded for being rude or disrespectful; they have not been required to make appointments
to see their personnel files as Article 16.5 of the collective bargaining agreement states that
unit members may view their personnel files "during normal business hours"; no other
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Association member has been accused
of
disrupting staff for requesting to review their
personnel file without an appointment; and there is no history
of
written "oral" reprimands.
On appeal Moberg argues that he has demonstrated a prima facie case. 	Stressing the
fact that the Board agent found that he established temporal proximity between his protected
conduct and the reprimand, Moberg argues that he has alleged other facts to demonstrate a
nexus. Moberg argues first that he has demonstrated disparate treatment in that other
employees were not reprimanded for rude behavior. He also argues that nexus is demonstrated
in the SMCOE' s failure to adequately investigate whether a reprimand was warranted for his
conduct on June 7, instead basing the adverse action on vague, exaggerated and false
accusations.
SMCOE'S POSITION
The SMCOE's response argues that Moberg's charge has no merit and fails to state a
prima facie case. 	SM COE disputes some
of
Mo berg's factual assertions, for example SMC OE
asserts that other employees have received an oral reprimand for similar conduct and that
Moberg's oral reprimand was reduced to writing based on Moberg's request.
DISCUSSION
To establish a prima facie case
of
retaliation in violation ofEERA section 3543.5(a),
the charging party must show that: (1) the employee exercised rights under EERA; (2) the
employer had knowledge
of
the exercise
of
those rights; and (3) the employer imposed or
threatened to impose reprisals, discriminated or threatened to discriminate, or otherwise
interfered with, restrained, or coerced the employees because
of
the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210 Q:{ovato); Carlsbad Unified
School District (1979) PERB Decision No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor Q:{orth Sacramento School District (1982)
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PERB Decision No. 264 (North Sacramento)), it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more
of
the following additional factors must also be present: (1) the employer's disparate
treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB
Decision No. 459-S); (2) the employer's departure from established procedures and standards
when dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. 104); (3) the employer's inconsistent or contradictory justifications for its actions (State
of
California (Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the
employer's cursory investigation
of
the employee's misconduct; (5) the employer's failure to
offer the employee justification at the time it took action or the offering
of
exaggerated, vague,
or ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive. (Novato; North Sacramento.)
Moberg's appeal reiterates the same facts alleged in his charge and amended charge.
Moberg is able to establish the first two prongs of the Novato test -- that he engaged in
protected conduct under EERA and that the SMCOE was aware
of
that conduct. Moberg
represented another bargaining unit employee in grievance prnceedings and filed his own
grievance, conduct
of
which SMC OE was aware. 	It is also clear that the letter
of
reprimand
was an adverse action under EERA. Thus, the central dispute surrounds whether or not
Moberg alleges sufficient facts to support the allegation that the SMCOE's reprimand was
issued because of his protected conduct and thereby retaliation. Moberg argues that it is
"obvious" that the SMCOE's June 28 reprimand for his alleged rudeness on June 7 is
retaliation for his representing Njenga on the same day.
5

We agree with the Board agent that Moberg failed to demonstrate a prima facie case
of
retaliation and that his charge was appropriately dismissed. 	Although Moberg established that
the reprimand was issued close in time to his protected activity, he fails to plead sufficient
facts to demonstrate other evidence
of
a nexus between his protected activity and the
reprimand.
Disparate treatment
Moberg alleges that SMCOE treated him differently than other similarly situated
employees based on his alleged "rude" behavior. As an example
of
disparate treatment,
Moberg alleged that he filed a grievance due to Bosley' s "rude and disrespectful" behavior
toward him and that she was not reprimanded. The allegations as to Bosley's different
treatment do not state a prima facie case, however, as Bosley and Moberg are not similarly
situated. (Madera County Office
of
Education (1999) PERB Decision No. 1334 [the Board
rejected an argument for disparate treatment when the charging party failed to present evidence
about similarly situated employees].)
Moberg filed a grievance about Bosley's behavior alleging a contract violation, but his
charge contains no allegations that the grievance process had concluded or that the grievance
was sustained. In contrast, there was a finding by the manager
of
the human resources
department that Moberg actually engaged in rude behavior and the reprimand was the
discipline for the conduct. Moberg and Bosley are not similarly situated employees as one
situation involves a grievance about rude behavior via a process that had not concluded, and
the other involves discipline for behavior which was determined to have occurred. The facts as
alleged are not sufficient to support a finding of disparate treatment.
Departure from standard procedures
Moberg's allegations related to the SMCOE's departure from standard procedures are
also not sufficient to state a prima facie case. The Board agent addressed Moberg's argument
6

that his written "oral" reprimand was a departure from procedure, finding that
if
SM COE
departed from its established procedures in giving Moberg a written reprimand, it was at his
own request. We agree. The reprimand states that it was reduced to writing at Moberg's
request, and Moberg did not refute that assertion.
Moberg's other statements about the SMCOE's departures from standard procedures
also fail, as Moberg merely alleges conclusions without including facts or evidence to support
them. 	Although a charging party's facts will be taken as true at this stage ofreview, a charge
must still contain a "clear and concise statement
of
the facts and conduct alleged to constitute
an unfair practice." (PERB Reg. 3 32615(a)(5); San Juan Unified School District (1977) EERB4
Decision No. 12.)
ORDER
The unfair practice charge in Case No. SF-CE-2638-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Rystrom joined in this Decision.
3PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
4Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board.
7