Monterey Peninsula Unified School District (PERB 2381E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ERIC M. MOBERG,
Charging Party,
V.
MONTEREY PENINSULA UNIFIED SCHOOL
DISTRICT,
Res ondent.
Case No. SF-CE-2830-E
PERB Decision No. 2381
June 27, 2014
Appearances: Eric M. Moberg, in propria persona; Lozano Smith by Kimberly L. Gee,
Attorney, for Monterey Peninsula Unified School District.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Eric Moberg (Moberg) from the dismissal (attached)
of
his unfair
practice charge filed on March 29, 2010, against the Monterey Peninsula Unified School District
(District) pursuant to the Educational Employment Relations Act (EERA).1
Moberg alleges in his initial and amended charges that he engaged in activity protected
under EERA, and that the District violated EERA section 3543.5(a) by retaliating against him
because
of
his exercise
of
rights under section 3543, including the filing
of
grievances and
otherwise challenging actions by District administrative staff.
On appeal, Moberg asserts that PERB 's Office
of
the General Counsel mistakenly
dismissed his allegations, and urges us to reverse and issue a complaint. The District urges us to
affirm.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

We have reviewed Moberg's unfair practice charge and two amendments, the District's
responses thereto, the Office of the General Counsel's warning and dismissal letters, Mo berg's
appeal, the District's response thereto, and the entire record in light ofrelevant law. Based on
this review, we adopt the warning and dismissal letters as the decision of the Board itself, subject
to our discussion below of the issues raised on appeal and we affirm the dismissal.
We tum now to the procedural history, factual background, Moberg's charge and the
disposition below, contentions of the parties, and discussion.
PROCEDURAL HISTORY
On March 29, 2010, Moberg filed a charge claiming that he engaged in protected activity
and that because of this activity, the District retaliated against him, in various specified ways,
including termination of his employment. On May 28, 2010 and February 15, 2011, the District
responded with position statements. On March 14, 2011, Moberg filed a first amended charge.
On April 15, 2011, May 5, 2011 and August 30, 2011, the District responded with further
position statements.
On August 1, 2011, the Office of the General Counsel issued the attached warning letter,
informing Moberg that the first amended charge failed to state a prima facie violation of EERA
and providing Moberg an opportunity to amend.
On September 15, 2011, Moberg filed a second amended charge. The District filed a
further position statement on October 25, 2011.
On March 1, 2012, the Office of the General Counsel issued its dismissal letter.
On August 20, 2012, after being granted three extensions of time, Moberg filed this
appeal and a request to present new evidence. On September 10, 2012, the District timely filed
its opposition to Moberg's appeal and his request to present new evidence. On September 11,
2

2012, PERB' s Appeals Assistant notified the parties that the filings were complete and that the
case was placed on the Board's docket.2
FACTUALBACKGROUND3
The Parties
The District is a public school employer within the meaning of EERA section 3540 .1 (k)
and the Monterey Bay Teachers Association (MBTA) is an employee organization and Moberg's
exclusive representative within the meaning of EERA section 3540.l(d) and (e). The District
Since the Appeals Assistant notified the parties that the filings were complete,
Moberg has subrnitted five requests to present new evidence, viz., on March 4, 2013,
March 11, 2013, April 15, 2013, December 2, 2013 and June 17, 2014. 	On March 18, 2013,
the District filed an opposition to Mo berg's March 4 and 11, 2013 requests. 	On April 16,
2013, the District notified PERB that it did not object to PERB taking judicial notice of the
California Supreme Court's denial of Mo berg's petition for review of a decision of the
California Court of Appeal for the Sixth Appellate District or of the District's request for
publication of the Sixth Appellate District's decision which was the subject of Moberg' s
petition for review; the District did, however, object to some statements made by Moberg in
his April 15, 2013 request. As of the date of this decision, we have not received any
opposition from the District regarding Moberg's December 2, 2013 or June 17, 2014 requests.
PERB Regulation 32635(d) does not permit a party to present new evidence on appeal unless
good cause is shown. Having failed to file the requests within the time frame for filing the
appeal or demonstrate good cause why the Board should consider the new evidence
notwithstanding the timeliness issue, these documents have not been considered in rendering
this decision. We have, however, taken administrative notice that Moberg has exhausted his
appeals and the decision regarding his dismissal from the District is now final.
3 Because this matter comes before the Board on appeal from dismissal for failure to
state a prima facie case, we are concerned here, as was the Office of the General Counsel, with
whether the charging party alleged a prima facie case, not with making findings of fact or
weighing the parties' conflicting allegations. (San Juan Unified School District (1977) EERB
Decision No. 12 [prior to January 1978, PERB was known as the Educational Employment
Relations Board or EERB]; Golden Plains Unified School District (2002) PERB Decision
No. 1489.) PERB regulations require that the respondent "shall be apprised of the [charging
party's] allegations, and may state in its position on the charge during the course of the [Office
of the General Counsel's] inquiries." (PERB Reg. 32620(c).) On review of a dismissal, we
stand in the shoes of the Office of the General Counsel and thus may consider additional facts,
if any, proffered below by a respondent provided that these additional facts were proffered
under oath in compliance with PERB regulations, complement without contradicting the facts
alleged in the charge, and were undisputed by the charging party. (Service Employees
International Union #790 (Adza) (2004) PERB Decision No. 1632-M; Lake Tahoe Unified
School District (l 993) PERB Decision No. 994; Riverside Unified School District (1986)
PERB Decision No. 562a.)
3

and the MBTA are parties to a collective bargaining agreement (CBA) which has been in effect
at all times relevant herein.
Article VI
of
the CBA provides a grievance procedure. Article VI(D) states that a
conference must take place between the grievant and his or her immediate supervisor prior to the
initiation
of
a grievance. Article VI(E)(
1)
provides that a grievance must be initiated within
15
days after the circumstances which gave rise to the grievance. Article Vl(E)(2) provides that
the "grievance shall be initiated in writing using the Grievance form, and shall be filed with the
immediate supervisor."
The District has promulgated a policy and regulations regarding use
of
its internet and
e-mail network. District Board Policy (BPE 4040) warns that violations
of
its use provisions
could subject users to denial
of
internet and e-mail access and possibly subject them to legal
and/or disciplinary actions. Among the prohibited uses are the storage or transmission
of
"defamatory, abusive, harassing or threatening" communications or material. BPE 4040 warns
users that e-mail sent through the District's network is not privileged or private and may be
reviewed by the District. BPE 4040 also contains a section on "Network Etiquette" which
instructs users that they are expected to adhere to "generally accepted rules
of
network
etiquette," including being polite, respecting privacy, not being disruptive, and avoiding
personal attacks on other users. Additionally, the District's Employee Procedural Handbook
for the 2009-2010 school year contains a section entitled, "District Communications" which
includes "E-Mail Protocols" regarding use, content, advice, and etiquette for District e-mail
communication.
Moberg was hired by the District to teach special education for the 2009-2010 school
year, assigned to the Monterey Adult School, and classified as a probationary certificated
employee. As part of his assignment, Moberg interacted with other District personnel,
4

including Ann Kilty (Kilty), Mo berg's supervisor and the principal of the Monterey Adult
School; Teresa Poirer (Poirer), program manager of the District's moderate/severe special
education program; and Leslie Codianne (Codianne), associate superintendent of student
services, who manages the District's special education programs and supervises Poirer.
Moberg alleges that in the Fall and Winter of 2009-2010, he had interactions with
Kilty, Poirer and Codianne which constituted protected activity, and because of this protected
activity, the District gave him notice in February 2010 that it would terminate his employment.
We discuss below Moberg's allegations concerning these interactions, under the following
headings: 	(1) Disputes with Poirer; (2) disputes with Kilty; (3) the Codianne lesson plan
directive and grievance; (4) the Codianne reprimand and grievance; ( 5) the Kilty final
evaluation; (6) the non-reelection, suspension and dismissal; and (7) subsequent administrative
and judicial proceedings.
1. 	Disputes with Poirer
Beginning in late September of 2009, problems arose between Moberg and Poirer. The
moderate/severe special education program is one of several specialized programs offered by the
District's student support services.
a. 	Poirer' s Authority
On September 23, 2009, Poirer wrote, in relevant part, to Moberg:
Can we please meet soon to discuss some of the proposals you are
making for the adult transition program? I am finding out about
these things after the fact and as the program manager for your
program I need to not only be informed of these things (green
house, workability brochure, etc.) but also approve them, along
with Ann [Kilty]. Perhaps this was not communicated clearly to
you.
5

On September 24, 2009, Heath Rocha (Rocha), the District's director of student support
services, wrote to Moberg in response to a question Moberg had asked him regarding the
workability program and Individualized Education Programs (IEPs)4 :
Second, I want to clarify that Teresa [Poirer] is the Program
Manager and can answer all of your questions related to the
budget, IEP's [sic], etc. If she cannot answer any question, she is
very good about connecting with myself [sic] or Leslie [Codianne].
Our Program Managers are responsible for everything in the
programs and if something goes awry, they are held accountable
by Leslie and I [sic], and thus should have the option to answer any
question or need.
On September 24, 2009, Codianne wrote to Rocha in response to the e-mail exchange
that included the two e-mails cited above, "Hi, I guess we have a problem here?"
b. 	The Grill Day
On or about October 29, 2009, Moberg's students participated in a "grill day" as part of
the program's "Bistro" project which resulted in a profit of $13. In response to an e-mail sent by
Moberg on October 29, 2009, announcing the success of the "grill day," Poirer sent the following
e-mail:
I thought it was understood that we were not going forward with
new projects until all other elements of the program were fulfilled.
In addition, we don't have money in our budget to put towards this
project which I don't feel it [sic] is aligned with the goals of our
program. I felt I made it clear to you that we would wait on
developing other projects, besides the greenhouse, until I gave the
go ahead.
I have already spoken to Leslie [Codianne] letting her know that
we would not be doing the Bistro and she supports me in this. It is
also my understanding that Lorraine [Ramirez]5 did not support the
4 An IEP is a written statement for a student with a disability developed, reviewed and
revised by the student's special education instructor or team with input from his or her parents
and specifies the student's academic goals and the method to obtain these goals. 	(See34 Code
of Federal Regs. 300.20 et seq.)
5 Lorraine Ramirez is another special education teacher in the moderate/severe special
education program.
6

Bistro idea and has said she and her class would not be
participating in
it
	I am fine with you barbequing
on
campus
if
Ann [Kilty] is fine with it, however the Bistro will not be
supported financially by our program. Apparently we are having a
communication break down and need to meet with Ann and Leslie
so we are all clear as to the direction
of
our program and determine
how you and I will work together effectively to provide the
students with the best program possible.
Do either
of
these dates work for everyone to meet?
Friday, Oct. 30th 2:30pm
Wed., Nov. 4th @ 1
pm
Responding to Poirer's e-mail concerning the "grill day," Moberg wrote:
Did you miss Heath's response to the same e-mail?
Also, did you miss the part about the project making a profit, not
costing money?
Lastly, are you actually suggesting that this is such an important
matter that we all need to meet on less than 24 hours notice? [Sic.]
On October 30, 2009, in response to the "grill day" e-mail exchange between Poirer and Moberg,
Codianne wrote, in relevant part:
Eric, I am going to ask you to "STOP" this type
of
e-mail
exchange with staff. 	I do not see this method
of
communication a
means to solve issues in a positive manner. I have asked Patty[6l to
contact you and schedule a meeting with me to discuss the ongoing
issues and concerns being shared with me.
Moberg responded to Codianne's e-mail on November 2, 2009:
I look forward to the meeting I scheduled with you next week. I
welcome the opportunity to respond directly to what is some sort
of
"Swift Boat"[ 7 l operation against me.
6 "Patty" is not identified in the pleadings; presumably she is Codianne's assistant.
7
We understand "swift boat" as used by Moberg to refer to an unfair or untrue political
attack. The term derives from the organization "Swift Boat Veterans for Truth" which
7

I am not certain what you mean by "this type
of
e-mail exchange,"
but I will do my best to comply. I would also point out that my e-
mail is a polite response to a less than polite and less than positive
e-mail from our program manager. At the same time, I would
point out that several weeks ago I requested that we all meet to
discuss the repeated unprofessional and misleading e-mails being
sent to me, inaccurate verbal accusations made about
[sic]
to other
staff and management, and an inaccurate accusation from my
supervisor that I was violating the education code, but no one
responded to schedule that meeting, which leaves me e-mail.
Additionally, to return to the Swift Boat analogy, I learned from
John Kerry's mistake
of
not responding when someone unfairly
attacks you. I will not make that mistake.
c.
	The Target Account and the Parent Complaint
On November 4, 2009, Poirer wrote to Moberg asking for receipts for items that were
purchased at Target. Poirer apparently believed that Moberg had spent $300 beyond his "P.O."
limit at Target.8 In addition, Poirer asked that Moberg provide her with written IEPs at least two
days prior to IEP team meetings so they could "discuss goals and make corrections
if
necessary
before the meeting."
In response, on November 4, 2009, Moberg wrote to Codianne, Kilty and Rocha:
I have never spent one penny at Target.
Can any
of
you stop Teresa [Poirer] from repeatedly defaming me?
Can any
of
you stop Teresa from continuing to pretend she is my
supervisor and bossing me around? I have written over 300 IEPs
conducted a widely-publicized campaign against 2004 U.S. Presidential candidate John Kerry.
(See Zernike, Veterans Long to Reclaim the name 'Swift Boat,
'The
New York Times Online
(June 30, 2008).)
8 Purchase Order (P.O.) limit was not explained, but, based on the context in which it
was used in the e-mails between Moberg and other District employees, we presume thatthe
District has some sort of account at Target stores whereby District employees can purchase
items and bill them to the District.
8

in my career and acted as Administrative Designee on 100 more.
Teresa Poirer has had her PPS credentia1[9l for a little over a year.
On November 13, 2009, Moberg wrote to Poirer asking if she had informed Codianne
that there had been a parent complaint against him. In response, Codianne wrote to Moberg on
November 15, 2009, asking:
Eric, what is the intent of this e-mail? I thought you understood
that I have requested that you put an end to e-mail communications
which are aimed at "challenging" authority figures and questioning
program decisions. I hope this is very clear!
On November 15, 2009, Moberg responded to Codianne, as follows:
Associate Superintendent Codianne:
My intent was to determine why you asked me ifthere had been
any parent complaints. It occurred to me that this was likely based
on some false claim made by Teresa Poirer, who has made many
false claims about me to many people lately, including a recklessly
false claim that I spent $500 at Target without authorization. Did
you ask Teresa to see any receipts?
I think I have every right to ask such a question under such
circumstances to any person, regardless of what authority they
claim or actually have.
Would I not have a right to ask such a question to the President of
the United States? Journalists do every day. I think we both know
that I would, so why, then, would I not have the right to ask the
question to a psychologist who has no authority over me, by law,
since she has no administrative credential?
Teresa has repeatedly reminded me that you two are personal
friends and that her husband is your personal carpenter. I have no
idea if either claim is true, given the source, but if they are, do you
have a conflict of interest here? You don't seem to mind me
challenging Ann Kilty and sending copies to the Superintendent
and School Board President. After all, Ann Kilty is my actual
supervisor and many of my challenges actually relate to program
decisions she has made or allowed Teresa to make.
9 A PPS credential is a credential which authorizes individuals to provide school
services in grades 12 and below, including preschool, and in classes organized primarily for
adults as counselors, school psychologists, school social workers, or school child welfare and
attendance regulators, according to the specific specialization area and service authorization
listed on the credential. (See Ed. Code, § 44266.)
9

Is there some reason that you can't allow Teresa to answer a
simple question? If she made the claim then why shouldn't I know
what it is? If there were a legitimate parent complaint, shouldn't
we all address it?
If, on the other hand, Teresa did not make any such claim to you,
then why not just let her answer the question?
How is my asking a psychologist if she has claimed there was a
complaint about me "challenging" an "authority figure" or
"questioning program decisions"?
The real issue here is honesty--do we have a credentialed
psychologist who is consistently dishonest?
After reading your below response [previous e-mail], I conclude
that a) Teresa did make such a false claim to you, b) you knew it
was likely false, and c) you are now protecting her from herself.
So, if I do not hear from you or Teresa, I will assume that I am
correct, and we can move on.
Let's see what our colleague Jill Low thinks about thisY0l
On November 16, 2009, Codianne responded to Moberg, stating that she was "very
uncomfortable with the tone and intent" of Moberg's November 15, 2009, e-mail and that she
had told Moberg to stop sending "challenging" e-mails to all staff including Kilty.
d. 	The Nextel Phone
On November 23, 2009, Poirer sent Moberg an e-mail asking for a list of the Nextel
phone numbers used in his class. 11 On November 24, 2009, Mo berg sent an e-mail to Poirer:
Thank you for questioning my use of the MPUSD Nextel phones
that MCOE sent over with the program.
I looked for you this morning at your office to turn mine in to you
personally, but I could not find you, so I gave my Nextel to
Sharon Ogawa. She promised to get it to you.
10 Jill Low (Low) is the president of the MBTA.
11 The Monterey County Office of Education (MCOE) provides Nextel phones to
District staff members in the moderate/severe special education regional program in which
Moberg was assigned.

The truth is that I never requested the phone and do not want the
responsibility
of
the MPUSD Nextel phone. 	Some
of
my fellow
staff members feel the same way.
I'll
get you a list later today.
Also on November 24, 2009, Codianne sent Moberg an e-mail which, in relevant part, stated:
I am requesting that you utilize the Nextel that the Department
provided to you as part
of
the Regional Program. It is important
that you
...
have a District phone available to you to access in
emergency situations that require direct and timely
communication with outside sources.
On November 30, 2009, Moberg responded to Codianne by e-mail,
"I
will certainly
comply with your directive, which you diplomatically couch in terms
of
a request, to utilize the
MPUSD Nextel."
e. 	The Cardiopulmonarv Resuscitation (CPR) and First Aid Cards
On November 23, 2009, Poirer sent Moberg an e-mail asking for copies
of
his current
CPR and First Aid cards. The District had scheduled a CPR/First Aid training which was
mandatory for employees who were not currently certified. In response, Moberg wrote,
"It
is in HR, and I do not waive my privacy rights for you to access my file."
On November 30, 2009 Poirer wrote back, "That's fine, I just need the dates so
we
know when they expire."
Moberg never responded to Poirer's request.
f. 	The Student Files
On or about December 9, 2009, Moberg returned to his classroom after making copies
and found Poirer searching for files in a cabinet. Poirer explained that she was looking for
records that she needed and has access to as program manager and did not think Moberg would
mind since the cabinet was unlocked.
11

On December 11, 2009, Moberg wrote, in relevant part, to Poirer:
Thanks for the note and the agreement, and
if
we ever hold an
IEP meeting in your office, I agree not to "help myself' to your
files while you step out to make copies.
Lastly, aren't you taking your job title
of
"psychologist/program
manager" a little too seriously? 	You've had a pupil personnel
services credential for what, less than two years?
On December 11, 2009, Codianne wrote to Moberg:
I have decided to make an administrative decision and effective
immediately, I am requesting that ALL questions, concerns,
requests, etc. for your classroom and students
go
directly and
immediately to Heath Rocha.
On January 4, 2010, Poirer filed a formal complaint with the District against Moberg.
Poirer claimed that Moberg's behavior had become increasingly hostile and disrespectful
toward her over the course
of
the school year and that Moberg frequently refused to work with
her. As a result
of
Moberg's behavior, claimed Poirer, it was becoming impossible for her to
perform the duties
of
her job and "provide a safe supportive environment for our students."
Poirer also noted what she viewed as a lack
of
judgment on Moberg's part because he had
stored power tools in his classroom and had transported a "physically fragile, orthopedically
impaired student in his own personal vehicle without proper restraint." Poirer also claimed
that two of the instructional assistants assigned to Moberg' s class had complained about
Moberg and one was being transferred to another class because
of
Mo berg's "treatment
of
her
and the lack
of
organization and structure in his classroom."
On January 25, 2010, Poirer sent an e-mail to several District administrators asking for
help in obtaining records pertaining to some of Mo berg's students. The e-mail was entitled,
"Need info from files, Eric won't give access to files." According to Poirer's e-mail, she
needed to update files for several of Mo berg's students, and she had sent an instructional
12

assistant to Moberg's class to make copies from Moberg's files but he refused to give her
access to the files.
2. 	Disputes with Kiltv
As the site supervisor
of
the Monterey Adult School, Kilty was Mo berg's immediate
supervisor.
a.
	The Observation Grievance
On September 29, 2009, Kilty observed Moberg's class. Kilty rated Moberg as meeting
District standards in two categories and partially meeting District standards in two categories.
Overall, Kilty rated Moberg as partially meeting District standards.
On November 6, 2009, Moberg wrote to Codianne asking:
What are we going to do about Ann Kilty's serially defamatory
September 29, 2009 observation critique
of
my work. [Sic.] In
other words, do we want such an inaccurate document in my
personnel file and subject to subpoena at a Due Process hearing [to
assess the appropriateness
of
an IEP for a particular student]?
Wouldn't this leave our attorney with the dilemma
of
either
a) allowing the document to impeach my competence or
b) questioning Ann Kilty in front
of
the Administrative Law Judge
to impeach her honesty?
On November 9, 2009, Kilty again observed Moberg's class. Kilty rated Moberg as
meeting District standards in two categories and partially meeting District standards in four
categories. Kilty's overall assessment of Moberg was that he partially met District standards.
On November 12, 2009, Moberg sent Kilty an e-mail regarding the September 29, 2009
observation, which Moberg described in the e-mail as a "grievance under the relevant contract
language." On November 22, 2009, Moberg e-mailed Kilty to ask her
if
she was available to
meet regarding his grievance over his observation. Kilty responded that she was not available
until after the Thanksgiving break. Moberg responded with an e-mail asking Kilty about the
13

timeline for his grievance and whether Kilty was asking him to waive it. On November 23,
2009, Kilty wrote in response:
I am not asking for you to waive your timeline for a grievance.
Please refer to MBTA and MPUSD Master Contract pg 10,
Item 2.
"A grievance shall be initiated in writing using the Grievance
form, and shall be filed with the immediate supervisor." I did
receive your email from 11/12 but have not yet received the
Grievance Form ....
Item 3. Please specify your grievance according to the ' ... the
(sic) specific Article and section(s) allegedly violated,
misinterpreted or misapplied, etc.' 	I have not yet received the
specific sections of violation.
Kilty went on to explain that the first step in the grievance process was a conference and
offered Moberg a choice of dates and times when she was available.
On December 7, 2009, Moberg filed a grievance with Kilty alleging twenty six (26)
contract violations. 12 The violations that Moberg alleged primarily concerned Kilty's
September and November 2009 observations of Mo berg's class as well as equipment and
repair issues regarding Moberg's class that Kilty, as the site supervisor, had not addressed.
b. 	Campus Keys
On October 27, 2009, Moberg asked Kilty for a key to the multi-purpose room (MPR) on
the Monterey Adult School campus. Kilty informed Moberg that:
We have limited the check out of keys this year because of some
security concerns in the past. Someone is always at the MPR to let
you in. Please just call the front office and we'll open the door.
On November 13, 2009, Moberg sent Kilty an e-mail asking her if the real reason she did
not give him a key to the gym or submit a work order for a fan and light he had requested for a
12 Moberg alleged several different filing dates for his "26 point grievance," we find, as
did the Office of the General Counsel, that it was filed on December 7, 2009.
14

diaper changing room was because "you don't want our program on the campus?" Kilty's
response e-mail denied Moberg's accusation.
On January 4, 2010, Moberg again asked Kilty for keys, as follows:
[W]hy don't you just give me and Lorraine [Ramirez] keys to the
MPR as President Low suggested so we don't need to bother
anyone else?
I know that other Monterey Adult School faculty and non-
credentialed staff have keys to the MPR.
You do trust Lorraine and me, don't you?
3. 	The Codianne Lesson Plan Directive and Grievance
As Associate Superintendent of Student Services, Codianne oversaw several specialized
programs within the District, including the moderate/severe and workability programs in which
Moberg's students participated.
On January 21, 2010, Codianne observed Moberg while he taught his class. Codianne
rated Moberg as meeting District standards in two categories and partially meeting District
standards in four categories. Overall, Codianne rated Moberg as partially meeting District
standards. During her observation, Codianne asked to see Moberg's lesson plan. In a written
recommendation to Moberg following the observation Codianne stated, in relevant part:
The lack of specific plans that clearly delineate the Instructional
Goal; Materials needed for instruction; Expected student
outcomes; or, Method of assessment resulted in the lesson being
directed by Mr. Moberg and his IAs as being disorganized and
disjointed. The lack of documented planning also was observed in
transitions from one activity to the next being unclear.
On January 27, 2010, in an e-mail to Ramirez, Moberg asked to see Ramirez's lesson
plans explaining that he was "working on a project for Leslie Codianne." Ramirez apparently
contacted Codianne, who responded to Moberg:
I have instructed Lorraine [Ramirez] "NOT" to share her lesson
plans with you!!! If you and Lorraine work on a co-planned
activity you work together on that lesson plan. At no time in our
15

Post Observation Conference did I state that you would be working
on a "project" for me. I clearly stated that you were expected to
have Weekly Lesson Plans developed as part of your
responsibilities as a Credentialed Teacher. You requested from me
support in Writing Lesson Plans and I will provide you with that
support and identify specifically who will act as your Coach in this
matter!
On February 3, 2010, Moberg circulated a "draft" grievance to unspecified District staff
asking that they "Please review the below for facts. Let me know if you see any errors. I would
like to file it this week, so as not to violate any timelines." The "draft" grievance concerned the
increase in Moberg's work day due to the requirement that he produce lesson plans. In this
grievance, Moberg claimed that the iesson pian requirement was in retaliation for his
December 7, 2009 grievance.
4. 	The Codianne Reprimand and Grievance
On January 25, 2010, Codianne issued Moberg a letter ofreprimand. The letter primarily
concerned an incident where one of Mo berg's students had "soiled herself' when he had left the
classroom to go to Monterey Peninsula College. The letter alleged that school staff were unable
to contact Moberg, either on his District Nextel radio/phone or his personal cell phone, and
consequently had to transport the student to her group home in the District van. The reprimand
noted an incident earlier in November 2009 when the parent of one of Mo berg's students was
unable to contact Moberg on the Nextel phone. The reprimand cited Codianne's November 24,
2009, directive to Moberg that he use his Nextel "for all communications with Administrators,
staff and families during school hours and activities in the community." Codianne had instructed
Moberg to always have his Nextel turned on "to ensure you can be readily reached by District
staff."
On February 8, 2010, Moberg filed a grievance over the letter of reprimand.
16

5. 	The Kilty Final Evaluation
On February 5, 2010, Kilty evaluated Moberg. 	She rated Moberg as partially meeting
District standards in five categories and below District standards in one category, viz.,
"Developing as a Professional Educator Including Adjunct Duties." As to this category Kilty
remarked on the evaluation form:
Mr. Moberg has had difficult and occasionally adversarial
relationships with colleagues including peers and administration
as evidenced in numerous email exchanges.
Recommendation:
Cease email communication that is not respectful of colleagues.
Kilty recommended that Moberg, a probationary employee, not be reemployed.
6. 	The Non-reelection, Suspension and Dismissal
On February 9, 2010, pursuant to Education Code section 44929.21, the District
governing board decided not to reelect Moberg to a second year as a probationary employee of
the District, thus severing his employment at the conclusion of the then-current 2009-2010
school year.
In addition, on February 9, 2010, pursuant to Education Code section 44948.3, the
District governing board adopted a statement of charges and notice of recommendation for
dismissal of Moberg. 	Concurrently, the District governing board imposed on Moberg an
immediate suspension without pay. The statement of charges specified that Moberg was to be
dismissed for cause, to wit, evident unfitness for service (Ed. Code, § 44932(a)(5)) and
persistent violation of or refusal to obey school laws and regulations (Ed. Code,
§ 44932(a)(7)), and that he could request a hearing on the charges.
On February 12, 2010, Superintendent Marilyn K. Shepherd (Shepherd) wrote to
Moberg, informing him of the governing board's actions, transmitting the charges and
17

suspension notice, and directing Moberg not to go to any District site, conduct any business on
behalf of the District, or attend any District meetings. Moreover, Shepherd wrote:
We have received complaints from employees about you making
contact with them either directly or through their District and
personal email accounts. 	You are hereby directed to respect the
wishes of our employees who do not wish to have contact with
you. 	We hope it will not be necessary for us to obtain a
restraining order in this regard, but we are informing you that if
you ignore the wishes of our employees, we will do so. Any
contact to the District should be through me.
On March 3, 2010, Moberg filed a grievance regarding the statement of charges and
suspens10n.
On June 7, 2010, the District added a third charge to the pending administrative hearing
on the statement of charges, to wit, dishonesty. 	(Ed. Code, § 44932(a)(3).) 13
7. 	Subsequent Administrative and Judicial Proceedings
a. 	The Administrative Law Judge's (ALJ) Dismissal
On June 21 and 22, 2010, an ALJ retained by the District conducted a hearing on the
District's dismissal charges. The ALJ issued the proposed decision on August 12, 2010. 	The
ALJ concluded that although the District had not proved up evident unfitness for service, the
District had cause to dismiss Moberg for dishonesty and persistent violation of or refusal to
obey school laws and regulations. The ALJ stated:
Special education is an area where a team approach is not only
desirable, but essential. The evidence demonstrated that during
Respondent's brief tenure with the District he was rude and/or
disrespectful to various fellow staff members on numerous
occasions. Respondent's e-mail messages convey the opposite of
13 The District averred that a statement in Moberg's employment application was
misleading. 	Moberg had stated that he left prior employment with the San Mateo County
Office of Education (SM COE) to "seek better opportunities and avoid budget and program
cuts." The District averred that its investigation had uncovered that Moberg's prior employer
had initiated dismissal proceedings which were settled with Moberg's agreement to resign.
The District averred that it never would have hired Moberg had it known the circumstances in
which he left his prior employment.
18

a good faith effort to be a contributing member
of
a team. The
record contains three warnings from his superior to stop using
email in the manner that Respondent was using it. Respondent,
however, did not stop. In addition, it was proven that Respondent
was dishonest, and he presented no real evidence
of
rehabilitation
or even mitigation.
By
his testimony, Respondent conveyed an
attitude consistent with that conveyed in his e-mail
communications and consistent with the conclusion that he felt
justified in both his persistent violation
of
directives and in
claiming that his reason for leaving the employ
of
SM COE was
not related to a dismissal proceeding. Accordingly, it is
concluded that the District's dismissal
of
Respondent was
warranted.
(OAH Case No.2010031130, pp. 7-8.)
On September 7, 2010, the District governing board adopted the ALJ's proposed
decision and voted unanimously to dismiss Moberg. 	On November 4, 2010, Moberg sought
review
of
the dismissal in Monterey County Superior Court.
b. 	The Superior Court Decision
On September 15, 2011, the Superior Court issued its judgment, which adopted its
statement
of
intended decision issued on August 23, 2011, upholding the dismissal and
denying Mo berg's petition for a writ
of
mandate. (1\1oberg
v.
Monterey Peninsula Unified
School District Board
of
Education (Super. Ct. Monterey County, September 15, 2011,
No. M109124) (Moberg I).) The court ruled that the administrative record did not support a
finding
of
dishonesty, but did support a finding
of
unfitness to teach and
of
persistent violation
of
or refusal to obey school laws and regulations. (Moberg
I,
p. 9.) As to persistent violation
of
or refusal to obey school laws and regulations, the court determined that Moberg'sconduct
during his employment with the District demonstrated acts which were willful, persistent and
repeated, and affected students. (Moberg I, p. 12.) As to unfitness to teach, the court found
19

that Moberg's conduct during his employment with the District demonstrated unfitness for
services which was attributable to a defect in his temperament.
14
(Moberg
I,
pp. 14-16.)
Moreover, Moberg's Petition to the Superior Court had alleged that
The California Education Employees Representation Act (sic)
protects teachers, such as Petitioner, from retaliation for
complaining.
Responding thereto, the court found that the administrative record did "not demonstrate by a
preponderance
of
the evidence that the protected activities were a contributing factor in the
alleged retaliation." (Moberg
I, p. 16.) The court noted: (1) the claimed retaliation was not
raised at the administrative hearing; (2) there was no evidence that Moberg's alleged
disclosures
of
mis-management
of
the special education program or his complaint about the
failure to add a fan and light to the diaper changing room were protected under the Reporting
by School Employees oflmproper Governmental Activities Act (Ed. Code,§ 44110 et seq.);
and (3) even
if
the disclosures were protected, there was no evidence that they motivated the
dismissal. The court stated: "[T]he administrative record suggests that the dismissal
of
petitioner was motivated by his inability to work with other staff members, which negatively
affected the special education program." (Moberg I, p. 17.) Additionally, the court dismissed
summarily Moberg's claim that he was subjected to disparate treatment, observing that Moberg
had not raised this claim as a defense at the administrative hearing and that the evidence
suggested that the District was motivated to dismiss Moberg because
of
his inability to work
with others. (Ibid.)
14
Citing Woodland Joint Unified School Dist. v. Commission on Professional
Competence (1992) 2 Cal.App.4 th
1429 (evident unfitness for service connotes a fixed
character trait, presumably not remediable merely on receipt of notice that one's conduct fails
to meet the expectations of the employing school district); Morrison
v.
State Board
of
Education (1969) 1 Cal.3d 214 (listing factors used in determining whether a teacher's conduct
indicates unfitness to teach).
20

Moberg appealed.
15
C. 	The Appellate Court Decision
On January 11, 2013, the California Court of Appeal, Sixth Appellate District issued its
unpublished decision in Moberg v. Monterrey Peninsula Unified School District Board of
Education (Jan. 11, 2013, H03 7865) (Moberg JI). 	The appellate court concluded that
substantial evidence supported the lower court's decision to sustain the dismissal on the ground
of persistent violation of or refusal to obey school laws or regulations. The appellate court
wrote:
[T]hese emails demonstrate Moberg's repeated sending of
abusive and attacking email communications to District staff
during his employment with the District and constitute evidence
demonstrating his persistent violation of or refusal to obey school
rules regarding email etiquette and network etiquette as stated in
the Employee Procedural Handbook and the "Employee Use Of
Technology" policy. Accordingly, we conclude that the trial
court's ruling that Moberg was properly dismissed for cause on
the ground of persistent violation of or refusal to obey school
laws or regulations(§ 44932, subd. (a)(7)) due to his repeated
violation of the District's email rules and policy is supported by
substantial evidence.
Having reached this conclusion, we need not consider Moberg's
additional claims that the trial court erred in finding that the
weight of the evidence supported his dismissal for evident
unfitness for service [Ed. Code,] § 44932, subd. (a)(5)).
(Moberg JI, p. 29.) As to Moberg's retaliatory dismissal and disparate treatment claims, the
appellate court concluded that Moberg had waived them by failing to raise them at the
administrative hearing. Moberg unsuccessfully sought both rehearing and Supreme Court
review. 	On February 4, 2013, the Sixth Appellate District denied Moberg's petition for
rehearing. On April 10, 2013, the California Supreme Court denied both Moberg's petition for
review of the Sixth Appellate District's decision and the District's publication request.
5 We here mention the outcome of the Appellate Court decision for the sake of clarity.
We do not rely on the Appellate Court's decision in reaching our conclusions.
21

(Moberg v. Monterrey Peninsula Unified School District Board of Education (Apr. 10, 2013,
S208518).
MOBERG'S CHARGE AND THE DISPOSITION BELOW
1. 	Initial and First Amended Charge
On March 29, 2010, Moberg filed his initial unfair practice charge alleging that the
District retaliated against him for filing a "26 point" grievance. The District's May 28,2010,
position statement denied Mo berg's allegations and any violation of EERA. The District urged
that there was no nexus between Moberg's protected conduct and the adverse actions taken by
the District. The District submitted a further response on February 15, 2011 which included,
inter alia, the ALJ's proposed decision from Moberg's Education Code dismissal hearing and the
District governing board's resolution adopting the ALJ's proposed decision. The District also
raised the issue of collateral estoppel of Mo berg's retaliation claims.
On March 15, 2011, Moberg filed his first amended charge. In his amended charge,
Moberg alleges that several e-mails from November 2009 through January 2010, were in
furtherance of the grievance process.
On April 15, 2011, the District submitted a supplemental response, addressing the instant
charge as well as four other unfair practice charges which Moberg had filed. As to the instant
charge, the District denied Moberg's allegations, claimed that Moberg mischaracterized the
District's evaluations and observations of his work, and claimed that it brought the supplemental
dismissal charge against Moberg in June 2010, because ofMoberg's dishonesty, not in
retaliation for Moberg's protected conduct.
Warning Letter
The Office of the General Counsel issued a warning letter on August 1, 2011, notifying
Moberg that his first amended charge did not state a prima facie case ofretaliation. The Office
22

of the General Counsel relied on Novato Unified School District (1982) PERB Decision
No. 210 (Novato).
a. 	Protected Conduct and Employer Knowledge
Applying the Novato, supra, PERB Decision No. 210 test, the Office of the General
Counsel determined that Moberg had engaged in protected conduct by filing grievances.
(Sacramento City Unified School District (2010) PERB Decision No. 2129.) The Office of the
General Counsel also determined that the District had knowledge of this protected conduct
since the grievances would have likely been filed with a District manager and the District did
not deny that it knew of the grievances. (Oakland Unified School District (2009) PERB
Decision No. 2061.)
The Office of the General Counsel concluded, however, that Mo berg's e-mail messages
of November 2, 4, 6, 15, 2009 and January 4, 2010, were not protected activity because the
e-mails did not constitute group activity, being undertaken for the sole benefit of Moberg
himself, a single employee. (Los Angeles Unified School District (2003) PERB Decision
No. 1552 (Los Angeles).) Nor did Mo berg's merely sending a copy of one of the e-mails to his
union rep rise to a solicitation of union assistance or otherwise implicate EERA protections.
(Oakland Unified School District (2007) PERB Decision No. 1880.)
b. 	Adverse Action
The Office of the General Counsel noted that Mo berg's initial and first amended charge
set forth seven (7) allegedly adverse actions by the District: (1) the requirement that Moberg
prepare lesson plans; (2) a directive that Moberg only speak with Codianne; (3) the decision to
non-reelect Moberg for the 2010-2011 school year; (4) the adoption of the statement of
charges; (5) a directive that Moberg only speak with District Superintendent Shepherd; (6) the
23

adoption of the supplemental charge of dishonesty for dismissal; and (7) the resolution to adopt
the ALJ's proposed decision of dismissal.
The Office of the General Counsel determined that the notice of non-reelection and the
adoption of the statement of charges constituted adverse actions by the District. The Office of
the General Counsel concluded that the March 14, 2011, allegation concerning the District's
September 7, 2010, resolution to adopt the ALJ' s proposed decision of dismissal was untimely.
Similarly untimely were the March 14, 2011, allegation concerning the June 2010 adoption of
the dishonesty charge, and the March 14, 2011, allegation concerning a directive that Moberg
speak only with Codianne which although not dated in Moberg's amended charge, was not
alleged in the initial charge and thus likely occurred more than six months prior to the filing of
the first amended charge. The Office of the General Counsel concluded that as to the directive
to speak only with Shepherd, there was an insufficient showing, and as to the directive that
Moberg prepare written lesson plans, Moberg did not allege how this duty applicable to all
District teachers was adverse as to him.
c. 	Nexus
The Office of the General Counsel concluded that although Moberg had established a
close temporal proximity between his protected conduct and the District's adverse actions, he
had failed to allege facts demonstrating a sufficient causal nexus. The Office of the General
Counsel concluded that Moberg had failed to establish that he was treated disparately from
similarly situated employees and, that, contrary to Moberg's allegations, the observations and
evaluation did not demonstrate that he met District standards. The Office of the General
Counsel concluded that Moberg had failed to provide evidence of union animus and that the
District's statement of charges and resolution of dismissal set forth numerous specific reasons
justifying Moberg's dismissal under the Education Code and were not exaggerated.
24

d. 	Interference with Moberg' s Right to Collect Evidence
The Office
of
the General Counsel concluded that under EERA an employer's
duty
to
provide information runs only to the exclusive representative and does not extend to individual
employees. (Antelope Valley Hospital District (2011) PERB Decision No. 2167-M.)
2. 	Second Amended Charge
On September 15, 2011, Moberg filed his second amended charge. Therein Moberg set
forth allegations regarding the court proceedings arising out
of
his dismissal, and claimed
that
several e-mails that were the basis for his dismissal were either "informal grievances" under the
CBA or requests for union assistance. Moberg also alleged that the District exaggerated and
misrepresented the causes for dismissal against him, that he had begun complaining about racial
discrimination, mis-management
of
funds and false statements by his immediate supervisor on
September 24, 2009, and that the District interfered with his due process rights under the
dismissal proceedings.
The District responded with its second supplemental position statement on October 25,
2011. In it, the District: (
1)
argued that Moberg' s retaliation allegations were barred by
the
doctrine
of
collateral estoppel; (2) provided the District's version
of
the various court
proceedings arising from and after its dismissal
of
Moberg; (3) responded to Mo berg's retaliation
claims; and (4) urged that Moberg's November 2009 and January 2010 e-mails were not
protected conduct.
3. 	The Office
of
the General Counsel's Dismissal Letter
On March 1, 2012, the Office
of
the General Counsel determined that Moberg's second
amended charge did not cure the deficiencies noted in the warning letter and dismissed
his
charges.
25

a. 	Protected Activity
The dismissal letter noted that Moberg characterized his November 2, 4, 6, 15, 2009
and January 4, 2010, e-mails as "informal grievances." The Office of the General Counsel
rejected that characterization, stating "there does not appear to be any connection between
these e-mail messages and any collective concerns of the bargaining unit." (Dismissal Ltr.,
p. 8.) Moreover, because Moberg had alleged for the first time in his second amended charge
filed on September 15, 2011, that in the Fall of 2009, he had complained to the District about
racial discrimination against his students, mis-management of funds by the District and false
statements made by Kilty on her observations of him in September 2009, the Office of the
General Counsel dismissed these allegations as untimely.
b. 	Adverse Action
The Office of the General Counsel addressed Mo berg's contention that his allegation in
March 2011 of the District's adoption in September 2010 of the ALJ's proposed decision of
dismissal was timely because the action was an extension of the February 9, 2010, statement of
charges which he had alleged in March 2010. The Office of the General Counsel disagreed,
ruling that under PERB' s precedents the notice of intent to dismiss and the subsequent
dismissal itself, are separate adverse acts, each of which triggers separately the six-month
limitations period. (Regents of the University of California (2004) PERB Decision
No. 1585-H (Sarka); Los Banos Unified School District (2009) PERB Decision No. 2063.)
c. 	Nexus
The Office of the General Counsel concluded that since the November 2009 and
January 2010 e-mails were not protected conduct, they could not form the basis of a prima
facie case for retaliation. Moreover, noted the Office of the General Counsel, even if the
e-mails were protected, in the Education Code dismissal proceeding the District objected to the
26

number and tone of the e-mails, which allegedly transgressed the District's e-mail policy and
regulations, rather than to the content of the e-mails which concerned Moberg' s workplace
concerns. Therefore, even if the e-mails were protected, Moberg had failed to establish a
nexus between this allegedly protected activity and the notice of dismissal.
The Office of the General Counsel also concluded that the factual allegations failed to
establish a nexus between Mo berg's conduct and the District's actions. The Office of the
General Counsel rejected Moberg's contentions that: the District had misrepresented his work
performance; the District decided to non-reelect him for vague and insufficient reasons; the
District made a cursory investigation of the events that led to Codianne's January 25, 2010
letter of reprimand; the District had a practice of always re-electing first-year probationary
teachers who met District standards, from which it departed in Moberg's case; the District
treated Moberg differently from other teachers; and the District unlawfully suspended Moberg
without pay while his dismissal hearing was pending.
The Office of the General Counsel did not address the District's contention that Moberg
was collaterally estopped to raise the retaliation allegations in his second amended charge
because Moberg had litigated these claims in superior court.
CONTENTIONS OF THE PARTIES ON APPEAL
On appeal, Moberg contends that the Office of the General Counsel mistakenly
concluded that: (1) Moberg's November 2, 6, 15, 2009 and January 4, 2010, e-mails were not
protected activity; (2) the District's September 7, 2010, resolution to dismiss Moberg did not
relate back to his timely filed allegation challenging the February 2010 notice of intent to
dismiss; (3) the District's directive not to speak with anyone other than Shepherd was not
adverse; (4) the requirement that he produce lesson plans was not adverse; (5) there was no
direct or circumstantial evidence of nexus between his protected conduct of filing grievances
27

and the District's termination
of
his employment; and (6) the February 2010 immediate
suspension without pay did not indicate unlawful motivation.
Moberg also claims on appeal that the Office
of
the General Counsel mis-stated and
omitted several essential factual allegations and that the Office
of
the General Counsel
improperly relied on the superior court's decision in Moberg
I,
because it was then still
pending before the appellate court. Additionally, Moberg urges that misconduct by the District
and its law firm is evidence
of
unlawful motivation.
16
Lastly, Moberg urges that PERB should
reject the District's contention that he is collaterally estopped to bring his retaliation charge
before PERB.
The District responds that Moberg's appeal should be denied because he has failed to
demonstrate that the Office
of
the General Counsel erred in dismissing his charges. In
addition, the District again argues that Moberg's retaliatory dismissal allegation is barred
under the doctrine
of
collateral estoppel.
DISCUSSION
We review briefly the prima facie case ofretaliation under EERA and then address the
parties' contentions on appeal.
The Prima Facie Case of Retaliation
To establish a prima facie case
of
retaliation in violation
of
EERA section 3543.S(a),
the charging party must show that: (1) the employee exercised rights guaranteed by EERA;
(2) the employer had knowledge of the employee's exercise of those rights; (3) the employer
took action against or adverse to the interest of the employee; and (4) the employer acted
16
We conclude that Moberg' s allegations regarding misconduct in other cases by the
law firm hired by the District are not necessarily indicative of misconduct by that law firm in
Moberg's case. Therefore, we find that this allegation lacks relevance.
28

because
of
the employee's exercise
of
the guaranteed rights. (Novato, supra, PERB Decision
No. 210.)
Unlawful motive is "the specific nexus required in the establishment
of
a prima facie
case"
of
retaliation. "[D]irect proof
of
motivation is rarely possible, since motivation is a state
of
mind which may be known only to the actor. Thus
...
unlawful motive can be established
by circumstantial evidence and inferred from the record as a whole." (Novato, supra, PERB
Decision No. 210, p. 6;
Carlsbad Unified School District (1979) PERB Decision No. 89
(Carlsbad); Republic Aviation Corp.
v.
NLRB (1945) 324 U.S. 793; Radio Officers' Union
v.
NLRB (1954) 347 U.S. 17, 40-43.)
17
To assist with assessing circumstantial evidence
of
unlawful motive, PERB has
developed a set
of
"nexus" factors. Although the timing
of
the employer's action in close
temporal proximity to the employee's protected activity is an important factor
(North Sacramento School District (1982) PERB Decision No. 264 (North Sacramento)), it
does not, without more, demonstrate the necessary nexus between the employer's action and
the protected activity. (]vforeland Elementary School District (1982) PERB Decision No. 227.)
Along with suspicious timing, facts establishing one or more
of
the following factors
must also be present for a prima facie case: (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
17
When construing California Public Sector Labor Relations statutes, California courts
and PERB rely on National Labor Relations Board (NLRB) and judicial decisions construing
similar language in the National Labor Relations Act. (San Mateo City School Dist.
v.
Public
Employment Relations Bd. (1983) 33 Cal.3d 850; Fire Fighters Union
v.
City
of
Vallejo (1974)
12 Cal.3d 608.)
29

California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the
employer's cursory investigation of the employee's misconduct (City of Torrance (2008)
PERB Decision No. 1971-M; Coast Community College District (2003) PERB Decision
No. 1560; (5) the employer's failure to offer the employee justification at the time it took
action ( Oakland Unified School District (2003) PERB Decision No. 1529) or the offering of
exaggerated, vague, or ambiguous reasons (McFarland Unified School District (1990) PERB
Decision No. 786); (6) employer animosity towards union activists (Jurupa Community
Services District (2007) PERB Decision No. 1920-M; Cupertino Union Elementary School
District (1986) PERB Decision No. 572); or (7) any other facts that might demonstrate the
employer's unlawful motive (North Sacramento, supra, PERB Decision No. 264; Novato,
supra, PERB Decision No. 210).
Where the employer's motive is the central issue, the fact finder must often rely heavily
on circumstantial evidence and inferences. 	Only rarely will there be probative direct evidence
of the employer's motivation. (Shattuck Denn Mining Corp. v. NLRB (9th Cir. 1966)
362 F.2d 466 (Shattuck Denn).) An illegal purpose harbored by a discriminating employer
may be inferred from the circumstances surrounding the discipline or discharge. 	These may
include anti-union animus exhibited by the employer or its agents; the pretextual nature of the
ostensible justification; or other failure to establish a business justification. (Shattuck Denn.)
In such cases, the Board is free to draw inferences from all the circumstances, and need not
accept an employer's self-serving declarations of intent, even if they are uncontradicted.
(NLRB v. Walton Mfg. Co. (1962) 369 U.S. 404; NLRB. v. Mrak Coal Co. (9 th Cir. 1963) 322
F.2d 311; NLRB v. Pacific Grinding Wheel Co., Inc. (9th Cir. 1978) 572 F.2d 1343; NLRB v.
Warren L. Rose Castings, Inc. (9 th Cir. 1978) 587 F.2d 1005; Royal Packing Co. v.
Agricultural Labor Relations Bd. (1980) 101 Cal.App.3d 826.)
30

Moberg's Prima Facie Case
There is no dispute that Moberg engaged in protected conduct by filing grievances.
There is no dispute that the District knew that Moberg filed grievances. There is no dispute
that the District took adverse action against Moberg. Therefore, Moberg has successfully
alleged the first three requirements for a prima facie case of retaliation under EERA. The
crucial issue is whether Moberg demonstrated a nexus between his protected activity and the
District's adverse actions. We conclude, with the Office of the General Counsel, that he did
not.
The E-mails
The Office of the General Counsel dismissed Mo berg's allegations that his
November 2, 6 and 15, 2009 and January 4, 2010, e-mails were protected activity because they
were not a "logical continuation of group activity." (Los Angeles, supra, PERB Decision
No. 1552 [where an employee's complaints are undertaken alone and for his or her sole
benefit, that individual's conduct is not protected].) In his appeal, Moberg asks that we
consider the e-mails in question as either "informal grievances" or as requests for union
assistance. Moberg claims that the fact these e-mails were part of the case for dismissal
against him demonstrates the District's retaliatory motive.
According to Moberg, these e-mails are a required precursor to the filing of a formal
grievance under the CBA. Article VI(D) of the CBA states:
Conference. In keeping with the parties' commitment to resolve
issues prior to the initiation of a grievance, the potential grievant
must first meet with his/her immediate supervisor and attempt to
resolve the unit member's issues.
Thus, by its very terms, the CBA mandates that a conference occur prior to the filing of a
grievance. In addition, Article VI(E) of the CBA mandates that a grievance "be initiated" no
later than fifteen (15) days after the circumstances giving rise to the grievance. Moberg filed a
31

"26 point grievance" with the District on December 7, 2009 which was more than twomonths
after Kilty's observation.
Neither Moberg's November 2009 e-mail correspondence with the District, nor
Article VI of the CBA, supports Mo berg's contention that these e-mails constitute either an
informal grievance or a request for union assistance. 	We explain.
The CBA specifically calls for a "conference" prior to the filing of a formal grievance,
which the CBA describes as a "meeting." No e-mail correspondence prior to November 12,
2009, mentions a grievance by Moberg. 	The meeting discussed in the November 2, 4 and 6,
2009, e-mails was initiated not by Mo berg but by Codianne, and it addressed not Moberg's
concerns, but Codianne's concerns arising from complaints about Moberg by otherDistrict
employees. 	We thus conclude that neither the November 2, 2009 nor the November6, 2009,
e-mail was part of a collectively bargained-for grievance procedure, nor addressed the
collective concerns of the bargaining unit, nor sought to enforce rights stated in the CBA. 	The
correspondence concerned complaints about Moberg's behavior and his defense of his
behavior was undertaken alone and for his sole benefit. (See Los Angeles, supra, PERB
Decision No. 1552.) Therefore, neither e-mail was protected activity under EERA.
Moberg contends that his November 15, 2009, e-mail is protected as a request for union
assistance. 	The Office of the General Counsel concluded that because the e-mail did not refer
to a grievance, did not appear to address a contract violation and was noton the grievance form
required under Article VI, the "tangential reference" in the e-mail to theMBT A president was
insufficient to provide a connection to any collective concerns of the bargaining unit.
Mor:eover, we note that the e-mail evidence indicates that it was Codianne, not Moberg, who
brought the MBTA president into the picture. On November 15, 2009, Codianne wrote to
MBTA President Low: 	"Hi, can you give me a call tomorrow to discuss Erik's (sic) continued
32

use of "challenging" e-mails? (Sic.)" Thus, we conclude, with the Office of the General
Counsel, that Moberg's e-mail of November 15, 2009, concerns an issue undertaken by himself
and for his sole benefit. As such, it is not a "logical continuation of group activity" and is not
protected under EERA.
Lastly, Moberg claims that his January 4, 2010, e-mail wherein he asked Kilty to give
him and Ramirez keys to the MPR on the campus where they taught was protected as an
informal grievance. Again, we are not persuaded. The fact that the MBTA president
"suggested" that Moberg and Ramirez receive keys indicates that there was no right for them
to have keys and the issue was not grievable. On October 27, 2009, Moberg was informed by
Kilty that the Monterey Adult School was limiting the check-out of keys due to security
concerns. In and of itself, a system for securing the possession of keys
is not logically and reasonably related to wages, hours, or other
enumerated terms of employment. An employer has the right to
secure school property, especially when there is a history of theft
and vandalism.
(Inglewood Unified School District (1987) PERB Decision No. 624, p. 9.) Absent any
demonstration that Moberg and Ramirez had a right to a key to the MPR under the CBA or that
their hours of employment were altered because of Kilty's key system, Moberg has failed to
demonstrate that his request for his and Ramirez's own keys to the MPR was EERA protected
conduct.
Because Moberg has not shown that he and Ramirez had a statutory right to a key, we
distinguish this case from those where employees jointly prosecute alleged violations of
workplace rights that are not contained in the CBA, but contained in external law. (Jurupa
Unified School District (2012) PERB Decision No. 2283 0oining with another employee or
employees to enforce external law regarding workplace rights, is itself group activity, seeking
33

individually to enforce provisions
of
a collectively-bargained agreement is
"a logical
continuation
of
group activity" and both are protected
under~~
..
~
•.
)
District's September
7,
2010 Dismissal
of
Moberg
The Office
of
the General Counsel dismissed allegations in Mo berg's first amended
charge, filed on March 14, 2011, pertaining to events occurring more than six months earlier,
viz., prior to September 14, 2010. Among these allegations was the claim that the District
terminated Moberg's employment on September 7, 2010, when it adopted an ALJ's proposed
decision sustaining the charges brought by the District in February 2010. Moberg claims on
appeal that the termination in September 2010 relates back to the charges filed in February
2010, and thus the termination allegation is not untimely. Moberg' s claim raises an issue
concerning the proper application
of
our statutory limitations period and the relation back
doctrine to allegations involving disciplinary and dismissal proceedings, to which we now turn.
The Board has long held that the limitations period for a termination
of
employment or
imposition
of
lesser discipline, commences on the date the termination or lesser discipline
becomes effective, not on the earlier date on which an employer may provide an employee
notice
of
its intention to terminate or impose the discipline. (Sarka, supra, PERB Decision
No. 1585-H; Romanov. Rockwell International, Inc. (1996)
14
Cal.4th 479 (Romano).) 	This
policy recognizes that the question
of
whether a public employee may be terminated or
disciplined is frequently subject to due process procedures under a CBA or memorandum
of
understanding, or under other regulatory or statutory procedures, and, consequently, there may
be a significant delay between an employer's announcement of the intent to terminate or
discipline, and the parties' ensuing completion of applicable due process procedures.
However, the Board has recognized that our statutes protect employees not only from
termination or discipline for an impermissible reason, but also from the threat thereof.
34

Accordingly, an employer giving an employee notice
of
the intent to terminate or discipline
(viz., a threat
of
termination or discipline) for an unlawful reason would also violate
employees' statutory protections and thus by itself constitute an unfair practice. (Sarka, supra,
PERB Decision No. 1585-H.)
Because
of
this duality, we announce today a clarification
of
our limitations rule.
Where a charging party challenges as unlawful under our statutes an employer's notice
of
intent to terminate or discipline, and thereafter, upon completion
of
the dismissal proceedings
terminates or disciplines the employee, a timely filed charge, alleging that the notice
of
termination or discipline either was unlawfully motivated or interfered with the exercise
of
employee rights, will be deemed sufficient notice to the employer that the notice
of
termination
or discipline, and any action taken thereafter by the employer based on that notice, are subject
to review by this Board. We explain.
The facts here are illustrative. The District gave Moberg two notices on February 9,
2009. One stated that the District would non-reelect him at the conclusion
of
the academic
year. The non-reelection was not subject to review under due process procedures. We
therefore set it aside for the purpose
of
the analysis which follows.
The second notice stated that the District would terminate Moberg prior to the
conclusion
of
the academic year, unless within a specified time he requested a hearing to
determine whether cause existed for the termination. 	In addition, the second notice imposed
an immediate suspension. Due process procedures, including a hearing, were available to
Moberg to contest the termination and immediate suspension. Moberg opted to utilize the
procedures, which included a hearing before an ALJ on the issue of whether cause existed.
Additionally, on March 29, 2010, Moberg timely filed an unfair practice charge, challenging
35

the District's termination and suspension actions as unlawfully motivated because of his
protected activity.
Moberg's hearing on the District's termination and suspension occurred over the
summer of 2010. 	On September 7, 2010, the District's governing board adopted an ALJ' s
proposed decision sustaining the termination and suspension, and provided Moberg notice
thereof, thus imposing the termination. 	Thereafter, Moberg challenged the District's
termination action by filing suit.
In addition, on March 14, 2011, Moberg filed a first amended charge, which included,
inter alia, supplemental allegations regarding his termination, including actions taken by the
District in the course of the termination proceedings, and the District's September 7, 2010,
adoption of the ALJ' s proposed decision and imposition of the termination.
On August 1, 2011, the Office of the General Counsel issued Moberg a warning letter
notifying him that his first amended charge failed to state a prima facie violation of the EERA.
Among the bases for the Office of the General Counsel's conclusions was the limitations
period, which the Office of the General Counsel construed to commence on September 14,
2010, six months prior to the filing date of Moberg' s first amended charge. As a consequence,
the Office of the General Counsel deemed untimely all of Mo berg's allegations not included in
the initial charge and occurring prior to September 14, 2010, including without limitation the
District's September 7, 2010, imposition of the termination.
In his initial charge filed on March 29, 2010, Moberg had challenged the District's
February 9, 2010 notice of non-reelection as a probationary employee, as well as the District's
February 9, 2009 suspension, statement of charges and notice of dismissal. 	Moberg urges that
his first amended charge was timely as to events prior to September 14, 2011, relying on
36

PERB' s doctrines
of
"relation back" and "continuing violation" to bring prior and otherwise
untimely allegations within PERB's statutory authority. We review our authorities.
In Romano, supra,
14
Cal.4
th
479, the California Supreme Court held that the statute
of
limitations in a wrongful discharge case begins to run on the date that employment is actually
terminated. PERB adopted the Romano decision in Sarka, supra, PERB Decision No. 1585-H.
Noting, however, that the statutes administered by PERB prohibit both the threat to take an
adverse action as well as the imposition
of
an adverse action, the Board concluded
where an employer threatened to terminate an employee and then
actually terminated the employee, both the threat and actual
termination constitute violations
of
HEERA and each action
triggers the running
of
the limitations period.
(Sarka, supra, PERB Decision No. 1585-H, p. 8.)
PERB's relation-back doctrine has long permitted amendments to charges after more
than six months, providing that
amendments are appropriately filed even after the six-month
period
if
the amended charges are closely related to the actions in
the original charge.
(Gonzales Union High School District (1984) PERB Decision No. 410, pp. 19-20.)
In
Temple
City Unified School District (1989) PERB Order No. Ad-190, the Board determined that the
relation-back doctrine allowed an amendment to allege conduct that fell outside
of
the six-
month statutory period
if
the amendment "simply added another legal theory based on the same
set
of
facts contained in the original charge." (See also Inglewood Unified School District
(1990) PERB Decision No. 792 [motion to amend allowed where new theory based on same
set of facts as alleged in original complaint where no prejudice demonstrated to respondent].)
In addition:
Where the conduct alleged in the original charge is the same
conduct or factual allegation contained in the amended charge,
and where the second charge or amended charge either clearly
37

indicates a legal theory for the first time or merely alleges another
theory on the same facts already before the Board, the doctrine of
relation back has been applied to allow timely filing of the
amended charge.
(The Regents of University of California (1990) PERB Decision No. 826-H, p. 6.) The relation
back doctrine does not apply where the amended charge raises new factual allegations, separate
conduct or acts not sufficiently related to or raised in the original charge. (Sacramento City
Teachers Association (Franz) (2008) PERB Decision No. 1959.)
This appears to create a conflict between Sarka, supra, PERB Decision No. 1585-H and
PERB' s relation back doctrine in a situation such as we have here, where a subsequent adverse
action is both a separate violation under our statutes, yet based on precisely the same set of
facts and, indeed, is a natural consequence of the previous adverse action.
In resolving this apparent conflict it is helpful to consider the purposes for permitting
and limiting amended charges. PERB Regulation 32621 regarding amendments before the
issuance of a complaint offers little guidance. However, PERB Regulation 32648 regarding
amendments made during hearing states:
If the Board agent determines that amendment of the charge and
complaint is appropriate, the Board agent shall permit an
amendment. In determining the appropriateness of the
amendment, the Board agent shall consider, among other factors,
the possibility of prejudice to the respondent.
As the Board explained with regard to amendments submitted after the issuance of a
complaint, but prior to hearing:
Certainly, potential prejudice to the opposing party is a major
consideration in determining whether an amendment is to be
allowed. 	[Citations omitted.] Absent undue prejudice to the
opposing party, where a timely amendment is closely related to
the allegations in the pending complaint, the amendment should
be allowed. However, where a timely amendment has only a
tenuous relation to the pending complaint or is wholly unrelated,
prejudice is more likely because the respondent would have to
defend against an unanticipated claim. Where new allegations
38

arise out
of
the same facts and circumstances
as
those in a
pending complaint, the allowance
of
an amendment serves the
principles
of
economy and finality.
(Riverside Unified School District (1985) PERB Decision
~o.
553, pp.6-7.)
18
18
California's courts have grappled with this issue. California Code
of
Civil Procedure
(CCP) section 472 allows a party to 	an amended pleading, once as a matter
of
right, at any
time before an answer or demurrer is filed. CCP sections 473 and 576 allow a party to make
further amendments at the court's discretion. The amended complaint supersedes the original
complaint while maintaining the time
of
filing
of
the original for purposes
of
the statute
of
limitations unless it set forth "wholly" or "entirely'' different cause
of
action. (Jones
v.
Wilton
(1938) 10 Cal.2d 493,498; Barrington
v.
A.
H Robins
Co.
(1985) 39 Cal.3d 146,
151
[amended complaint relates back to the original complaint and thus avoids the statute
of
limitations bar
if
it rests on same general set
of
facts as the original and refers to the same
accident or injury].)
In contrast,
"a
supplemental complaint differs from an amended complaint in two chief
respects: it deals only with matters occurring after commencement
of
the action and it only
sets up matter consistent with and in aid
of
the case made by the original complaint."
(5
Witkin, California Procedure (4th ed. 1997) Pleading,§ 1174, p. 641.) CCP section 464
permits a party "on motion, to make a supplemental complaint or answer, alleging facts
material to the case occurring after the former complaint or answer."
The courts are split on whether a supplemental pleading relates back to the original
pleading for purposes
of
the statute
of
limitations. (ITT Gilfillan, Inc.
v.
City
of
Los Angeles
(1982) 136 Cal.App.3d 581,589 [supplemental complaints, categorically, do not relate back to
the original complaint, because, by definition, supplemental complaints are based strictly on
newly accrued causes
of
action]; but see, Bendix Corp.
v.
City
of
Los Angeles (1984) 150
Cal.App.3d 921, 925-926 (Bendix Corp.) [for purpose ofrelation back there is little basis to
distinguish an amended pleading from a supplemental pleading,
if
defendant had notice
of
the
subject matter
of
the dispute and was not prejudiced in preparing its defense].) The Bendix
Corp. court observed:
[W]hether the supplemental complaint may encompass the entire
period following commencement
of
the suit, despite the statute
of
limitations, will depend upon the nature
of
the claims raised in
the supplemental pleading.
	If
those claims are unrelated to those
alleged in the initial complaint, or rely on conduct or events
different from those involved in the original action, the statute of
limitations should be applied. 	[Citations omitted.] Where,
however, the original pleading gave notice that the alleged
vvTongful conduct was of a continuing nature, supplemental
pleadings addressed to the same conduct should not encounter
statute of limitations questions.
(Bendix Corp., supra, 150 Cal.App.3d 921, 926.)
39

Clearly, a responding party is not prejudiced by having to defend against the allegation
that a notice
of
dismissal or discipline (viz., the threat to dismiss or discipline) and an actual
imposition
of
dismissal or discipline are related violations. The second action, imposition, is
but the implementation
of
the first. 	Here, Moberg alleges two adverse actions which, on the
one hand, allege independent violations
of
EERA, yet, on the other hand, arise from precisely
the same set
of
facts and the same conduct. While these two acts do not constitute a
"continuing violation," they are logical and sequential manifestations
of
the same course
of
conduct and therefore the respondent cannot claim that it has been prejudiced in preparing a
defense.
We conclude that where a charging party timely alleges that an employer's notice
of
intent to terminate or discipline is unlawful under our statutes, and thereafter, following
utilization by the parties
of
due process procedures, the employer does in fact either terminate
or discipline the employee, an amended charge alleging that the termination or discipline itself
either was unlawfully motived or interfered with the exercise
of
employee rights, will be
deemed to relate back to the timely.filed charge.
We thus deem Mo berg's timely filed initial charge
of
March 29, 2010, challenging the
notice
of
termination, when coupled with the amendment filed on March 14, 2011, is sufficient
to bring within our jurisdiction the District's actions in furtherance
of
that notice
of
termination, including without limitation, the District's action
of
September 7, 2010 imposing
the termination noticed in February 2010.
Directive to Communicate Onlv with Shepherd
We affirm the Office of the General Counsel's determination that Moberg's allegation
(that his constitutional due process rights were violated by Shepherd's directive that Moberg
respect the wishes of District employees who did not wish to have contact with him and that
40

Moberg contact the District only through Shepherd) did not constitute an adverse action. We
explain.
Moberg alleges that the District's directive interfered with his constitutional due
process rights to investigate his case and to call witnesses for his dismissal hearing. 	The
dismissal proceeding was governed by the Education Code19 and Government Code
administrative adjudication procedures,2° which afforded Moberg the statutory right to call
witnesses in his defense, and to compel by subpoena the testimony of employee witnesses who
might be disposed not to assist Moberg with case preparation or to testify in Moberg's defense.
The District's directive only forbade Moberg to contact employees who wished not to have
such contact. Since no employee was obliged to assist Moberg with his defense, and since
Moberg could compel testimony even from recalcitrant employee witnesses by subpoena, we
discern no adverse impact upon Moberg's dismissal defense arising from the District's
directive. Moreover, and in any event, constitutional due process rights are beyond PERB 's
remit to enforce. (Los Angeles Unified School District (1990) PERB Decision No. 835 [PERB
only has jurisdiction to enforce the statutes it is charged with administering and has no
jurisdiction to enforce constitutional protections].)
Although a directive that an employee not contact other employees may conceivably
interfere with employee rights explicitly protected by EERA to "form, join and participate in
the activities of employee organizations of their own choosing for the purpose of
representation" (EERA, §3543(a)) or rights arguably protected under EERA for mutual aid and
19 Education Code Section 44948.3.
20 Government Code section 115 00 et seq.
41

protection21 , we conclude that Moberg has failed to allege a prima facie case for interference
underEERA.
To establish a prima facie case of interference, a charging party must allege that the
employer's conduct does or tends to result in some harm to employee EERA rights.22 By its
very terms, Shepherd's directive did not prohibit all communication between Moberg and
District employees nor did it prohibit his attendance at grievance meetings. Moreover, the
District's unrebutted evidence23 shows that on February 22, 2010, Shepherd clarified her
February 12, 2010 directive to Moberg, explaining that the District: (1) was not trying to
21 See McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293,
306-307 [suggesting that mutual aid and protection rights guaranteed by section 7 of the
National Labor Relations Act may also be protected, although not specifically mentioned, by
EERA].
22 Under Carlsbad, supra, PERB Decision No. 89, PERB's test for an interference
violation is:
2. 	Where the charging party establishes that the employer's
conduct tends to or does result in some harm to employee rights
granted under the EERA, a prima facie case shall be deemed to
exist;
3. 	Where the harm to the employees' rights is slight, and the
employer offers justification based on operational necessity, the
competing interest of the employer and the rights of the
employees will be balanced and the charge resolved accordingly;
4. 	Where the harm is inherently destructive of employee
rights, the employer's conduct will be excused only on proof that
it was occasioned by circumstances beyond the employer's
control and that no alternative course of action was available;
5. 	Irrespective of the foregoing, a charge will be sustained
where it is shown that the employer would not have engaged in
the complained-of conduct but for an unlawful motivation,
purpose or intent.
(Op. Cit., pp. 10-11.)
23 See footnote 3 above.
42

prohibit him from attending MPUSD board meetings; (2) was prohibiting him only from using
the District's e-mail and voice mail systems, but not prohibiting him from communicating with
District employees in a non-threatening, non-harassing manner, outside
of
their work hours;
(3) was not prohibiting him from communicating with MBTA officers; and (4) was not
prohibiting him from attending grievance meetings held at the offices
of
the District's
attorneys. 	We conclude, with the Office
of
the General Counsel, that Moberg failed to allege a
prima facie interference with his EERA rights.
Lesson Plans
We affirm the Office
of
the General Counsel's determination that the District's
requirement that Moberg produce lesson plans is not an adverse action. As stated by the Office
of
the General Counsel, requiring employees to meet the requirements
of
their profession is not
an adverse action. (State
of
California (Department
of
Transportation) (2005) PERB Decision
No. 1735-S; City
of
Torrance (2008) PERB Decision No. 1971-M.) While disparate
enforcement
of
any work rule by an employer would be circumstantial evidence
of
improper
motive, we agree with the Office
of
the General Counsel that Moberg provided no evidence,
other than mere speculation, that other District teachers were not required to produce lesson
plans.
Nexus
We have concluded that Moberg's e-mails were not protected under EERA. Thus, there
is no further nexus analysis to be made. Nevertheless, even
if
some
of
Moberg' s e-mails had
been protected, Mo berg alleged insufficient nexus between those e-mails and theDistrict's
subsequent action. 	"[T]he basis for Moberg' s dismissal was not the content
of
his e-mail
messages but rather their number and their tone." (Dismissal Ltr., p. 10.) The SuperiorCourt
determined that Moberg's
43

emails were rude and disrespectful and eroded team dynamics;
they constituted more than a mere difference of opinion over the
direction of the special education class and questioning of
authority .... [Moberg] used email in an abusive and
condescending manner which was clearly calculated to
antagonize. He used language which belittled the Special
Education Program Manager. 	[Moberg's] emails imply that he
was angry when he wrote them, and they were certainly
disrespectful.
(Id. quoting Moberg I, p. 13.)24
The Superior Court held that Moberg's e-mails warranted his dismissal for "Refusal to
Follow School Laws and Regulations." The abusive e-mails continued long after District
officials told Moberg to stop sending inflammatory e-mails which violated the MPUSD policy
regarding "District Communications." The tangential relationship that some of these e-mails
may have to Moberg's grievances do not cloak these e-mail messages under the protection of
EERA.
Moberg argues that the inclusion of some of his arguably protected e-mails as evidence
against him in his dismissal proceedings demonstrates that the District retaliated against him
for the grievances he filed. 	Yet none of the e-mails sent by the District regarding Moberg's
improper use of its e-mail system concerns Moberg' s grievances or restricts his ability to use
e-mail to exercise his EERA protected rights. The e-mails sent by the District directing
Moberg to stop sending improper or abusive e-mails invariably address the tone and intent of
those communications. None of the District's directives interfere in any way with Mo berg's
right to file grievances or participate in MBTA activities and none of the District's
communications with Moberg object to any speech which could be considered
representational.
24 At the time the Office of the General Counsel issued its dismissal of Moberg' s unfair
practice charge, Moberg I was still under appeal to the 6th Appellate District. Since that time,
Moberg I has been affirmed by the Appellate Court and made final by the California Supreme
Court's denial of Mo berg's petition for review.
44

Moberg argues that "number and tone" has never been used by PERB to find cause for
discipline based on an employee's communications with his employer. According to Moberg,
"employee speech loses its protected status only
if
it is so opprobrious or disrespectful
of
the
employer as to seriously impair maintenance
of
discipline." (Appeal,
p.
18; citing Rio Hondo
Community College District (1982) PERB Decision No. 260.)
We disagree with Moberg that the Office
of
the General Counsel determined that
Moberg's e-mails were not protected because
of
their number and tone. The dismissal letter
clearly points out that the e-mails in question lack EERA protection, because they were
not
undertaken as group activity or a logical continuation thereof. The dismissal letter merely
points out that the Monterey County Superior Court found that the number and tone
of
Moberg's e-mail communications were sufficient to form the basis for dismissal on the
grounds
of
persistent refusal to obey school laws or regulations, a basis for dismissal under the
Education Code, not EERA. The Office
of
the General Counsel determined that there was no
direct nexus between the District's adverse actions and Mo berg's e-mails, because they were
not protected activity under EERA and "[t]herefore, they cannot form the basis
of
a prima facie
case for retaliation." (Dismissal Ltr., p. 10.)
Moberg's Suspension Without Pay
According to Moberg, since he and the District disagreed on whether or not he was
entitled to pay while the dismissal hearing was pending, there exists a legal and factual dispute
which must result in a complaint being issued. In his appeal, Moberg claims he was not
informed
of
the withholding
of
his pay until April 22, 2010. However, Mo berg's second
amended charge, which he filed on September 15, 2011, alleges that the District began
withholding his pay on March 18, 2010. In addition, the District's February 12, 2010, letter
informing Moberg that the District had adopted the charges for dismissal also informed him
45

that he was placed
"on
immediate suspension without pay." Regardless
of
whether
Moberg
knew or should have known
of
the District's intent to withhold his pay on February 12,
March 18, or April 22, 2010, Moberg's initial allegation
of
this adverse act
on
September 1
2011 is clearly untimely.
Moberg also asks that we view the withholding
of
pay as evidence
of
the District's
unlawful motive. 	We are not persuaded that a possible contract violation is necessarily
indicative
of
unlawful motive. Moberg implies in his appeal that the District took this action
in retaliation for filing his initial charge on March 29, 2010, and that the fact the District
"backdates the withholding
of
pay by over one month" on April 22, 2010. From the evidence
submitted it is clear that the District notified Moberg on February 12, 2010,
of
its plan to
suspend him without pay. Therefore, the withholding
of
pay could not have been in retaliation
for Mo berg's filing
of
the instant charge on March 29, 2010.
Collateral Estoppel
Lastly, since Moberg's charges are hereby dismissed for failure to state a prima facie
case, we find no occasion to address the District's claim that he is collaterally estopped from
bringing forth his allegations.
ORDER
The unfair practice charge in Case No. SF-CE-2830-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Martinez and Member Banks joined in this Decision.
46

STATE
OF
CALIFORNIA 	EDMUND G. BROWN JR., Governor
---------------------------~.-------------	PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
March 1, 2012
Eric M. Moberg
3095 Yerba Buena Road
San Jose, CA 95135
Re: 	Eric M Moberg
v.
Monterey Peninsula Unified School District
Unfair Practice Charge No. SF-CE-2830-E
DISMISSAL LETTER
Dear Mr. Moberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 29, 2010. Eric M. Moberg (Moberg or Charging Party)
alleges that the Monterey Peninsula Unified School District (District or Respondent) violated
the Educational Employment Relations Act (EERA or Act)1 by retaliating against him for his
protected activity.
On March 14, 2011, Moberg filed a First Amended Charge.2 The District provided position
statements and/or information dated May 28, 2010, February 15, 2011, April 15, 2011 and
May
5,
2011.
Moberg was informed in the attached Warning Letter dated August 1, 2011, that the above-
referenced charge did not state a prima facie case. Moberg was advised that,
if
there were any
factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, the charge should be amended. Moberg was further advised that, unless the charge was
amended to state a prima facie case or withdrawn on or before August 17, 2011, the charge
would be dismissed. Subsequently, an extension
of
time was granted.
On September 15, 2011, Moberg filed a Second Amended Charge. The District filed further
position statements on August 30, 2011 and October 25, 2011. The Second Amended Charge
does not cure the deficiencies set forth in the Warning Letter. Therefore, the charge is hereby
dismissed based on the facts and reasons set forth below and in the August 1, 2011 Warning
Letter.
1 EERA is codified at Government Code section 3540 et seq. The text
of
the EERA arid
PERB Regulations may be found at vvww.perb.ca.gov.
2 Moberg has also filed four related charges against the District: SF-CE-2834-E, SF-
CE-2842-E, SF-CE-2851-;E, and SF-CE-2872-E.

SF-CE-2830-E
March
1,
2012
Page 2
Summary
of
Second Amended Charge
The Second Amended Charge is 69 pages long (single-spaced) with approximately 500 pages
of
attachments. The Second Amended Charge contains a detailed summary
of
all the
allegations Moberg previously advanced in this charge, as well as in the other four unfair
practice charges (which were subsequently dismissed). The Second Amended Charge also
summarizes facts underlying actions Moberg has brought in several other forums: (1) the
administrative hearing process which upheld Moberg' s dismissal from employment from the
District; (2) multiple civil complaints and writs Moberg has filed with the Superior Court for
Monterey County; and (3) an appeal with the Sixth District Court
of
Appeals. Much
of
the
Second Amended Charge is devoted to disputing the District's performance reviews and to
challenging the grounds the District asserted as a basis for dismissing him.
Moberg alleges the following relevant additional facts and/or clarifications
of
existing facts, in
addition to those facts summarized in the Warning Letter.
Beginning on September 24, 2009, Moberg complained to the District about racial
discrimination against students, the District's mismanagement
of
funds, and false statements
made by a supervisor on his evaluations.
Moberg alleges that an e-mail message he sent to District Associate Superintendent Leslie
Codianne (Codianne) on November 2, 2009 was "an informal grievance" under the CBA and
set an agenda for a meeting on November 12, 2009. A union representative attended the
meeting with Moberg on November 12, 2009.
The November 2, 2009 e-mail message3 from Moberg to Codianne states as follows:
I look forward to the meeting I scheduled with you next week. I
welcome the opportunity to respond directly to what is some sort
of
"Swift Boat" operation against me.
I am not certain what you mean by "this type
of
e-mail
exchange," but I will do my best to comply. I would also point
out that my e-mail is a polite response to a less than polite and
less than positive e-mail from our program manager. At the same
time, I would point out that several weeks ago I requested that we
all meet to discuss the repeated unprofessional and misleading e-
mails being sent to me, inaccurate verbal accusations made about
to other staff and management, and an inaccurate accusation from
my supervisor that I was violating the [EJducation (C]ode, but no
J The November 2nd e-mail message is attached to the Second Amended Charge at
Exhibit A, page 60.

SF-CE-2830-E
March
1,
2012
Page 3
one has responded
to
schedule that meeting, which leaves me e-
mail.
Additionally, to return to the Swift Boat analogy, I learned from
John Kerry's mistake
of
not responding when someone unfairly
attacks you. I will not make that mistake.
Mob~rg sent an e-mail message to Codianne and others dated November
4,
2009,4 that states:
Leslie, Ann, and Heath:
I have never spent one penny at Target.
Can any
of
you stop Teresa from repeatedly defaming me?
Can any
of
you stop Teresa from continuing to pretend she is my
supervisor and bossing me around? I have written over 300 IEPs
in my career and acting
as
Administrative Designee on 100 more.
Teresa Poirier has had her PPS credential for a little over a year.
Moberg also sent
an_
e-mail message to Codianne dated November
6,
2009,5 that states:
Please forward me an agenda for our meeting next Thursday at 4
pm.
In other words, who raised what 'concerns' when? And, did my
detractor (s) offer any substantiation?
If
we have time, I would like to discuss the following:
1.
What is the status
of
my contract? I have yet to receive one.
2.	
What is the status
of
the work order to install a fan and light in
the diaper changing room 	I first requested this in July.
3. What is MPUSD policy on teachers administering emergency
medications, such as Mary's Lorazeparri? I assume you are aware
that our MPUSD nurse asserts that she is prohibited by law from
training me.
4. What are we going to do about Ann Kilty's serially
defamatory September 29, 2009 oberservation critique
of
my
work. In other words, do we want such an inaccurate document
in my personnel file and subject to subpoena at a Due Process
hearing? Wouldn't this leave our attorney with the dilemma
of
either a) allowing the document to impeach my competence
orb)
4 The November 4, 2009 e-mail message is attached to the Second Amended Charge,
Exhibit A, page 1254.
5 The November 6, 2009 e-mail message is attached to the Second Amended Charge,
Exhibit A, page 63.

SF-CE-2830-E
March
1,
2012
Page4 
questioning Ann Kilty in front
of
the Administrative Law Judge
to impeach her honesty?
Moberg alleges that his e-mail messages
of
November 15, 2009 and January 4, 2010
complained
of
working conditions and were used to contact union representatives for
assistance. The November 15, 2009 e-mail message was intended to solicit union assistance
and the January 4, 2010 e-mail message was for Moberg to represent another teacher regarding
a workplace issue. These two e-mail messages are quoted, in their entirety, in the Warning
Letter. 	In the November 15, 2009 e-mail message, Moberg accuses another employee
of
lying
about him and accuses Codianne
of
believing her and backing her up.
In
the January 4, 2010
e-mail message, Moberg asks for a key for himself and another employee.
Moberg alleges that the District gave him a written reprimand on approximately January 27,
2010. 7 The written reprimand was not for leaving his classroom on January 12, 2010, but
rather for not being available by cellular phone while he was gone. Moreover, no urgent
situations occurred while Moberg was absent on that day,
Moberg alleges that his February 5, 2010, performance evaluation was supposed to summarize
five previous observation evaluations, however it did not.
Moberg alleges that the District did not require
of
any other similarly situated teacher the
highly detailed level
of
written lesson plans that Codianne required
of
Moberg. Moberg
contends that requiring him to spend additional time preparing lesson plans is "wage theft."
Moberg alleges that his performance evaluation dated January 20, 2010, rated him "as meeting
the overall standards
of
the teaching profession." The January 20, 2010 document is titled
"observation form" with an overall rating
of
"partially meets standards" (the box checked
off
on the last page
of
the observation form). There is also an observation form dated January 21,
2010, also with an overall rating
of
"partially meets standards." Moberg alleges that his final
overall evaluation dated February 5, 2010, constitutes dishonest misrepresentation. The
February 5, 2010 evaluation has an overall rating
of
"partially meets standards." 	The
February 5, 2010 evaluation recommends that Moberg be non-reelected for the next school
year. The evaluation states in part: "Mr. Moberg has had difficult and occasionally adversarial
relationships with colleagues including peers and administration as evidenced in numerous
email exchanges."
6 The November 15, 2009 e-mail message is attached to the Second Amended Charge at
Exhibit A, pages 67-68. The January 4, 2010 e-mail message is attached to the Second
Amended Charge at Exhibit A, page 76.
7 The Second Amended Charge clarifies that this Letter of Reprimand was dated
January 25, 2010, and issued on January 27, 2010.

SF-CE-2830-E
March 1, 2012
Page 5
Moberg alleges that the District has never non-reelected any teacher who was rated asmeeting
overall standards. The District employs over 500 teachers and non-re-elects 10 to
20
teachers
every year.
In
a February 12, 2010 letter, District Superintendent Marilyn Shepherd (Shepherd) allegedly
directed Moberg not to speak to anyone except her.· In a letter dated February 12, 2010,
Shepherd notified Moberg
of
the charges for immediate suspension and dismissal.8 Moberg
was directed to stay away from District premises, to not conduct any businesson behalf
of
the
District and to not attend District meetings. The letter further states that the District has
received complaints about Moberg from other employees, that the other employees do not
wish
to have contact with Moberg, and that the District wishes to avoid having to seek a restraining
order against Moberg. Moberg argues that this directive interfered with his right to collect
evidence regarding his dismissal case.
On
September
7,
2010, the District adopted a Resolution to adopt a proposed decision by
Administrative
Law
Judge Anderson (ALJ Anderson) from the Office
of
Administrative
Hearings (OAH).9 The ALJ upheld Moberg's dismissal on the following grounds: (1)
persistent violation
of
or refusal to obey school laws or regulations, and (2) dishonesty.
Moberg appealed this decision to the Superior Court
of
Monterey County. The Superior
Court's Statement
of
Decision, filed
on
August 23, 2011, upheld Mo
berg's
dismissal on the
grounds
of
persistent refusal to follow school laws or regulations. The Court's Statement
of
Decision also finds grounds to dismiss Moberg on the basis
of
evident unfitness for service.
Moberg argues that the District's September
7,
2010 Resolution to Adopt Proposed Decision
was merely a clarification
of
the Statement
of
Charges (issued by the District on February 9,
2010). The Statement
of
Charges was at issue in another unfair practice charge filed by
Moberg.
Position
of
the Respondent
On approximately February 22, 2010, Moberg filed a Petition for Writ
of
Mandate and
Injunctive Relieve in the Monterey County Superior Court (Case No.
Ml
04096) against
Shepherd and Doe defendants. The Petition concerned, in part, Moberg' s claim that on
February 22, 2010, the District directed him to not engage in harassing and unwelcome
communications using District e-mail or voicemail, and that these directives violated his rights
under the state and federal Constitutions. On November 24, 2010, following a hearing, the
8 A copy
of
the February 12, 2010 letter is attached to the Second Amended Charge at
Exhibit A, page 3.
9 The Resolution and proposed decision are attached to the District's February 15, 2011
position statement as Exhibit 83. PERB may consider non-conflicting facts alleged by a
Respondent. 	(Service Employees International Union #790 (Adza) (2004) PERB Decision
No. 1632-M.)

SF-CE-2830-E
March
1,
2012
Page 6
Superior Court issued an Order denying the Petition because the controversy raised by the
pleadings was determined to be moot due to subsequent events.
On April 12, 2010, Moberg filed a verified Complaint and demand for
jury
trial in the
Monterey County Superior Court, (Case No. Ml05057) against the District and multiple
named defendants for: (1) violation
of
civil rights, (2) retaliation in contravention
of
public
policy, (3) defamation, and (4) intentional infliction
of
emotional distress. The District filed a
demurrer.
On
August 12, 2010, the Court issued a ruling on the demurrer. The demurrer was
sustained without leave to amend on all but the third cause
of
action, for defamation. With
respect to Plaintiff Mo berg's cause
of
action for retaliation in contravention
of
public policy,
the Court stated "Plaintiff has failed to state a cause
of
action for retaliation because he has
not
and cannot allege exhaustion
of
his administrative remedies as the administrative proceedings
are still pending."
Notwithstanding this ruling, Moberg subsequently filed a first amended complaint for: (1)
violation
of
civil rights, (2) defamation, (3) interference with a contract, (4) invasion
of
privacy, (5) wrongful termination, and (6) breach
of
contract. Defendant then filed a demurrer,
general Motion to Strike, and an anti-SLAPP Motion to Strike. On December 13, 2010,
following a hearing, the Court dismissed the entire action with prejudice. Moberg appealed to
the Court
of
Appeal for the Sixth Appellate District, which remanded the action for the limited
purpose
of
allowing the defendants to bring a noticed motion to dismiss.
On November 4, 2010, Moberg filed a Petition for Writ
of
Mandate with the Superior Court for
Monterey County (Case No. Ml09124) to set aside the District's decision to dismiss him. One
basis for the writ petition is "Disparate treatment re: e-mails." On September 15, 2011, the
Court issued its Judgment adopting its Statement oflntended Decision dated August 23, 2011,
denying the Writ
of
Mandate and upholding Mo berg's dismissal. The Court found that the
administrative record did not support the ALJ's finding
of
dishonesty, but that it did support a
finding
of
cause to dismiss on the basis
of
evident unfitness to teach. The Court upheld the
ALJ' s determination that good cause existed for dismissal on the basis
of
persistent refusal to
follow school laws or regulations. The Court further found that Moberg's alleged protected
activities concerning disclosures ofracial discrimination, mismanagement
of
the Workability
program, and failure to provide a light or fan in a bathroom were not a contributing factor
towards the District's decision to dismiss. The Court held that, even assuming these were
protected disclosures under the Education Code, there is no evidence that they motivated the
dismissal.
The District argues that the doctrine
of
collateral estoppel bars relitigation
of
the claims raised
by the Second Amended Charge.
Retaliation on the Basis of Protected Activity
As stated in the Warning Letter, the standard for retaliation on the basis of protected activity is
as follows.

SF-CE-2830-E
March 1, 2012
Page 7
To demonstrate that an employer discriminated or retaliated against an employee in violation
of
EERA 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; (3) the
employer took adverse action against the employee; and (4) the employer took the action
because
of
the
exercise
of
those rights. (Novato Unified School District (1982) PERB Decision
No. 210 (Novato).) In determining whether evidence
of
adverse action is established, the
Board uses an objective test and will not rely upon the subjective reactions
of
the employee.
(Palo Verde Unified School District (1988) PERB Decision No. 689.)
In
a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection
or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following
additional factors must also be present: (1) the employer's disparate treatment
of
the employee
(State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S; (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104; (3) the
employer's inconsistent or contradictory justifications for its actions (State
of
California
(Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation
of
the employee's misconduct (City
of
Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action(Oakland
Unified School District (2003) PERB Decision No. 1529) or the offering
of
exaggerated,
vague, or ambiguous reasons (McFarland Unified School District (1990) PERB Decision No.
786); (6) employer animosity towards union activists (Jurupa Community Services District
(2007) PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986)
PERB Decision No. 572); or (7) any other facts that might demonstrate the employer's
unlawful motive. (North Sacramento School District, supra, PERB Decision No. 264; Novato,
supra, PERB Decision No. 210.)
A. 	Protected Activity
Moberg alleges that he engaged in protected activity within the meaning of EERA by filing
grievances between October 29, 2009 and February 5, 2010. The Collective Bargaining

SF-CE-2830-E
March 1, 2012
Page 8
Agreement (CBA) between the District and the Monterey Bay Teachers Association provides
at Article
VI
that
"a
grievance shall be initiated in writing using the grievance form, and shall
be filed with the immediate supervisor."10
Documents provided in connection with this charge
show that
Moberg submitted a written grievance on December
7,
2009 concerning
approximately 26
11
alleged contract violations. 	Moberg submitted a written grievance dated
12
February 4, 2010, concerning assignment
of
extra work. 	Moberg submitted a written
"draft"
grievance to Codianne on February 8, 2010, concerning the January 27, 2010, letter
of
reprimand.
13
Moberg submitted a written grievance on March 4, 2010, for retaliation
following the District's issuance
of
the February
9,
2010 Statement
ofCharges.
14
It does not
appear from the information provided that Moberg filed a written grievance under the CBA
prior to December 7, 2009.
Moberg also alleges that he engaged in protected activity by sending e-mail messages dated
November
	4, 6 and 15, 2009, and on January 4, 2009. As stated in the Warning Letter, these
e-mail messages do not constitute protected activity because they are not a "logical
continuation
of
group activity." (Los Angeles Unified School District (2003) PERB Decision
No, 1552.) In the Second Amended Charge, Moberg characterizes these e-mail messages as
"informal
grievances." However, as discussed in the Warning Letter, the e-mail messages on1y
address Moberg's individual concerns and, therefore, they are not protected activity within
the
meaning
of
the
Act. The e-mail messages do not refer to a grievance, do not appear to address
a contract violation and are not on
a grievance form required by CBA Article VI. The e-mail
messages accuse other employees
of
incompetence or defamation. Aside from a tangential
reference to union representative Jill Low in one
of
the e-mail messages, there does not appear
to be any connection between these e~mail messages and any collective concerns
of
the
bargaining unit.
In the Second Amended Charge, Moberg alleges that in September 2009 he began complaining
of
racial discrimination against his students, the District's mismanagement
of
funding, and
false statements made by his supervisor on performance evaluations. These allegations were
not raised in Moberg's initial charge or in his First Amended Charge. As discussed in the
10
Portions
of
the CBA are attached to the District's October 25, 2011 Position
Statement, Exhibit A, page 638.
11
The December 7, 2009 grievance is attached to the District's October 25, 2011
Position Statement at Exhibit A, tab 10.
12
The February 4, 2010 grievance is attached to the District's-May 28, 2010 Position
Statement at Exhibit D.
13
The draft February 8, 2010 grievance is attached to the Second Amended Charge,
Exhibit A, page 1514.
14
The March 4, 2010 grievance is attached to the Second Amended Charge, Exhibit A,
page 1594

SF-CE-2830-E
March
1,
2012
Page 9
Warning Letter, the statute
of
limitations for a new allegation contained in an amended charge
begins to run based on the filing date
of
the amended charge, not the original charge.
(Sacramento City Teachers Association (Marsh) (2001)
PERB
Decision No. 1458.) The
Second Amended Charge was filed on September 15, 2011. The allegations concerning
Moberg' s September 2009 complaints occurred more than six months prior to the filing
of
the
Second Amended Charge and are therefore untimely.
B. 	Adverse Action
As stated in the Warning Letter, Moberg has alleged sufficient facts to show that the District
took adverse action against him when it: (1) on February
9,
2010, notified Moberg
of
the
District's decision to non-reelect him; and, (2) on February
9,
2010, issued Moberg a
Statement
of
Charges.
Three other purported adverse actions were discussed in the Warning Letter and found to be
untimely filed under the relation back rule discussed above. (See, e.g., Sacramento City
Teachers Association (Marsh), supra, PERB Decision No. 1458.) These are: (1) the District's
Resolution
of
Dismissal, adopted on September
7,
2010; (2) the District's adoption
of
supplemental charges, issued on June 7, 2010, and (3) a Letter
of
Reprimand issued on
approximately January 27, 2010. Moberg does not allege any facts in the Second Amended
Charge which would render these allegations timely filed. Moberg argues that the Resolution
of
Dismissal adopted on September 7, 2010 is merely an extension
of
the February 9, 2010.
PERB has held that the notice
of
intent to dismiss an employee and the confirmation
of
the
dismissal
of
an employee may both be adverse acts under EERA. (Los Banos Unified School
District (2009) PERB Decision No. 2063; Regents
of
the University
of
California (2004) PERB
Decision No. 1585-H.) These allegations are dismissed because they are untimely filed.
1. 	Directive to Speak Only to Superintendent Shepard
Moberg alleges that Shepherd's February 12, 2010 letter, directing Moberg to communicate
only with her regarding District issues, affects his employment by interfering with his
Constitutional Due Process right to call witnesses for his dismissal proceeding. 	Protected
employee rights under EERA do not include the right to call witnesses for a hearing under the
Education Code concerning an employee's proposed dismissal for cause. PERB does not have
jurisdiction over the Constitutional Due Process rights
of
public employees. (Los Angeles
Unified School District (1990) PERB Decision No. 835.) This allegation does not constitute
an adverse action under EERA.
2. 	Requirement of Extra Work
Moberg alleges that on January 27, 2010, Codianne sent him an e~mail message stating that she
had instructed'	
"Lorraine"'	
not to share her lesson plans with Moberg. Moberg asserts that this
was because Lorraine Ramirez (Ramirez), the teacher in the classroom next door to Moberg,
did not have any lesson plans and Codianne did not want Moberg to know that Ramirez did not
have any lesson plans. This is pure speculation and lacks any factual basis to establish a prima

SF-CE-2830-E
March
1,
2012
Page 10
facie case. (United
Teachers-Los
Angeles (Wyler) (1993) PERB Decision No. 970.) The fact
that Codianne directed other teachers not to give their lesson plans to Moberg does not mean
that no teachers were required to prepare lesson plans or that other teachers had not prepared
lesson plans. Moberg alleges that Codianne told him, on another occasion, that "lesson plans
are standard requirements for teachers." Requiring teachers to meet the requirements
of
their
job is not an adverse action. (State
of
California (Department
of
Transportation) (2005) PERB
Decision No.
173
5-S [clarification
of
employee job duties is not adverse action]; City
of
Torrance (2008) PERB Decision No. 1971-M [order that employee produce log book held not
adverse action].)
C. 	Nexus
As discussed
in
the Warning Letter, there is no nexus established between Moberg's protected
conduct in filing grievances and the District's notification
of
its decision to not re-elect him for
the following school year and to simultaneously issue him a Statement
of
Charges for dismissal
for cause.
1. 	Direct Nexus
Moberg alleges that he was dismissed from his employment because
of
the e-mail messages he
sent in November 2009 and January 2010. He alleges that the fact that these e-mail messages
were cited in the Statement
of
Charges constitutes direct evidence
of
retaliation. As discussed
above, there are no facts to establish that the e-mail messages were protected activity under
EERA. (Los Angeles Unified School District, supra, PERB Decision No. 1552.) Therefore,
they cannot form the basis
of
a prima facie case for retaliation under EERA.
It should be noted that the basis for Moberg's dismissal was not the content of his e-mail
messages but rather their number and their tone. As explained by the Monterey County
Superior Court (in its decision dated September 15, 2011) upholding the decision
of
ALJ
Anderson to dismiss him on the grounds
of
persistent refusal to obey school laws or
regulations: 'TMoberg's] emails were rude and disrespectful and eroded team dynamics; they
constituted more than a mere difference
of
opinion over the direction
of
the special education
class and questioning
of
authority
....
[Moberg] used email in an abusive and condescending
manner which was clearly calculated to antagonize. He used language which belittled the
Special Education Program Manager. [Moberg's] emails imply that he was angry when he
wrote them and they were certainly disrespectful." Accordingly, even
if
the e-mail messages
constituted protected activity under EERA, there is no direct nexus established between these
e-mail messages and the subsequent adverse action.
2. 	Circumstantial Evidence of Unlawful Motivation
a. 	Alleged Misrepresentation of Work Performance
Moberg alleges that the District misrepresented his job performance when it found that he
"partially met standards" on his performance evaluations. He alleges that the District's

SF-CE-2830-E
March
1,
2012
Page
11
performance evaluations do not accurately reflect his performance, which he alleges was
entirely positive. He alleges that the District subsequently failed to establish that his dismissal
was justified on the basis
of
poor performance.
Moberg alleges in detail that his performance was satisfactory and he should not have been
dismissed. However, the District's Statement
of Charges-and
Mo berg's subsequent dismissal
for cause--was not based upon performance, but on statutory cause for misconduct. ALJ
Anderson found that the District had sufficient cause to dismiss Moberg, and this decision was
upheld on appeal, albeit on different statutory grounds. Both decisions contained specific
grounds for dismissal and a detailed analysis
of
the charges. Therefore, the facts do not show
that the District moved to dismiss Moberg for vague or exaggerated reasons, or that it failed to
offer him justification at the time it took action.
b.
	Basis for Non-Reelection or Dismissal
Moberg alleges that the District decided not to re-elect him for a second probationary year
based on his "adversarial relationships with administration." Therefore, Moberg alleges, the
District did not give sufficient reasons for its decision to not re-elect him. Education Code
44929
.21
provides a District may decide to not re-elect a probationary certificated employee
without cause. (McFarland Unified School District
v.
Public Employment Relations Board
(2007) 228 Cal.App.3d 166, 169.) The District did give Moberg numerous reasons why it was
moving to dismiss him for cause. Therefore, the facts do not show that the District took action
for vague or insufficient reasons.
Moberg also argues that the District did not prevail on all of the grounds for which it asserted
Moberg ought to be dismissed. The District moved to dismiss based upon four
of
the available
statutory grounds for dismissal for cause, and ALJ Anderson found that dismissal was proper
based upon only two
of
the grounds. Nonetheless, the dismissal for cause was upheld. The
dismissal for cause was not for vague or insufficient reasons, and it cannot be determined how
these facts would otherwise demonstrate unlav.,ful motivation by the District.
c.
	Basis for Reprimands and Complaint
Moberg alleges that the January 25, 2010, letter ofreprimand contains several false statements
of
fact. Moberg further alleges that at his dismissal hearing the District did not provide him
with a copy
of
a complaint from a co-worker which led to a formal complaint against him by
Teresa Poirer (Poirer). These facts do not establish that the employer engaged in a cursory
investigation
of
Mo berg's misconduct leading to his dismissal or that the District failed to
off
er
justification at the time it took action. These facts are not sufficient to establish unlawful
motive.
d. 	District Practice of Re-election of Teachers
Moberg alleges that the District decides to not re-elect between ten and twenty employees per
year. Moberg alleges that the District has re-elected every first year probationary special

SF-CE-2830-E
March
1,
2012
Page 12
education teacher who was rated as "meeting the overall standards
of
the teaching profession."
Moberg alleges that he was not re-elected for a second probationary year despite having been
rated as "meeting the standards
of
the teaching profession." However, the evaluation
documents from January and February 2010 state that Moberg was found to have onlypartially
met standards. "Meeting the standards
of
the teaching profession" is not listed as a criteria
on
the observation forms or on the overall evaluation form.
15
Therefore, these facts do not
show
that Moberg was treated differently from similarly-situated employees because
of
his protected
activity. 
e.
	Disparate Treatment
Moberg alleges that another District employee, Poirier, complained about Moberg on several
occasions and that this created a hostile work environment for Moberg. However, Poirier was
not disciplined for this conduct. Poirier was not Moberg's supervisor, however she was in
charge
of
the program under which Moberg taught. Moberg believes that the District
improperly gave Poirier the authority to give him directions. The facts alleged do not show
that Poirier and Moberg were similarly situated such that disparate treatment because
of
protected activity is established. (See, e.g., San Mateo County Office
of
Education (2008)
PERB Decision No. 1946.)
f.
	Due Process Rights
The District has taken the position that pursuant to Article
XX
of
the applicable CBA, Moberg
was not entitled to continued pay after the District's Governing Board adopted the February 9,
2010 Statement
of
Charges, but while his dismissal hearing was pending. Moberg believes the
applicable CBA provision is Article XIX, under which he asserts he would be entitled to pay
pending the dismissal hearing. It cannot be determined how this dispute, which apparently
arose after the District adopted the Statement
of
Charges, demonstrates unlawful motivation on
the part
of
the District.
Right to Appeal
16
Pursuant to PERB Regulations, 	Charging Party may obtain a review
of
this dismissal
of the
charge
by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this dismissal. (Cal. Code Regs., tit. 8, § 32635, subd. (a).) Any document filed with the
15
The February 5, 2010 evaluation is attached as Exhibit 3 to the District's May 28,
2010 position statement. The January 20, 2010 observation form signed on January 25, 2010 is
attached as Exhibit 16 to the District's May 28, 2010 position statement. The January 21, 2010
observation form, signed January 26 and 27, 2010, is attached as exhibit 17 to the District's
May 28, 2010 position statement. These documents are also supplied elsewhere in the record.
16
PERB's Regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq.

SF-CE-2830-E
March
1,
2012
Page 13
Board must contain the case name and number, and the original and five (5) copies
of
all
documents must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8,
§§
32135, subd. (a) and 32130; see also Gov.
Code,§
11020, subd.
(a).) A document is also considered "filed" when received by facsimile transmission before
the close
of
business together with a Facsimile Transmission Cover Sheet which meets the
requirements
of
PERB Regulation 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, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
The Board's
address is:
Public Employment Relations Board
Attention: Appeals Assistant
I 031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with
the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Cal. Code Regs., tit. 8, § 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a
"proof
of
service'' must accompany each copy
of
a document served upon a
party
or
filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs., tit. 8, § 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof of
service
of
the
request upon each party. (Cal. Code Regs., tit. 8, § 32132.)
Final Date

SF-CE-2830-E
March
1,
2012
Page 14
If
no appeal is filed within the specified time limits, the dismissal
will
become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
Attachment
cc: 	Judd Jordan
Kim Gee

STATE OF CALIFORNIA 	EDMUND G.
BROWN
JR., Goveroor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax; (510) 622-1027
August 1, 2011
Eric M. Moberg
3095 Yerba Buena Road
San Jose, CA 95135
Re: 	Eric M Moberg
v.
Monterey Peninsula Unified School District
Unfair Practice Charge No. SF-CE-2830-E
WARNING LETTER
Dear Mr. Moberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 29, 2010. Eric M. Moberg (Moberg or Charging Party)
alleges that the Monterey Peninsula Unified School District (District or Respondent) violated
the Educational Employment Relations Act (BERA or Act)1 by retaliating against him for his
protected activity.
On March 14, 2011, Moberg filed a first Amended Charge (Amended Charge). The District
has provided-position statements and/or information dated May 28, 2010, February 15, 2011,
April 15, 2011 and May 5, 2011.
Moberg has filed four related charges against the District: SF-CE-2834-E, SF-CE-2842-E, SF-
CE-2851-E, and SF-CE-2872-E.
Summary
of
the Original Unfair Practice Charge
The original unfair practice charge Moberg filed on March 29, 2010, alleges as follows.
On November 7, 2009, Moberg filed a 26-point grievance, covering District conduct since
September 2009. The District denied the grievance. Moberg subsequently filed four more
grievances.
During the time that Moberg pursued his grievances: (a) the District made false accusations
about Moberg in evaluations and in a January 27, 2010, letter
of
reprimand; (b) the District
used these false accusations as a basis for a Statement
of
Charges submitted to the District's
Governing Board on February 9, 2010; (c) the District's Governing Board, after meeting in
closed session on February 9, 2010, voted to non-reelect Moberg for the following school year;
(d) the District's Governing Board adopted the Statement of Charges and decided to not re-
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.

SF-CE-2830-E
August 1,2011
Page2
elect Moberg without reading Moberg's response; (e) the District altered five pieces
of
evidence before serving Moberg with the Statement
of
Charges; and (f) the District violat.ed
timelines resulting in delaying Moberg's dismissal hearing before the Office
of
Administrative
Hearings (OAH) until late June 2010.
On January 27, 2010, the District directed Moberg to work an additional two to four hours each
day without choice and without compensation on an administrative project that is not
mandatory for other similarly situated teachers.
On February 12, 2010, the District Superintendent (presumably District Superintendent Dr.
Marilyn Shepherd (Shepherd]) directed Moberg not to communicate with any District
personnel who are potential witnesses in the OAH dismissal hearing and not to communicate
with his elected Union president. Instead, Moberg could communicate solely with Shepherd
herself on any matters related to the District. Shepherd also directed Moberg not to attend
Governing Board meetings or upcoming grievance meetings.
Summary
of
the First Amended Charge
An investigation
of
the facts provided by the Amended Charge and the District's multiple
responses revealed the following.
The District hired Moberg in the Fall of2009
as a probationary certificated employee. In
February 2010, the District began proceedings to dismiss Moberg because
of
his poor work
performance.
The District and Moberg's exclusive representative, the Monterey Bay Teachers Association
(MBTA), are signatories to a Collective Bargaining Agreement (CBA) covering the dates July
1, 2005 through July 2008 and extended by mutual agreement through the 2010-2011 school
year. Article VI
of
the CBA provides that bargaining unit members may file grievances in
their own name regarding violations
of
the CBA. However, the grievance may proceed to
binding arbitration only
if
the exclusive representative is the grievant.
In the first amended charge, Moberg alleges that on October 29, 2009, he "began a grievance
process under Articles VI.B.1 and VI.D
of
the Master Contract" and supplemented the
grievance on multiple dates: November 2, 4, 6, 13, 15, 2009; December 6 and 11, 2009; and
January 4, 2010.
Moberg alleges that he filed another grievance on February 5, 2010. The District alleges that
Moberg filed additional grievances on February 4, 2010 and February 5, 2010.
On November 2, 2009, Moberg sent an e-mail message to District Associate Superintendent
Leslie Codianne (Codianne), asking to set a meeting to discuss what Moberg believes were
inaccurate and unsubstantiated complaints about his communications to others. On November
6, 2009, Moberg sent a further e-mail message to Codianne, proposing an agenda for the
meeting.

SF-CE-2830-E
August
1,
2011
Page 3
On November 15, 2009, Moberg sent another e-mail message
to
Codianne. The e-mail
message states as follows:
My intent was to determine why you asked me
if
there had been
any parent complaints. It occurred to me that this was likely
based on some false claim made by Teresa Poirier, who has made
many false claims about me to many people lately, including a
recklessly false claim that I spent $500 at Target without
authorization. Did you ask Teresa to see any receipts?
I think that I have every right to ask such a question under such
circumstances to any person, regardless
of
what authority they
claim or actually have.
Would I not have a right to ask such a question to the President
of
the United States? Journalists do every day. I think we both
know that I would, so why, then, would I not have the right to
ask·
the question to a psychologist who has no authority over me, by
law, since she has no administrative credential?
Teresa has repeatedly reminded me that you two are personal
friends and that her husband is your personal carpenter. I have no
idea
if
either claim is true, given the source, but
if
they are, do
you have a conflict
of
interest here? You don't seem to mind me
challenging Ann Kilty and sending copies to the Superintendent
and School Board President. After all, Ann Kilty is my actual
supervisor and many
of
my challenges actually relate to program
decisions she has made or allowed Teresa to make.
Is there some reason that you
can't
allow Teresa to answer
a·
simple question? If she made the claim then why shouldn't I
know what it is?
If
there were a legitimate parent complaint,
shouldn't we all address it?
If, on the other hand, Teresa did not make any such claim to you,
then why not just let her answer the question?
How is my asking a psychologist if she had claimed there was a
complaint about me 'challenging' an 'authority figure' or
'questioning program decisions'?
The real issue here is honesty - do we have a credentialed
psychologist who is consistently dishonest?

SF-CE-2830-E
August
1,
2011
Page4 
I accepted the
job
thinking I would be working with Heath and
you primarily. Instead I find myself in an extremely hostile work
environment with Teresa and Ann regularly sabotaging my hard
work, and making false statements to me and about me. I suggest
you direct some
of
your passionate indignation toward those two
'team' members.
I have sabotaged no one's work, nor made any false statements
about anyone since I have come to
MPUSD,
nor will
I.
After reading your below response, I conclude that a) Teresa did
make such a false claim to you, b) you knew it was likely false,
and c) you are not protecting her from herself.
So,
if
I do not hear from you or Teresa, I will assume that I am
correct, and we can move on.
Let's see what our colleague Jill Low thinks about all
of
this.
Jill Low (Low) is the MBTA president.
The next day, Codianne replied to the e-mail message, stating:
I am very uncomfortable with the tone and intent
of
this e-mail. I
have asked you to stop the 'challenging' e-mails to all staff
inclu~ing Ms. Kilty. We \\-ill be scheduling a meeting with you,
myself and Ms. Kilty and that will be the arena in which your
concerns and allegations will be discussed.
On January 4, 2010, Moberg sent an e-mail message to Kilty, stating:
I'll look at the calendar when I return, but why don't you just
give me and Lorraine keys to the MPR as President Low
suggested so we don't need to bother anyone else?
I kriow that other Monterey Adult School faculty and non-
credential staff have keys to the MPR.
You do trust Lorraine and me, don't you?
Both e-mail messages were copied to Low.
The District conducted classroom observations of Moberg on approximately September 29,
2009, November 9, 2009, January 20, 2010, and January 21, 2010.

SF-CE-2830-E
August t, 2011
Page 5
According to the District, Moberg had performance problems from September 2009 through
January 2010, and continuing. In February 2010, the District decided to pursue a mid-year
dismissal
of
Moberg. The District prepared a Statement
of
Charges and Notice
of
Recommendation for Dismissal pursuant to Education Code section 44948.3 (Statement
of
Charges) and sent it to Moberg via e-mail on February 5, 2010. Also on February 5, 2010, the
District conducted a performance evaluation
of
Moberg, and concluded that he only partially
met
standards. The District then sent Moberg a notice
of
non-reelection for the following
school year. 	On February 9, 2010, the District's Governing Board adopted the proposed
charges against Moberg.
The February 9, 2010, Statement
of
Charges proposes that Moberg be dismissed for cause,
upon the grounds of: (A) evident unfitness for service and (B) persistent violation
of
or refusal
to obey rules. The Statement
of
Charges enumerates numerous e-mail messages and other
communications sent
by
Moberg to various District personnel which the District characterized
as disrespectful, insulting, inappropriate and unprofessional.
The November 12, 2009 e-mail message quoted above is attached as an exhibit to the
Statement
of
Charges, in support
of
the District's contentions that "From November 6, 2009
through November 15, 2009, you [i.e., Moberg] sent Ms. Codianne a series
of
e-mail messages
accusing District employees Teresa Poirier and Ann Kilty
of
defaming and spreading false
rumors about you." 	The January 4, 2009 e-mail message quoted above is also attached as
an
exhibit to the Statement
of
Charges, in support
of
the District's contentions that Moberg had
sent an unprofessional e-mail on that date.
Moberg alleges that,
on
January 26, 2010, the District issued a Letter
of
Reprimand to him for
failing to comply with Codianne's directive regarding use
of
a District radio. The District has
supplied a Letter
of
Reprimand dated January 25, 2010, and signed by Moberg on January
27,
2010. Moberg was reprimanded for leaving his classroom and being unreachable by District-
issued Nextel device, in violation
of
District policy, during which time several urgent
situations occurred in the classroom.
Moberg alleges that on February 12, 2010, Superintendent Shepard wroteto him directing that
he speak to no one in the District other than her.
On June 7, 2010, the District filed a Supplemental Statement
of
Charges adding a charge
of
dishonesty. This further charge involved Moberg's alleged failure to disclose the true reason
he had left his previous position with the San Mateo Unified School District.
A termination hearing was held before Administrative Law Judge Mary-Margaret Anderson
(ALJ Anderson) from OAH on June 21 and 22, 2010. On September 7, 2010, the District's
Governing Board adopted her proposed decision that the dismissal
of
Moberg was warranted
and that he was dismissed from his position. 	·
Moberg contends a complaint should issue for the District's retaliatory conduct in non-
reelecting his employment, for adopting the Statement of Charges, and for adopting the

SF-CE-2830-E
August 1, 2011
Page6
Dismissal Resolution based upon his protected activity. Moberg also states that a complaint
should issue for the District's interference with his right to collect evidence.
Retaliation For Protected Activity
To demonstrate that an employer discriminated or retaliated against an employee in violation
of
EERA section 3543.5(a), the charging party must show that:
(l)
the employee exercised
rights under EERA; (2) the employer had knowledge
of
the exercise
of
those rights; (3) the
employer took adverse action against the employee; and (4) the employer took the action
because
of
the exercise
of
those rights. (Novato Unified School District (1982) PERE Decision
No. 210 (Novato).) In determining whether evidence
of
adverse action is established, the
Board uses an objective test and will not rely upon the subjective reactions
of
the employee.
(Palo Verde Unified School District (1988) PERE Decision No. 689.) In a later decision, the
Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERE Decision No. 864; emphasis added; footnote
omitted.)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERE Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERE 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. l 04); (3) the
employer's inconsistent or contradictory justifications for its actions (State
of
California
(Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer's
cursory investigation
of
the employee's misconduct (City
of
Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERE Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action (Oakland
Unified School District (2003) PERE Decision No. 1529) or the offering
of
exaggerated,
vague, or ambiguous reasons (McFarland Unified School District (1990) PERB Decision No.
786); (6) employer animosity towards union activists (Jurupa Community Services District
(2007) PERE Decision No. 1920-M; Cupertino Union Elementary School District (1986)
PERB Decision No. 572); or (7) any other facts that might demonstrate the employer's
unlawful motive. (North Sacramento School District, supra, PERE Decision No. 264; Novato,
supra, PERE Decision No. 210.)

SF-CE-2830-E
August
1,
2011
Page 7
A. 	Protected Activity
I. 	Filing Grievances
Moberg alleges that he engaged in protected activity by filing grievances.
It
appears
undisputed that Moberg filed multiple grievances, although the dates
of
the various grievances
are not entirely clear. From the facts available, Moberg filed grievances between October 29,
2009 and February 5, 2010. The filing
of
grievances under a labor agreement is protected
activity. (Sacramento City Unified School District (2010) PERB Decision No. 2129.) It is
presumed herein that the District would have been aware
of
the grievances since Moberg
would likely have filed them with a District manager and the District does not allege that it
lacked knowledge
of
the grievances. (Oakland Unified School District (2009) PERB Decision
No. 2061.) Accordingly, it appears that Moberg engaged in protected activity by filing
grievances between October 29, 2009 and February 5, 2010.
2.
	E-Mail Messages
Moberg alleges that he engaged in protected activity by sending e-mail messages on November
2, 4 and
6,
2009, in which he attempted to set an agenda for a meeting scheduled by the
District at which Moberg requested union representation. A copy
of
the November 4, 2009 e-
mail message is not provided by either party. The District has supplied copies
of
the
November 2, 2009 and November 6, 2009 e-mail messages. Moberg also alleges that he
engaged in protected activity by sending the e-mail messages
of
November 15, 2009 and
January 4, 2010, in which he complained about adverse conditions
of
employment, sought
union representation, and/or attempted to negotiate grievances and working conditions for
himself and another teacher. Copies
of
these e-mail messages were supplied by the District
and are quoted above.
The facts are insufficient to show that these e-mail messages were protected. "Copying a
union representative on correspondence, without more, neither rises to the level
of
protected
conduct nor establishes an intent to solicit union assistance." (Oakland Unified School District
(2007) PERB Decision No. 1880.) Employee complaints may be considered protected activity
if
they are "a logical continuation
of
group activity" and address concerns impacting
employees generally. (Los Angeles Unified School District (2003) PERB Decision No. 1552.)
Complaints undertaken for the benefit
of
a single employee, however, are not protected
activity.
(Ibid)
Moberg' s single statement at the end
of
a lengthy e-mail message to "see what
our colleague Jill Low thinks about all of this" does not appear to be a request for union
representation or an attempt to address issues impacting employees generally. Moberg's e-
mail messages sent to set an agenda for a meeting or discuss other aspects of his employment
likewise appear to be undertaken for his benefit alone and do not constitute protected activity.
Accordingly, these e-mail messages do not constitute protected activity for the purposes
of
a
prima facie case.

SF-CE-2830-E
August
1,
2011
Page 8
B. 	Adverse Action
Moberg alleges that the District took adverse action against him when it (1) decided to non-
reelect him for the subsequent school year; (2) adopted its Statement
of
Charges, (3) issued its
Resolution to adopt the proposed decision
of
dismissal; (4) adopted Supplemental Charges as a
basis for dismissal; (5) directed Moberg to speak only to Codianne; (6) subsequently directed
Moberg to speak only to Superintendent Shepard; and (7) required him to perform additional
work in preparing lesson plans.
I.
	Notice
of
Non-Reelection
Moberg alleges that on February 9, 2010, the District notified him
of
its decision to non-reelect
him for the subsequent school year. An employer's notice to a probationary employee that it
has decided not to re-elect the employee for the following school year is
an
adverse action,
if
done for a retaliatory reason. (Golden Plains Unified School District (2002) PERB Decision
No.1489;
Santa Maria-Bonita Elementary School District (1992) PERB Decision No, 924;
McFarland Unified School District (1990) PERB Decision No. 786.) Therefore, the District
allegedly took adverse action against Moberg on February 9, 2010 when it notified him
of
its
decision to non-reelect him. 	·
2.
	Adoption
of
Statement
of
Charges
Also on February 9, 2010, the District adopted its proposed Statement
of
Charges to terminate
Moberg for cause. An employer's notification
of
its firm intention to terminate an employee
constitutes adverse action. (Regents
of
the University
of
California (2004) PERB Decision
No. 1585-H.) Therefore, the Statement
of
Charges issued on February 9, 2010, constitutes an
adverse action.
3.
	Resolution
of
Dismissal
The charging party's burden includes alleging facts showing that the unfair practice charge
was
timely filed; i.e., that the alleged unfair practice occurred no more than six months prior tothe
filing
of
the charge. (Los Angeles Unified School District (2007) PERB Decision No. 1929; ·
City
of
Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited from issuing
a complaint with respect to any charge based upon an alleged unfair practice occurring more
than six months prior to the filing
of
the charge. (Coachella Valley Mosquito and Vector
Control District
v.
Public Employment Relations Board (2005) 35 Cal.4th 1072.) The
limitations period begins to run once the charging party knows, or should have known,
of
the
conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
Where a charging party alleges a new legal theory in an amended charge, based upon the same
set of facts as alleged in the initial charge, the new legal theory is said to "relate back" and be
timely filed. (Sacramento City Teachers Association (Franz) (2008) PERB Decision
No. 1959.) New factual allegations, however, do not relate back
if
they are not mentioned in

SF-CE-2830-E
August 1, 2011
Page 9
the initial charge. (Ibid.) An amended charge relates back to the original charge only when
it
clarifies facts alleged in the original charge or adds a new legal theory based on facts allegedin
the original charge. (Ibid.) The statute
of
limitations for a new allegation contained in an
amended charge begins to run based on the filing date
of
the amended charge, not the original
charge. (Sacramento City Teachers Association (Afarsh) (2001) PERB Decision No. 1458.)
Here, the Amended Charge was filed on March 14, 2011. Therefore, new factual allegations
occurring prior to September 14, 2010, are untimely filed.
On September 7, 2010, the District adopted its Resolution to adopt the proposed decision
of
dismissal by ALJ Anderson. PERB has held that, where an employee challenges a termination
via administrative procedures, the termination is final as
of
the issuance
of
an administrative
decision. (Los Banos Unified School District (2009) PERB Decision No. 2063.) Based upon
the facts available, it appears that Moberg's termination for cause became effective on
September 7, 2010.
This fact was raised for the first time in the Amended Charge filed on March 14, 2011, more
than six months after it occurred, and therefore it is untimely. (Coachella Valley Mosquito
and
Vector Control District
v.
Public Employment Relations Board, supra, 35 Cal.4th 1072.) This
allegation was not mentioned in the original charge and therefore does not relate back.
(Sacramento City Teachers Association (1\lfarsh), supra, PERB Decision No. 1458.) Therefore,
the allegation that the District issued its Resolution
of
Dismissal on September 7, 2010, is not
timely filed.
4.
	Adoption
of
Supplemental Charges
On June 7, 2010, the District filed Supplemental Charges against Moberg, alleging dishonesty
as a further basis for dismissal. The decision
of
the hearing officer, adopted by the District's
Governing Board on September 7, 2010, found that these supplemental allegations were not a
basis for dismissal. Facts concerning the Supplemental Charges are not included in the
original charge, and occurred more than six months prior to the filing
of
the Amended Charge
on March 12, 2011. Therefore, they do not relate back to the filing
of
the original charge.
(Sacramento City Teachers Association (1\larsh), supra, PERB Decision No. 1458.)
Accordingly, Moberg's allegations regarding the Supplemental Charges are untimely filed.
5.
	Directive to Speak only to Associate Superintendent Codianne
Moberg alleges that on January 26, 2010, Codianne issued him a Letter
of
Reprimand for
falsely claiming that he had failed to comply with Codianne's earlier directions regardingthe
use
of
a District radio. Moberg alleges that the District took adverse action against him by
directing that he speak only to Codianne while he was processing grievances and collecting
evidence to defend himself against the dismissal process. Moberg does not specify when this
directive was given, nor does he allege how this directive is connected to the January 26, 2010,
Letter
of
Reprimand. The charging party's burden includes alleging the specific dates on
which unlawful conduct allegedly occurred. (City a/Santa Barbara (2004) PERB Decision

SF-CE-2830-E
August
1,
2011
Page 10
No. 1628-M.) 	Neither party has supplied a January 26, 2010, Letter
of
Reprimand. Codianne
did issue Moberg a Letter
of
Reprimand dated January 25, 2010, but it does not contain a
directive to not speak to anyone else. In short, the basis for this allegation
of
adverse action
cannot be determined from the information supplied. The allegation that the District directed
him to speak only to Codianne is not in the original charge, and therefore is likely untimely
filed as occurring more than six months prior to the filing
of
the First Amended Charge.
(Sacramento City Teachers Association (Marsh), supra, PERB Decision No. 1458.)
6.
	Second Directive to Speak Only
To
Superintendent Shepard
Moberg alleges that "on February 12, 2010, Superintendent Shepard wrote to me directing that
I speak to no one in the District other than herself. I had two grievances pending at the time
and the Employer had brought a dismissal case against me at the time."2 Moberg does not
supply a copy
of
this directive, nor could it be located in any
of
the documents supplied by the
District. Insufficient facts are alleged to establish that this alleged conduct by the District had
an objectively adverse impact upon Moberg's employment. The case cited by Moberg, Desert
Community College District (2007) PERB Decision No. 1921, held that an employer violated
union access rights by attempting to modify an agenda item for a union meeting, and is
inapposite. Accordingly, Shepard's February 12, 2010 directive;as presently alleged, does not
constitute adverse action for purposes
of
a retaliation charge.
7.	
Requirement
of
Extra Work
On January 21, 2010, Codianne wrote to Moberg directing him to write detailed daily lesson
plans addressing each Individualized Education Plan (IBP) goal for his students. The District
made this directive in light
of
a finding that Mo berg's teaching was "disorganized and
disjointed" during a classroom observation. Moberg alleges that this took an additional two to
three hours per day, and that the CBA in effect between the District and his exclusive
representative provided for a 7.5 hour work day. Moberg alleges he was already working eight
to nine hours per day. The District alleges that it has a long-standing practice
of
requiring
teachers to maintain adequate lesson plans for their students. During the January 21, 2010
classroom observation, the District evaluator found that Moberg's lesson plans were
inadequate and this was reflected in a disorganized classroom presentation. Accordingly, the
District instructed him
to
develop lesson plans, as was required
of
all other teachers at the
District. Although Moberg alleges that developing the lesson plans took him an additional two
to three hours per day, he does not allege facts sufficient to establish that the District was
imposing upon him an onerous requirement or one not required
of
other employees, and
therefore taking action with an objectively adverse impact upon his employment. Accordingly,
these facts, as alleged, do not establish adverse action.
2 Moberg made similar factual allegations in the initial unfair practice charge.

SF-CE-2830-E
August 1, 2011
Page
11
C.
	Nexus
In order to state a prima facie case for retaliation, Moberg must establish that the District
decided, on February 9, 2010, to non-reelect him for the forthcoming year, and/or issued the
Statement
of
Charges on February
9,
2009, because ofhis protected activity in filing and
pursuing grievances between October 29, 2009 and February
5,
2010. It appears that close
temporal proximity is established, however the facts alleged do not otherwise demonstrate a
causal nexus.
Moberg alleges that he was the only teacher who was non-reelected in the 2009-2010 school
year after being rated as having met the overall standards
of
the teaching profession. Moberg's
January 20, 2010 classroom observation evaluation includes an overall determination that he
"meets standards," however, it also includes areas where he "partially meets standards." The
same is true
of
previous classroom observation evaluations dated September 29, 2009 and
November 9, 2009. Moberg's January 21, 2010, classroom observation rates him "partially
meets standards" overall. His summary evaluation dated February
5,
2010 also rates him
"partially meets standards" overall. Moberg does not allege facts to show that other employees
were "similarly situated" such that it is established that he was treated in a disparate fashion
from other employees who received similar evaluations. (San Mateo County Office
of
Education (2008) PERB Decision No. 1946 [no disparate treatment when employees are not
similarly situated].)
Moberg contends that it is inconsistent with District practice to non-reelect a teacher who had
been evaluated as "meets standards" or had received occasional praise for his/her performance.
However, Moberg offers no facts to show that the District always re-elected probationary
employees who had received occasional praise for their performance. Moreover, the facts do
not establish that Moberg had been evaluated as meeting standards, as shown by the February
5, 2010, summary evaluation.
Moberg also contends that the District demonstrated animosity towards union activity and
exaggerated reasons its for dismissing him for complaining about employment conditions,
filing grievances, and other protected matters. However, nothing in the notice
of
non-
reelection conveys union animus. While a few of the e-mail messages exchanged by Moberg
and the District prior to his suspension and dismissal refer to union representatives and the
grievance process, there is nothing which clearly suggests union animus or a direct nexus
between the adverse actions and protected activity. The Statement
of
Charges and Resolution
of
Dismissal set forth numerous specific reasons for Moberg's dismissal for evident unfitness
for service and persistent violation
of
or refusal to obey school laws or regulations, and
therefore Moberg's contention that the District sought to dismiss him for exaggerated reasons
lacks factual support.

SF-CE-2830-E
August
1,
2011
Page 12
Interference With Right To Collect Evidence
PERB Regulation 32615(a)(5)3 requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
PERB does not recognize an unfair practice charge
of
interfering with an employee's right to
collect evidence. An employer's duty to provide information to the exclusive representative
does not extend to individual employees. (Antelope Valley Hospital District (2011) PERB
Decision No. 2167-M.) Moberg does not allege any facts to support such a violation. It is
unclear on what basis Moberg believes the District interfered with his right to collect
evidence-presumably
in connection with pursuit
of
his defense at the OAH
hearing-and
therefore a prima facie case on this issue has not been stated.
For these reasons the charge, as presently written, does not state a prima
fade
case.4 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled Second Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by an authorized agent
of
Charging Party. The amended charge must have the case
number written on the top right hand comer
of
the charge form. The amended charge must be
3 PERB Regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq.
4
In
Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause
of
action and that .the
charging party is capable
of
providing admissible evidence in support
of
the allegations.
Consequently, where the investigation results in receipt
of
conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)

SF-CE-2830-E
August
1,2011
Page
13
served on
the
Respondent's representative and the original
proof
of
service must be filed with
PERB. If an amended charge
or
withdrawal is not filed on
or
before August 17, 2011, 5
PERB
will dismiss your charge.
If
you
have any questions, please call
me
at the above telephone
number.
aura Davis
Regional Attorney
LD
5 A document is "filed" on the date the document is actually received by PERB,
including
if
transmitted via facsimile. (PERB Regulation 32135.)