Mt. San Jacinto Community College District (PERB 2651E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ROBERT STOLK,
Charging Party, 	Case No. LA-CE-6052-E
v. 	PERB Decision No. 2651
MT. SAN JACINTO COMMUNITY COLLEGE 	June 24, 2019
DISTRICT,
Respondent.
Appearances: Anthony Vasek, Representative, for Robert Stolk; Atkinson, Andelson, Loya,
Ruud & Romo, by Paul Z. McGlocklin, Attorney, for Mt. San Jacinto Community College
District.
Before Banks, Shiners, and Paulson, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions by Robert Stolk (Stolk) to an administrative law judge’s (ALJ)
proposed decision (attached) dismissing the complaint and underlying unfair practice charge.
The amended charge alleged that the Mt. San Jacinto Community College District (District)
suspended Stolk from his duties as an Instructional Aide (IA) in the Chemistry Department in
violation of the Educational Employment Relations Act (EERA)1 because Stolk: (1) raised
safety concerns about a professor’s decision to use hydrofluoric acid, an especially corrosive
chemical, in a laboratory experiment; and (2) previously invoked his contractual right to appeal
discipline. The District’s evidence, however, led the ALJ to conclude that it had disciplined
Stolk because of a pattern of unsatisfactory performance, including inappropriate behavior
1 EERA is codified at Government Code section 3540 et seq.

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towards coworkers, overspending the department’s supply budget, and failing to follow various
directives. In his exceptions, Stolk contends the ALJ erred by crediting the testimony of the
District’s witnesses and failing to hold the District to its burden to prove its affirmative defense
that it would have suspended him even if he had not engaged in statutorily-protected activity.
We have carefully reviewed the proposed decision, the entire record, the parties’
submissions,2 and the relevant legal authorities, and we agree with the ALJ that the
preponderance of the evidence did not support the allegations of the complaint. We conclude
that the factual findings in the proposed decision are supported by the record and that its legal
conclusions are well reasoned and consistent with relevant authorities. Therefore, the Board
adopts the proposed decision as its own, as supplemented by the following discussion.
BACKGROUND
The record evidence established the following relevant facts, which we briefly
summarize for purposes of our discussion.
Stolk began working in the Chemistry Department at the District’s San Jacinto campus
in 2000. During the relevant time period, Stolk was an IA III, the second most senior grade in
the class. IAs prepare substances and instruments for experiments throughout the semester,
and it was Stolk’s responsibility to order the necessary supplies and set up the required lab
equipment. By all accounts, he was very skilled and excelled at handling chemicals, working
with students, and setting up laboratory experiments. Even the Dean of Instruction, Carlos
Tovares (Tovares), who ultimately initiated the discipline at issue in this case, acknowledged
Stolk’s professional competence.
2 Stolk filed a reply to the District’s opposition brief, to which the District objected.
We overrule the District’s objection and accept Stolk’s reply for the reasons stated in City of
Milpitas (2015) PERB Decision No. 2443-M, pp. 13-14.
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It is also undisputed that Stolk took safety very seriously. Many of the chemicals used
in the Chemistry Department’s experiments are dangerous, and Stolk was scrupulous about
labeling each chemical and ensuring it was stored and used correctly. Indeed, this commitment
to safety lies at the heart of Stolk’s case.
In December 2013, Carol Jones (Jones), an assistant chemistry professor, requested that
Stolk purchase hydrofluoric acid for use in a routine demonstration. Hydrofluoric acid is a
particularly dangerous chemical that can quickly cause significant bone and other tissue
damage. Stolk questioned Jones’s request, believing that the use of hydrofluoric acid was
unnecessary given the availability of less dangerous alternative chemicals and because the lab
was not equipped with the calcium gluconate counter-ion station necessary to counteract the
effects of accidental exposure to hydrofluoric acid. When Jones persisted, Stolk responded
that he did not wish to order hydrofluoric acid because it was too dangerous.
Subsequently, Stolk met with Tovares and relayed his concerns about Jones’s desire to
use hydrofluoric acid instead of a less dangerous alternative. The meeting did not produce the
desired result. Rather, according to Stolk, Tovares and other District administrators began to
target him for voicing his safety concerns.
In January 2014,3 Tovares issued Stolk a written reprimand based on perceived
performance deficiencies and poor interpersonal communications with another IA. Stolk wrote
a rebuttal alleging, in part, that he was being disciplined due to his opposition to the use of
hydrofluoric acid.
That March, Stolk submitted a purchase request for lab equipment that exceeded the
Chemistry Department’s annual $15,000 budget and resulted in a deficiency of $3,828. The
3 Unless otherwise noted, all dates hereafter refer to 2014.
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District was forced to transfer funds from other budgets to cover the shortfall. Since Stolk’s
job duties included managing the Department’s budget and ordering supplies, Tovares believed
he was responsible for the cost overrun and attempted to schedule a meeting with Stolk and
Jones to discuss the matter. Stolk did not respond to Tovares’s e-mails to schedule the
meeting. Instead, he told Jones he was only available to meet on one day during his normal
work hours. Stolk suggested at the hearing that he was unwilling to stay beyond his scheduled
hours because the District was generally unwilling to pay overtime. Stolk also contended that
the cost overrun was caused not by him but by a Galaxy4 malfunction or by tampering with the
program by unknown persons.
On April 30, severe windstorms struck the District’s San Jacinto campus. The District
sent an e-mail to all employees advising them not to come to campus or, if they were already
there, to remain inside until further notice. Stolk was at work that day and received the e-mail.
At some point, an administrative assistant, Debbie Perez-Flores (Perez-Flores), entered the lab
and made an announcement, after which students proceeded to pack up their belongings and
leave. Stolk was too far away to hear what she said. He claims an unnamed student told him
that Perez-Flores had told everyone to leave. Since Stolk was concerned about storm damage
to his home and car, he decided to leave the worksite based on this information.
The windstorm continued into May 1, and Tovares sent an e-mail that morning to all
IAs informing them that the San Jacinto campus was closed for the day. He instructed all IAs
to call his office and elect either to take a vacation day or report to Menifee Valley Campus for
professional development. Stolk received Tovares’s e-mail after he arrived at work; he
4 Galaxy is a software system through which authorized users may purchase items from
vendors, the cost of which are deducted from the Chemistry Department’s supply budget.
4

decided to use a vacation day and went home. However, Stolk did not inform Tovares’s office
of his decision.
Later that day, Tovares e-mailed Stolk to find out where he had been both that day and
the day before. He also instructed Stolk to contact Perez-Flores, who would schedule a
meeting between Tovares and Stolk to discuss the absences. Stolk responded the next day
stating that he elected to use a vacation day for May 1. However, he did not schedule a
meeting as directed or otherwise respond to Tovares’s e-mail.
On May 12, Jones complained to Tovares that Stolk had set up the wrong lab and was
not following the syllabus. Tovares e-mailed Stolk and instructed him to follow Jones’s
directions. Stolk responded via e-mail that Jones had told him in the presence of another
employee not to prepare the lab she was now complaining about. Tovares then went to the lab
to see Stolk. Stolk told Tovares that he set the lab schedule at the beginning of the semester
and Jones should have been aware of the lab Stolk had planned for that day.
On June 16, Tovares issued Stolk a Notice of Intended Disciplinary Action
recommending a two-step demotion to IA I. The stated bases for the discipline were Stolk’s
overspending the Chemistry Department budget, his failure to respond appropriately to
meeting requests, his unreported absences during the windstorm, and his failure to prepare
Jones’s requested lab, as well as his failure to attend a “mandatory” meeting for IAs.
Stolk wrote a lengthy rebuttal to the charges. He also later invoked a provision of the
collective bargaining agreement (CBA) between the District and Stolk’s exclusive
representative that entitled to him to an evidentiary hearing to contest the demotion. A hearing
never took place. Rather, over the course of the next year, after a failed settlement effort and
the hiring of a new Interim Vice President of Human Resources, the District decided to modify
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the discipline. In April 2015, the District issued Stolk a Notice of Intent to Suspend Without
Pay in Lieu of Involuntary Demotion, proposing a 5-day suspension. The proposed suspension
was upheld on June 23, 2015, after Stolk requested and received a Skelly5 hearing. Under the
CBA, employees have the right to an evidentiary hearing before the District’s governing board
only in cases of termination, demotion, or suspensions lasting more than five days. Thus, the
District’s decision to suspend Stolk for five days eliminated his opportunity to appeal the
discipline through the District’s formal hearing process, though he was entitled to submit a
written appeal to the governing board.
Stolk served his suspension in July 2015. On December 31, 2016, he retired from the
District.
DISCUSSION
Although the Board reviews exceptions to a proposed decision de novo, we are not
required to analyze arguments and contentions that have been adequately addressed in the
proposed decision. (City of Calexico (2017) PERB Decision No. 2541-M, pp. 1-2.) Nor does
the Board need to address alleged errors that would not affect the result, particularly where the
excepting party has simply reasserted claims without identifying a specific error of fact or law
to justify reversal. (Los Angeles Unified School District (2015) PERB Decision No. 2432,
p. 2.) Several of Stolk’s exceptions repeat arguments made to and considered by the ALJ.
Because the ALJ correctly applied the law to the facts, we need not address those exceptions.
Instead we consider only those exceptions that raise arguments not considered by the ALJ.
5 A Skelly hearing is a pre-disciplinary procedure wherein a public employee is afforded
constitutionally-required pre-deprivation due process before losing a property right. The term
derives from Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
6

The ALJ Correctly Dismissed the Complaint Allegations
To establish a prima facie case of retaliation in violation of EERA section 3543.5,
subdivision (a), a 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), pp. 6-8.) Once the charging party establishes a prima facie case, the burden shifts to
the respondent to demonstrate “(1) that it had an alternative non-discriminatory reason for the
challenged action; and (2) that it acted because of this alternative non-discriminatory reason
and not because of the employee’s protected activity.” (Palo Verde Unified School
District (2013) PERB Decision No. 2337 (Palo Verde USD), pp. 18-19.)
In the light of the record evidence, the ALJ concluded that Stolk made a prima facie
showing of retaliation, i.e., there was at least some reason to think the District disciplined him
because of his protected activities of opposing the use of a dangerous chemical and invoking
the protections of the CBA to challenge the proposed demotion. Turning to the District’s
affirmative defense, the ALJ examined the record and found that the District’s proffered
reasons for discipline were supported by the testimony and exhibits. The ALJ thus concluded
that the District would have suspended Stolk even if he had not engaged in protected activity.
Ultimately, Stolk was left with the familiar task of persuading the ALJ that the evidence
of discrimination was more probative of the District’s true motivation than the District’s
evidence of its alternative motivations. The ALJ was not persuaded; he found it more likely
than not that the District issued the 5-day suspension because management believed Tovares’s
concerns about Stolk to be true, and it arrived at its belief without regard to Stolk’s protected
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activities. The ALJ also rejected as insufficient Stolk’s attempts to show that the District was
wrong to believe Tovares, either because the accusations were factually untrue or because they
relied on unfair assumptions or inferences. In all of this, the ALJ applied the burden-shifting
framework adopted in Novato, supra, PERB Decision No. 210, pp. 6-8, and applied in
countless cases since. (See, e.g., Palo Verde USD, supra, PERB Decision No. 2337,
pp. 18-19.)
As previously mentioned, Stolk’s exceptions largely reprise the arguments he made to
the ALJ, though his principal focus is on the ALJ’s credibility determinations. According to
Stolk, the District’s proffered reasons for its decision to discipline him are unworthy of belief
because the decision-makers, most notably Tovares, had “unclean hands”6 and gave self-
serving, unreliable testimony regarding their motivations for disciplining Stolk. Stolk contends
that the ALJ did not sufficiently scrutinize these motivations and thus failed to detect that
Tovares and the other District administrators were being less than truthful.
The Board’s established policy is not to overrule an ALJ’s credibility determinations
unless the relevant evidence convinces us the determinations are incorrect. (State of California
(Department of Social Services) (2019) PERB Decision No. 2624-S, p. 11, citing Anaheim
Union High School District (2016) PERB Decision No. 2504, p. 14 [Board normally defers to
an ALJ’s credibility determinations “unless they are unsupported by the record as a whole”];
6 Traditionally, the doctrine of unclean hands is considered an equitable defense and “is
invoked [against] one seeking relief in equity [who] has violated conscience, good faith or
other equitable principles in his prior conduct.” (Fibreboard Paper Products Corp. v. East
Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO (1964) 227
Cal.App.2d 675, 727.) Since the doctrine is not strictly applicable here, we understand Stolk to
imply that the District’s witnesses were not worthy of belief because they conspired against
him, behaved with manifest bias, or otherwise failed to act ethically during the discipline
process. In the context of this case, we believe such concerns are best addressed as issues of
credibility.
8

Trustees of the California State University (San Marcos) (2010) PERB Decision No. 2093-H,
p. 3 [Board defers to ALJ credibility determinations absent evidence to support overturning
such conclusions]; Marin Community College District (1995) PERB Decision No. 1092, p. 9
[ALJ is much better positioned to accurately assess witness credibility based upon firsthand
observation than is the Board].) Having carefully examined the entire record, we find no basis
for reversing the ALJ’s credibility determinations.
Stolk also asserts that the District’s reasons for disciplining him were pretextual
because the evidence proved that he did not commit some of the alleged misconduct. But this
argument fails because Stolk did not marshal sufficient admissible evidence to support his
claim. As an example, Stolk failed to rebut or undermine the District’s evidence that he was
responsible for the budget overrun in March 2014. Stolk contends that the District’s budgeting
software application, Galaxy, should have alerted him to any cost overruns before processing
his purchase request. Since it did not, it must have malfunctioned or been tampered with by
nefarious actors. One can only arrive at such a conclusion by way of a rather lengthy series of
inferences, each of which must be tethered to the evidence. But Stolk’s theory rests almost
entirely on his testimony and that of Rosaleen Gibbons, a Chemistry Department faculty
member, who testified that Galaxy failed on two separate occasions to provide a warning of
insufficient funds. Neither could explain this phenomenon. Indeed, none of the witnesses with
sufficient demonstrated knowledge of the Galaxy software application testified as to how the
software was supposed to function or under what circumstances it might fail to function as
expected. In the absence of such evidence, we are left with the unrebutted facts that Stolk was
responsible for ordering supplies through Galaxy and managing the Department budget, and
IA IIIs, in general, are to ensure that such purchases adhere to the budget. Since Stolk was
9

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unable to supply the evidence necessary to undermine the District’s conclusion that he failed in
his responsibility, we cannot agree with him that the budget overrun was a pretext for
discipline and that retaliation was the District’s true motivation.7
The overarching theme of Stolk’s exceptions is his disagreement with the ALJ’s
conclusion that the District’s evidence of lawful motivation for his suspension outweighed the
evidence of retaliatory motive. But Stolk simply came forward with too little evidence of
discriminatory intent to carry his ultimate burden to prove his case by a preponderance of the
evidence. We therefore affirm the ALJ’s dismissal of the complaint and underlying unfair
practice charge.
The ALJ Correctly Applied the Unalleged Violation Doctrine
In addition to taking exception to the dismissal of the complaint, Stolk believes the ALJ
failed to apply the unalleged violation doctrine to reach allegations not set out in the complaint,
viz. that the District unlawfully denied him 2.5 hours of vacation time on April 30, 2014, and
that he was constructively discharged when he was forced to retire in December 2016. We
disagree.
Under the unalleged violation doctrine, PERB may consider allegations not included in
7 Stolk argues that even if he engaged in the conduct described in the Notice of Intent to
Suspend, that conduct was insufficiently egregious to warrant suspension. We reject Stolk’s
invitation to adopt a standard under which public employee discipline may be upheld only if
the employer presents objective evidence that the employee’s conduct “was so opprobrious,
flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial
disruption of or material interference with [the employer’s] operations.” PERB uses this
standard to determine whether an employee communication that would otherwise be protected
under the relevant statute lost its protection because of its content or the manner in which it
was communicated. (Chula Vista Elementary School District (2018) PERB Decision
No. 2586, p. 16; Rancho Santiago Community College District (1986) PERB Decision
No. 602, p. 13.) Stolk cites no authority—nor has our research uncovered any—for applying
this standard outside the context of employee speech.
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the charge or the complaint if: (1) the respondent has had adequate notice and opportunity to
defend against the unalleged matter; (2) the unalleged conduct is intimately related to the
subject matter of the complaint and is part of the same course of conduct; (3) the matter has
been fully litigated; (4) the parties have had the opportunity to examine and be cross-examined
on the issue; and (5) the unalleged conduct occurred within the same limitations period as
those matters alleged in the complaint. (Superior Court v. Public Employment Relations Board
(2018) 30 Cal.App.5th 158, 192-193; State of California (Department of Social
Services) (2009) PERB Decision No. 2072-S, pp. 3–4.)
Here, the ALJ correctly applied these factors and determined that he could not consider
the unalleged violations at issue in Stolk’s exceptions. While Stolk argues that the District was
on notice that he was seeking the lost vacation pay because he raised the issue of a make-whole
remedy in his opening statement at the hearing, we agree with the ALJ that this allegation was
untimely. With respect to the constructive discharge claim, Stolk alleges that he would not
have retired had PERB processed his charge before his retirement date. Regardless, PERB
issued the complaint approximately two months thereafter. At that time, Stolk could have
amended the complaint or he could have filed another, timely charge alleging constructive
discharge. He did neither. Since Stolk’s arguments do not alter the analysis, we adopt the
ALJ’s conclusion that the unalleged violation doctrine did not apply in this case.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-6052-E are
DISMISSED.
Members Shiners and Paulson joined in this Decision.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ROBERT STOLK,
Charging Party,
v.
MT. SAN JACINTO COMMUNITY COLLEGE
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-6052-E
PROPOSED DECISION
(December 15, 2017)
Appearances: Anthony G. Vasek, Representative, for Robert Stolk; Atkinson, Andelson, Loya,
Ruud & Romo, by Paul Z. McGlocklin, Attorney, for Mt. San Jacinto Community College
District.
Before Eric J. Cu, Administrative Law Judge.
INTRODUCTION
In this case, a former public school employee claims that a public school employer
suspended him in retaliation for raising safety concerns in his workplace and for requesting a
hearing to challenge proposed discipline. The employer denies that the former employee
engaged in any protected activities and denies any retaliation.
PROCEDURAL HISTORY
Robert Stolk filed the instant unfair practice charge with Public Employment Relations
Board (PERB or Board) on July 8, 2015. He accused his employer at the time, Mt. San Jacinto
Community College District (District or College) of multiple Educational Employment
Relations Act (EERA)1 violations dating back to mid-2014. Stolk amended his charge on
1 EERA is codified at Government Code section 3540 et seq.

August 24, 2015. The District filed position statements responding to both the original and the
amended charge.
On November 8 2016, Stolk withdrew the allegations that the District (1) violated
EERA sections 3543.5, subdivisions (b) or (d); (2) violated EERA by its conduct prior to
January 8, 2015; (3) violated his right “to be free from harassment;” and (4) violated his right
to a “good name.” That same day, the PERB Office of the General Counsel issued a complaint
alleging that the District violated EERA section 3543.5, subdivision (a), by issuing a notice of
intent to suspend and administering a five-day suspension to Stolk in retaliation for refusing to
procure a chemical for a colleague at the time and/or requesting a hearing regarding the
District’s contemplated discipline. On January 5, 2017, the District filed a timely answer to
the complaint denying the substantive allegations and asserting multiple affirmative defenses.
An informal settlement conference was held on February 10, 2017, but the parties did
not resolve the dispute. A formal hearing then took place over six days between June 7 and
August 2, 2017.
The parties submitted closing briefs on November 9, 2017. At that point the record was
considered closed and submitted for decision.
FINDINGS OF FACT
The Parties
The District is a public school employer within the meaning of EERA section 3540.1,
subdivision (k). Before his retirement in 2016, Stolk was a public school employee within the
meaning of EERA section 3540.1, subdivision (j). He worked at the District in classifications
represented by a local chapter of California School Employees’ Association (CSEA), which is
an exclusive representative within the meaning of EERA section 3540.1, subdivision (e).
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The Collective Bargaining Agreement
The District and CSEA are parties to a Collective Bargaining Agreement (CBA). CBA
Section 2.3, states that the District may suspend provisions of the CBA during cases of extreme
emergency requiring closure of the College, suspension of classes, or other substantial
disruption. If this occurs, the District is required to meet with CSEA and attempt to reach
agreement on which sections of the CBA are affected and for how long.
Article 5, covers hours and overtime. Full-time unit members may receive overtime or
compensatory time off for work time in excess of their regular scheduled hours. Under Section
5.3, unit members are not permitted to volunteer time in an unpaid status for duties
substantially similar to those contained in their job descriptions.
Article 14 covers discipline. Under Section 14.4, the District is required to notify unit
members of proposed discipline, defined as termination, demotion, or a suspension greater than
five days. That notice must inform the employee of his or her right to appeal the discipline
through a hearing before the District’s governing board or its designee under Administrative
Procedure 7365 (AP 7365).2 Section 14.5 describes the hearing process and allows the
employee to present sworn witness testimony, cross-examine opposing witnesses, and present
other evidence.
Section 14.10, provides for a different appeal process for suspensions of five days or
less. Under that process, the unit member may appeal the process by submitting a written
request to the governing board. The governing board will review the written request and,
without a hearing, issue a decision within 30 days.
2 AP 7365 governs discipline and dismissal for classified employees. It describes
“discipline” as termination, demotion, and a suspension of more than five days. An employee
subject to a final notice of disciplinary action is entitled to a hearing before the District’s
governing board or its designee.
3

Article 15 concerns vacation requests. Unit members should submit vacation requests
at least two weeks in advance and must have prior approval from a supervisor. Under Section
15.6, unit members absent without approved vacation time may have that time deducted from
their salary.
Article 19 discusses safety concerns. Unit members are expected to advise the District
of unsafe conditions on District grounds. Unit members may report safety concerns either to
their direct supervisor or to any faculty members they support.
The Instructional Aide Position
Chemistry Instructional Aides work with faculty in testing and preparing substances
and instruments used in student or faculty laboratory experiments. This could involve
physically setting up and calibrating lab equipment, mixing and handling chemical compounds,
and disposing of those compounds after the lab. Faculty may ask Instructional Aides to
conduct pre-runs of lab experiments to help ensure that students will be successful when they
do the experiments for themselves. Some faculty request Instructional Aides to assist with
actual lab work, such as helping students with lab experiments, performing demonstrations,
and explaining lab and safety concepts. Dean of Instruction, Dr. Carlos Tovares explained that
Instructional Aides act in a support role for faculty, but are supervised directly by him.
As one might expect, safety is an important concern in the lab. According to the job
description for the position, Instructional Aide IIIs are expected to keep current on matters
such as lab safety and handling hazardous materials. The position is likewise expected to
implement procedures in order to comply with laws and regulations pertaining to safe
operation in academic labs. Dr. Rosaleen Gibbons, currently the Department Chair for the
4

College Chemistry department, said she left Stolk in charge of day-to-day lab safety
responsibilities, when the two worked together.
Instructional Aide IIIs also have some responsibility over the department supply
budget. In the Chemistry department, Instructional Aide IIIs are assigned to order lab
materials and equipment. Oftentimes, this involves using the Galaxy software system, where
authorized users may purchase items from vendors. The cost of those purchases is eventually
deducted from the Chemistry department supply budget. Instructional Aide IIIs may initiate
purchases through Galaxy and are responsible for ensuring that purchases adhere to the budget.
The Galaxy Budget Software
Once a purchase is initiated through Galaxy, the system initiates a multi-level review
process involving the department chair, the Office of Instruction, which oversees the various
academic departments at the San Jacinto campus, and the District’s Business Services
Department. In the system, each review level is labeled an “approval” step, but Tovares
described the process as merely making those in the chain aware of the various purchases as
they are made. In his testimony, Tovares expressed that he would not be surprised if the other
reviewers, simply indicated their “approval” without undergoing any significant review.
However, he acknowledged not knowing how extensively others reviewed individual purchase
requests. Tovares cited only one instance in which he rejected a purchase request through the
Galaxy system, and that was because he did not believe the process could be completed before
the end of the fiscal year. Tovares emphasized his expectation that Instructional Aide IIIs are
primarily responsible for ensuring that the department has the funds necessary for the
purchase. He said that Instructional Aide IIIs should maintain their own budget records or take
other steps to ensure the budget is not exceeded.
5

If a purchase request made in the Galaxy system would exceed the budget, the system
typically generates a pop-up style alert that there are insufficient funds in the budget category
identified for the request. There was conflicting evidence about who can override this alert
and continue with the purchase. In any event, the initiator of the request may try to complete
the purchase by choosing another budget category or securing additional funds to cover the
purchase. If a purchase request exceeds the budget and is completed without securing the
funds for that purchase, it would result in an overage.
Gibbons testified about a budget overage she nearly created in or around January 2015,
while initiating a purchase request for a gas chromatography mass spectrometer instrument.
She said she attempted to make a purchase and was surprised to find out that the Galaxy
software did not generate an insufficient funds alert. She said she notified Tovares that her
purchase may exceed her budget and then she obtained the necessary funds through a grant.
Stolk’s Employment History
In 2000, Stolk began working as an Instructional Aide II in the Chemistry department
of the College’s San Jacinto campus. His last position at the District was Instructional Aide
III. It is undisputed that Stolk was very skilled when handling chemicals and lab equipment
used in experiments. According to Gibbons, Stolk was very meticulous when using or storing
chemicals and paid particular attention to lab safety. Tovares too, admitted that “everybody
recognizes that Bob [Stolk] has these great skills” relating to setting up labs and maintaining
lab equipment.
In the Fall 2013 semester, Dr. Carol Jones was the Interim Assistant Chemistry
Professor at the San Jacinto campus. At that time, Gibbons worked as an adjunct faculty
member, teaching Chemistry courses at both the San Jacinto and Menifee campuses. Stolk
6

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described his working relationship with Jones as initially good. He testified that his
interactions with her were “very polite, courteous, and professional.” However, at some point,
Stolk became concerned about Jones’s attention to lab safety after a disagreement over how
much yellow phosphorus to use in an unplanned combustion demonstration. Jones did not
testify and had left the District by the time of the hearing in this case.
Tovares testified that Jones complained that Stolk was inflexible and not amenable to
changes in her student lab schedule. Tovares also recalled Jones telling him that Stolk did not
order lab supplies she requested, stating either that the items she wanted were unsafe or that
alternatives were available. At some point, Jones reported to Tovares that Stolk asserted that
he was responsible for having District employees fired. Tovares considered Jones’s comments
to be similar to those of Dr. David Bookin, who was a full-time Chemistry faculty member at
the College until he retired in 2012. According to Tovares, Bookin complained that Stolk was
inflexible and refused to make changes to labs or to the lab schedule. Bookin’s description led
Tovares to counsel Stolk about being more collaborative and working to support faculty.3
In or around November 2013, Leo Hayashibara was an Instructional Aide I at the San
Jacinto campus Chemistry department. Tovares testified that Hayashibara reported that Stolk
had called him (Hayashibara) an “idiot” during worktime. According to Tovares, Hayashibara
also reported other disrespectful treatment from Stolk, including that Stolk boasted that he was
responsible for having employees fired. Hayashibara did not testify and had left the District by
the time of the hearing.
Stolk admitted to calling Hayashibara an “idiot,” after seeing him mock certain safety
protocols Stolk had initiated. Stolk later apologized. At hearing, Stolk said that he had
3 Bookin did not testify.
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approached Tovares about his own concerns that Hayashibara was being disrespectful to him
(Stolk). Stolk also testified that he tried to acknowledge it when he noticed Hayashibara doing
good work. Stolk denied ever saying that he had employees fired.
In December 2013, Stolk began locking the doors to the Chemistry lab until classes
started. Stolk did not consult with faculty or with Tovares before doing so. At hearing, Stolk
explained that his decision was consistent with safety trainings he participated in, including
those suggested by Bookin. He acknowledged that Jones did not have such a policy when she
was the interim full-time Chemistry faculty at the San Jacinto campus.
The Hydrofluoric Acid Discussion
Sometime during the Fall 2013 semester, Jones asked Stolk if the department had
hydrofluoric acid available to use in an electrolyte demonstration for one of her Chemistry
classes.4 Multiple witnesses testified that hydrofluoric acid is very dangerous substance. This
is because the fluorine atom is highly electronegative, meaning the atom is very attracted to
positively charged atoms, including those found in human tissue. One particular concern is
that the fluorine atom in hydrofluoric acid can easily permeate the skin and attempt to bind to
the positively-charged calcium atoms found in muscle and bone tissue. This could result in
severe degradation of those tissues, causing extreme pain and possibly irreversible damage.
Hydrofluoric acid also releases dangerous vapors which can be harmful if inhaled. Proper
handling of hydrofluoric acid requires a calcium gluconate counter-ion station designed to
counteract the electronegative properties of the substance. A standard lab cleaning station will
4 In general, an electrolyte demonstration is designed to highlight the difference
between ionic compounds, which are conductive in aqueous solutions (dissolved in water), and
molecular compounds, which are not. The demonstration involves placing electrodes (wires)
that are connected to a lightbulb into various solutions one at a time and then running an
electric current through the electrodes to see whether and to what extent, each different
solution conducts enough electricity to light the bulb.
8

not suffice because even a thorough rinse will not negate the effects of hydrofluoric acid on
human tissue. The College Chemistry department does not have a counter-ion station.
Stolk asked why Jones wanted to use hydrofluoric acid, given the dangers of that
substance and that the department already had the chemicals typically used for the
demonstration in question. Stolk tried to explain the dangers of the substance but, according to
him, Jones persisted. Stolk responded with words to the effect of “Dr. Jones, I really don’t
want to order it. It’s dangerous.”
Around one or two days later, Stolk and Tovares met and discussed the hydrofluoric
acid incident. Stolk testified that he tried to explain his safety concerns about the substance,
but Tovares asked, in a condescending manner, whether Stolk would order it for Jones. Stolk
responded with words to the effect of “you know Dr. Carlos Tovares, I don’t want to order it.”
Initially, Tovares did not recall meeting with Stolk for the specific purpose of discussing
hydrofluoric acid and did not recall asking Stolk whether he would order it. On cross
examination, Tovares acknowledged that Jones informed him of her discussions with Stolk
about the substance. Tovares also testified that he may have had some kind of discussion with
Stolk about the subject. He recalled Stolk expressing reluctance at ordering hydrofluoric acid
for safety reasons and because Stolk believed that alternatives were available.
The January 15, 2014 Written Reprimand
On January 15, 2014, Tovares issued Stolk a document entitled “Written Reprimand,”
based on what Tovares considered unsatisfactory performance in assigned duties and
interpersonal communications. At the time, the District’s Vice President of Human Resources
(HR) was Irma Ramos. In general, the letter addressed Stolk’s treatment of Hayashibara,
9

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deficiencies in Stolk’s preparation of lab materials, his failure to properly order lab supplies
and materials, and the unilateral decision to lock lab doors.5
At hearing, Tovares explained that he considered this conduct to be problematic
because he believed Instructional Aides should act in a support role for faculty. In his opinion,
Tovares felt that Stolk was trying to exert an inappropriate amount of control over academic
matters in the lab, which Tovares considered to be the purview of Chemistry faculty.
Stolk issued a rebuttal to the discipline on January 24, 2014, explaining the difficulty he
has working with Hayashibara. Stolk also discusses the hydrofluoric acid incident, stating that
he continued to have safety concerns about using that substance, but would order it if Jones
insisted upon using it.
The Chemistry Budget Overage
In or around March 2014, Stolk submitted a purchase requisition for Chemistry
department materials. He submitted the request through the Galaxy system and it went through
the standard review chain process, including Marlon Nance, acting in the capacity of
Chemistry Department Chair at the time, Debbie Perez-Flores, Administrative Assistant in the
Office of Instruction, Tovares, and presumably someone from the Business Services Office.
On or around April 23, 2014, Tovares was informed from the District’s Business
Services Office that the Chemistry department had overspent its annual supply budget by
$3,828. At the time, the department’s supply budget was around $15,000. After discovering
the overage, the Office of Instruction cancelled some of the purchases and transferred funds
5 Each party produced a different version of this Written Reprimand. The District’s
version was three pages long. Stolk testified that the version he received was only two pages
long and that he did not receive the middle page as depicted in the District’s version. I credit
the District’s position over Stolk’s in this instance. Stolk’s rebuttal acknowledges that the
Written Reprimand accuses him of refusing to order chemicals he felt were too expensive.
That accusation appears only on the middle page of the reprimand.
10

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from other budgets to cover the loss. The Office of the Vice President of Instruction provided
the funds to cover the remaining balance, something Tovares considered embarrassing.
On April 23, 2014, Tovares e-mailed Stolk and Jones, directing them to meet with him
to discuss the negative budget. He instructed both to contact Perez-Flores with their
availability. On April 24, 2014, Tovares sent a similar directive to Nance.
Nance and Jones both replied to Tovares’s e-mail, providing multiple possible dates for
the meeting. Stolk never replied directly, but told Jones that he was only available to meet on
one day. That date conflicted with Nance’s stated availability. Tovares scheduled the meeting
for May 7, 2014, at 4:00 p.m., even though it was not the one date Stolk provided. At hearing,
Tovares explained that he felt Instructional Aides have more flexibility in their schedule
because they work a standard five day work-week. Faculty, on the other hand, are not on
campus every day. In addition, Tovares said that the District can adjust classified employees’
schedules for meetings outside their regular hours. Stolk acknowledges that classified
employees may receive overtime or compensatory time off for attending meetings outside their
shift.6
The Office of Instructions sent an electronic invitation for the May 7 meeting to Nance,
Jones, and Stolk. On the morning of April 30, 2014, Stolk declined the invitation, stating that
he had two labs scheduled for that day and was scheduled to leave between 2:30 p.m. and 3:00
6 At hearing, Gibbons testified that, as the current Chemistry Department Chair, she
disagrees with District administration’s apparent policy of valuing the schedules of faculty
members over classified staff. She said that the failure to consider Instructional Aides’
schedules raises safety issues because Instructional Aides deal with sometimes deal with
volatile compounds during lab experiments and are often expected to monitor students during a
lab when the faculty member has to step away. Gibbons was not the Department Chair on May
7, 2014 and there was no evidence regarding the type of labs or other assignments Stolk had on
that date. Nor was there evidence about whether Stolk’s attendance outside his regular job
shift created a safety concern.
11

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p.m. Tovares directed Stolk to adjust his schedule so that he could attend the meeting. Stolk
ultimately did attend. No witness testified about the details of that meeting.
Purchase Request R4024632
On or around March 10, 2014, Stolk initiated Purchase Request R4024632. According
to the document, the request was for glassware in the amount of $2,610.40.7 Stolk testified
that he submitted this purchase request during the time he was accused of exceeding the
Chemistry department supply budget, but no witness or other document indicated that this was
the actual request that created the overage. Tovares testified that he did not recognize
Purchase Request R4024632. He further testified that the purchase requests he reviews look
different from the version of R4024632 Stolk submitted into the record. That document lists
Tovares, Perez-Flores, Nance, and Business Services employee Elizabeth Worthington as part
of the approval list for R4024632. Tovares testified that he did not recall disciplining Nance or
Perez-Flores about R4024632 and he himself was not disciplined in connection with that
request. He did not know if Worthington was disciplined, as she is outside his chain-of-
command.
The Science Instructional Aides Meeting
District Vice President of Instruction Dr. Pat Schwerdtfeger scheduled a meeting for all
Instructional Aides in science fields to meet on April 4, 2014. Tovares attended, but Stolk was
not present. Tovares said that Instructional Aides discussed “shared experiences” and changes
to policies and procedures at the meeting.
7 Stolk also introduced e-mail correspondence from District representatives referring to
request R4024632, but the content of that correspondence was entirely hearsay.
12

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The Windstorm
On April 30, 2014, there was a large windstorm in the San Jacinto area. At 10:53 a.m.,
that morning, the District e-mailed all employees stating, in pertinent part:
Travel to the San Jacinto Campus is not advised today due to high
winds. If you planned to attend a meeting at SJC, please let your
supervisor know you are advised not to travel to SJC.
Employees at the San Jacinto campus are urged to remain inside
buildings for their safety until further notice.
Stolk was scheduled to work a standard eight-hours that day. He confirmed that he received
the e-mail. At some point that day, Perez-Flores entered the Chemistry lab during instruction.
Stolk testified that he was working with a student about 30 feet away at the time and he did not
hear what Perez-Flores said. He saw students packing up their belongings and preparing to
leave. He asked someone in the room8 about what Perez-Flores said and, according to Stolk,
that person said that Perez-Flores told “all of us to leave.” Stolk then left for the day. Stolk
testified that he left right away because he was concerned over the damage the windstorm was
causing to his house and vehicle. Stolk admitted that he did not notify anyone beforehand.
Tovares was at a different campus that day. He directed his staff to check the San
Jacinto campus and ensure sure that all buildings were secured during the storm. Staff
reported to him that the Chemistry area was dark and that no one was there.
The windstorm continued on May 1, 2014. Tovares e-mailed the Instructional Aides
that morning stating:
Dear IAs,
The SJC and SGP are closed today for faculty and students. IAs
are to take a vacation day or as another option you may go to
8 Stolk did not identify the person he spoke with or state whether the individual was a
student or a District employee.
13

MVC and work with your counterparts at Menifee as work and as
professional development/cross training.
If you are going to MVC let the folks over there know you are
going.
Please contact this office ASAP to let us know your plans.
Stolk reported to work and saw Tovares’s instructions. He elected to use a vacation day
because of his continued concerns for his house and vehicle. Stolk again admitted that he did
not notify anyone of his decision beforehand. He testified “[t]he reason I left to go to vacation
and I didn’t check in is because that morning, when I came to work, I saw roof shingles
coming off my house.” He also said that there was some confusion about the instructions
because during a previous windstorm, the San Jacinto campus was closed for the whole week
and the District paid employees for that time.
Later in the day on May 1, 2014, Tovares e-mailed Stolk asking him about his absences
that day and the day before. Tovares concluded his e-mail
Please contact Debbie [Perez-Flores] to arrange a time for you
and I to meet to discuss your behavior the last couple of days
during this emergency. You may want to consider having union
representation for the meeting.
Stolk replied to Tovares the next day, stating that he elected to use a vacation day on May 1.
He did not respond to Tovares’s inquiry about April 30, and did not mention Tovares’s
meeting request. Stolk also never contacted Perez-Flores to arrange for a meeting, per
Tovares’s instructions. He also did not contact Tovares directly for that purpose.
On May 12, 2014, Stolk submitted an absence request form to the District seeking to
use 2.5 hours of vacation time for his absence on April 30. He also submitted his time sheet,
again indicating 2.5 hours of vacation time on April 30 and also 8 hours of vacation time on
May 1. The District approved Stolk’s use of his vacation time on May 1, but not for April 30.
14

Jones’s Chemistry 102 Lab
On Monday, May 12, 2014, Jones e-mailed Tovares accusing Stolk of setting up the lab
scheduled for Wednesday, instead of the lab scheduled in her Chemistry 102 syllabus. The e-
mail stated that there was still time for Stolk to set up the correct lab. Tovares e-mailed Stolk
directing him to comply with Jones’s request. Stolk responded that Jones told him not to
prepare that lab that day and that another employee could verify what Jones said. Tovares did
not inquire about that other employee. Tovares went to speak with Stolk that day. According
to Tovares, Stolk said that he (Stolk) sets the lab schedule at the beginning of the semester and
that Jones should have been aware of his plans. Stolk did not deny this.
The June 16, 2014 Notice of Intended Disciplinary Action
Tovares decided that Stolk’s conduct that semester warranted further discipline.
Tovares created a Notice of Intended Disciplinary Action, in which he recommended a two-
step demotion. At the time, Melissa Kane was the District’s Interim Vice President of HR.
Tovares issued the document to Stolk on June 16, 2014. The stated basis for the discipline was
Stolk’s overspending the Chemistry supply budget, his recalcitrance toward attending the
scheduled budget meeting, his unreported absence on April 30, 2014, his communications
failures during the windstorm, his decision to not prepare Jones’s Chemistry 102 lab, and his
failure to attend what Tovares described as the “mandatory” meeting for all science
Instructional Aides.
Stolk submitted his response to the Notice of Intended Disciplinary Action later that
day. Regarding the budget issue, Stolk questioned why the Galaxy software did not issue an
insufficient funds alert during the purchases in question and suggested that the problem be
investigated. Stolk pointed out that he had never previously overspent the budget, that he
15

maintains his own budget records, and that he has previously pointed out others’ record-
keeping errors.
Regarding the meeting that followed the budget overage, Stolk stated that he initially
declined the meeting invitation because he believed that the District disfavors giving
employees compensatory time off for working outside of their regular hours and that he had
hoped that Tovares would have contacted him with an alternative date.
Regarding his absences during the windstorm, Stolk stated he had heard from Perez-
Flores that the District was shutting the San Jacinto campus down and that she did not tell him
or the faculty member he was working with to stay on campus. As for his absence the next
day, Stolk admitted that he did not notify the District of his plans to use vacation time, again
citing concerns about damage to his house and vehicle. His response did not specify why he
did not contact the Office of Instruction to schedule a meeting, as directed by Tovares.
Regarding the Chemistry 102 lab setup, Stolk said that Jones had informed both him
and another Instructional Aide, Sylvia Heredia, that she did not want the lab setup, only to later
change her mind. Stolk wrote that he felt it was unsafe to prepare the lab in the short amount
of time remaining before class. Stolk wrote that Heredia could corroborate his account.
Stolk again raised the hydrofluoric acid incident, in response to Tovares’s assertion that
Stolk was improperly attempting to determine what faculty can teach and when it can be
taught. Stolk wrote that he had serious concerns about using that substance and that his efforts
to inform them of its dangers should not be interpreted as insubordination.
Regarding the Instructional Aides meeting, Stolk said he wanted to attend, but was
assisting a faculty member with a lab that day.
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Tovares no longer had a formal role Stolk’s disciplinary matter after issuing the Notice
of Intended Discipline.
The 2014 Skelly9 Meeting
On June 26, 2014, the District scheduled a Skelly meeting for Stolk to respond further
to the charges in the Notice of Intended Disciplinary Action. That meeting occurred on or
around July 10, 2014, before Vice President of Student Services Bill Vincent, who served as
the Skelly officer. CSEA representative Edward Saucedo represented Stolk during the meeting.
On July 23, 2014, Vincent issued written findings, supporting the recommendation for the
involuntary two-step demotion. Around this time Victor Collins replaced Kane as Interim Vice
President of HR.
On August 22, 2014, the District issued Stolk a Final Notice of Disciplinary Action,
stating its intent at the time to administer the two-step involuntary demotion for largely the
same reasons already written in the Notice of Intended Disciplinary Action. This new notice
notified Stolk of his right to appeal the District’s decision to its governing board by filing a
written answer to the charges and submitting a hearing request to HR.
Subsequently, Stolk requested a hearing to appeal the disciplinary decision. Although
the record does not specify when Stolk first made this request, the District appears to have
considered the request timely.
The Settlement Discussions
At some point during the Fall 2014 semester, the District, Stolk, and CSEA engaged in
settlement discussions, whereby Stolk would admit wrongdoing and agree to a voluntary
9 The term Skelly meeting refers to a pre-disciplinary procedure that complies with the
due process requirements set forth in Skelly v. State Personnel Board (1975) 15 Cal.3d 194, in
which public employees may challenge the sufficiency of the evidence in certain proposed
discipline.
17

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unpaid suspension in lieu of demotion. Gibbons, who was the Interim Full-Time Chemistry
faculty that semester, recalled that Tovares approached her about Stolk’s possible suspension
that school year. Gibbons expressed concern over how faculty could conduct labs in Stolk’s
absence.
The District initially proposed a 10-day voluntary suspension. By December 30, 2014,
the District prepared a draft agreement for a seven-day suspension. Stolk rejected the proposal
and elected instead to go forward with his appeal.10 Around this time, Stolk contacted Dr.
Anthony Vasek, a faculty member, for assistance in his discipline.
Stolk’s 2014 Performance Evaluation
Tovares issued Stolk a performance evaluation in October or November 2014. In
general, Tovares praised Stolk’s skills in handling chemical compounds and lab equipment.
However, the evaluation was largely critical of Stolk in areas of interpersonal communications,
taking direction, and attitude. In one area of the evaluation, Tovares wrote that “[s]afety is
important, but the goal should be to create a great safe learning environment. [Stolk] uses
safety as a cudgel to get his way in the operation of the lab.” Unlike with typical Instructional
Aide evaluations, Tovares did not seek substantive faculty input before issuing Stolk’s
evaluation. Gibbons reviewed the evaluation and disagreed with its conclusions. She issued
her own assessment of Stolk’s performance in December 2014, describing him as exceeding
standards in all performance areas.
10 Stolk testified that he “elected to go on in the Skelly procedure and testify in my
defense.” I interpret this to mean he expressed his desire to continue with his right to an
evidentiary hearing to challenge the demotion.
18

Vasek’s E-Mails About Hydrofluoric Acid
In March 2015, Vasek e-mailed District faculty members, classified employees, and
administrators about possible exposure to toxic chemicals on District property. In one e-mail,
dated March 10, 2015, entitled with the subject line “Risk of Lethal Exposure to Toxic
Chemicals,” Vasek mentions that he reported his concerns to the local police and district
attorney’s offices, U.S. Occupational Safety and Health Administration, the California
Division of Occupational Safety and Health, the Office of the Chancellor for California
Community Colleges, and the District’s governing board. His e-mail included links to letters
he submitted to those entities. There was no evidence of any response from any outside entity.
The text of Vasek’s e-mail does not identify Stolk by name or state that hydrofluoric
acid is the substance at issue, but the links provide significant information on both, from
Vasek’s perspective. Some faculty members or other recipients responded to Vasek’s e-mail
resulting in various perspectives about the danger of hydrofluoric acid and faculty members’
prerogative to use potentially dangerous substances.
The April 16, 2015 Notice of Intent to Suspend
Jeff Horsley replaced Collins as Interim Vice President of HR in January 2015. On
April 16, 2015, he issued Stolk a document entitled Notice of Intent to Suspend Without Pay in
Lieu of Involuntary Demotion (Suspension Notice). Horsley testified that he reviewed the
documents relating to Stolk’s discipline history, including the January 15, 2014 Written
Reprimand, the June 16, 2014 Notice of Intended Disciplinary Action, and Stolk’s responses to
those documents. He also spoke to Tovares about his concerns with Stolk.
The Notice of Intent to Suspend included seven charges, and was similar to the Notice
of Intended Disciplinary Action drafted by Tovares. The charges included: (1) Stolk’s failure
19

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to attend the April 4, 2014 science Instructional Aides meeting;11 (2) Stolk’s role in the $3,828
Chemistry supply budget overage; (3) Stolk’s initial refusal to meet to discuss the overage; (4)
Stolk’s unexcused absence on April 30, 2014; (5) Stolk’s unexcused absence on May 1, 2014;
(6) Stolk’s failure to follow Tovares’s directives to schedule a meeting to discuss his absences;
(7) Stolk’s failure to set up the proper Chemistry 102 lab for Jones. The Notice of Intent to
Suspend also outlined Stolk’s right to respond. Under CBA Section 14.10, classified unit
members have the right to submit a written appeal to the District’s governing board. There is
no right to an evidentiary hearing.
At hearing, Horsley testified that he understood at the time that the proposed
suspension had a different appeal process from the earlier-proposed demotion, but testified that
the available appeal process did not factor into his determination to pursue a suspension in lieu
of demotion. He explained that he saw some recurrence of earlier misconduct in the current
claims about Stolk, but nevertheless concluded that a demotion was too harsh of a punishment.
Horsley testified that he considered a five-day suspension more appropriate and more
consistent with progressive discipline principles.
Horsley acknowledged seeing Vasek’s March 2015 e-mail communications about the
toxic substances. Horsley testified that he did not view the links in Vasek’s e-mails. It is
unclear whether he understood that those e-mails related to Stolk’s personnel matter.
Horsley assigned then-Interim Associate Dean of HR Jeannine Stokes to serve as the
Skelly officer in Stolk’s pending disciplinary matter. Horsley retired from the District when
his contract ended, on or around April 30, 2015.
11 Unlike the Notice of Intended Disciplinary Action, the Suspension Notice did not
describe this meeting as “mandatory.”
20

The April 23, 2015 Skelly Meeting
The Skelly meeting regarding the Notice of Intent to Suspend occurred on April 23,
2015. Stokes served as Skelly officer. Stolk appeared with CSEA representative Gary Snyder.
At the outset of the meeting Stokes informed Stolk and Snyder that this was their opportunity
to respond to the charges and that she had not yet reviewed Stolk’s personnel documents or the
documents attached to the Suspension Notice. She was also not aware at the time of the
District’s prior effort to demote Stolk.
Stokes was the only witness who testified about the meeting in any detail. She said that
she went through each of the charges with Stolk and that he explained his position. She
recalled that Stolk focused the discussion on his relationship with Jones, describing her as
“incompetent.” Stolk did not mention either the hydrofluoric acid incident or his earlier
request for a hearing to appeal the then-contemplated demotion. During this discussion, Stolk
referred to a written statement, which he later provided to Stokes. The statement was based on
Stolk’s written response to the District’s June 16, 2014 Notice of Intended Disciplinary Action.
Stokes testified that Stolk confirmed that he did not set up the Chemistry 102 lab, as
instructed to by Jones, because he felt doing so would be unsafe and would take around three
hours. Stolk also admitted to not notifying the District before leaving campus on April 30,
2014 and not reporting to work on May 1, 2014. Stolk also admitted to not attending the Vice
President’s Instructional Aides meeting, stating that he had to set up a lab for an instructor at
the time.
Regarding the issue with the Chemistry budget, Stokes recalled that Stolk said that he
lacks the authority to override the safeguards preventing excess purchases. He also said that he
21

was trying to avoid using overtime to attend the budget meeting called by Tovares. He said
that he did attend the meeting, as scheduled.
After the meeting, Stokes reviewed the documents related to the charges, including
Stolk’s prior discipline and his recent performance evaluation by Tovares. She did not
specifically recall reviewing Stolk’s responses to any disciplinary document, but it is her
practice to review all documents in the file. In addition, Stolk provided her with a statement
based on his response to the Notice of Intended Disciplinary Action. She also met with
Tovares and Perez-Flores. She did not speak to Jones, who had left the District by then.
At the end of her review, Stokes concluded that the proposed five-day suspension was
warranted. She found that it was Stolk’s responsibility to ensure that the Chemistry
department stayed within its budget and she believed that Stolk overrode the safeguards in the
Galaxy system. She also found it problematic that Stolk did not inform anyone even after the
overage occurred. She found Stolk’s contention that the system had a glitch to be unlikely
given that she never encountered such a problem, despite using Galaxy nearly every day. She
also credited Perez-Flores’s statement over Stolk’s that he never attended the subsequent
meeting about the Chemistry budget. Stokes found this to be one of multiple instances in
which Stolk was unreceptive to attending scheduled meetings or non-compliant with making
arrangements to meet. She found that Stolk failed to notify the District of his absences during
the windstorm and failed to follow Tovares’s directive to schedule a meeting over those
absences. She also found that Stolk’s failure to attend the Vice President’s meeting to be
insubordinate and believed that Stolk could have attended if he planned his work schedule
more effectively.
22

Regarding the Chemistry 102 lab, Stokes credited Jones’s written statements that it
would have only taken Stolk one hour to set up the lab in question, rather than three hours, as
Stolk contended. She did not take steps to verify whether Heredia supported Stolk’s account
of this incident.
Stokes informed Stolk of her determination in writing on June 23, 2015. On June 24,
2015, Stolk submitted his written request to appeal that determination, under CBA Article
14.10. Neither party presented evidence about the results of this appeal.
The Five-Day Suspension
Stolk served the unpaid suspension during the District’s summer session term in July
2015. He resumed working for the District afterwards. On September 9, 2016, Stolk elected to
retire through the early retirement incentive offered by the District to employees at the time.
His retirement became effective on December 31, 2016.
ISSUES
1. 	Did the District suspend Stolk because of EERA-protected activities?
2. 	Should PERB consider Stolk’s unalleged violations? If so, was there any violation?
CONCLUSIONS OF LAW
1. 	Stolk’s Retaliation Claim
To demonstrate that a public school employer discriminated or retaliated against an
employee in violation of EERA section 3543.5, subdivision (a), the charging party must show
that: (a) the employee exercised rights under EERA; (b) the employer had knowledge of the
exercise of those rights; (c) the employer took adverse action against the employee; and (d) the
employer took the action because of the exercise of those rights. (Novato Unified School
District (1982) PERB Decision No. 210 (Novato USD), pp. 6-8.) If the charging party satisfies
23

all the elements of the prima facie case, the burden shifts to the respondent to prove by a
preponderance of the evidence that it would have taken the same course of action even if the
charging party did not engage in protected activity. (Cabrillo Community College District
(2015) PERB Decision No. 2453, p. 12, citing Martori Bros. Dist. v. Agricultural Labor
Relations Board (1982) 29 Cal.3d 721 (Martori Bros.), Trustees of the California State
University (2000) PERB Decision No. 1409-H; Novato USD.)
a. 	Stolk’s Protected Activities
The PERB complaint alleges that Stolk engaged in protected activity by refusing to
procure and/or provide hydrofluoric acid to faculty member Jones for a Chemistry lab
demonstration. EERA section 3543 protects individuals’ right self-representation, including
the right to present complaints to the employer about unsafe working conditions. (Garden
Grove Unified School District (2009) PERB Decision No. 2086 (Garden Grove USD);
Los Angeles Unified School District (1995) PERB Decision No. 1129, proposed dec., p. 8.)
EERA similarly protects employees’ right to report safety matters in a manner
consistent with procedures negotiated with the exclusive representative. (Oakdale Union
Elementary School District (1998) PERB Decision No. 1246, p. 18.) In Pleasant Valley
School District (1988) PERB Decision No. 708 (Pleasant Valley SD), the Board found that
“[s]afety matters are clearly an implicit part of any employment relationship.” (Id. at p. 15.)
In that case, a groundskeeper reported to his supervisor that it was unsafe to drive a riding
mower between non-adjacent schools sites because the mower should not be operated on
public streets. The supervisor later directed the groundskeeper to drive the mower to a site
more than a mile away. The groundskeeper refused, and complained to his union. (Id. at pp.
3-4.) The Board found the groundskeeper’s actions were a reasonable way to report safety
24

issues in his work assignment and were consistent with the complaint process in the CBA. (Id.
at p. 15.)
In this case, the PERB complaint alleges that Stolk refused to procure hydrofluoric acid
for a faculty member sometime in or around 2014. The record shows that discussions about
this substance began sometime during the Fall 2013 semester. During those discussions, Stolk
described his safety concerns with handling hydrofluoric acid with both faculty member Jones
and Dean of Instruction Tovares. He described its hazardous properties and the lack of proper
safety equipment in the Chemistry department. Stolk reiterated those safety concerns at least
twice in 2014, i.e., in Stolk’s January 24, 2014 response to the 2014 Written Reprimand, and in
Stolk’s June 16, 2014 response to the Notice of Intended Disciplinary Action.
CBA Article 19, specifies that unit members are required to advise the District
immediately of any unsafe working conditions at a school site. Tovares explained that
employees comply with that procedure by raising safety concerns with either a faculty member
or with his office. As in Pleasant Valley SD, supra, PERB Decision No. 708, Stolk acted
consistently with CBA policy by mentioning his safety complaint to Jones, the faculty member
seeking to use the substance, and Tovares, Stolk’s direct supervisor. The District disputes that
Stolk and Tovares ever discussed the substance, but this position is contradicted by the record.
Stolk testified that the meeting occurred. While Tovares did not recall a meeting specifically
to discuss hydrofluoric acid with Stolk, he did recall Jones reporting Stolk’s position to him
and also recalled Stolk expressing that the substance was unsafe. For these reasons, the
District’s position is rejected.
The District also claims that complaints about hydrofluoric acid unprotected under
EERA because the concerns over substance is unrelated to employee relations. However, the
25

District produced no evidence disputing Stolk’s extensive evidence about the dangers of
hydrofluoric acid and its ability to damage human skin, muscle, and organ tissue. Stolk also
produced unrebutted evidence that the San Jacinto Chemistry department lacks the proper
safety station to abate the effects of unintentional human contact with hydrofluoric acid.
Stolk’s expressed concerns pertain directly to the working conditions of those employees who
work in or around the chemistry lab. Therefore, I conclude that Stolk’s expressed concerns
about Jones using hydrofluoric acid in the lab are protected.
The PERB complaint also alleges that Stolk engaged in protected activity on or around
January 13, 2015, by requesting a hearing to address the District’s then-proposed two-step
demotion. Using dispute resolution procedures contained in a collectively bargained
agreement constitutes protected activity under EERA. This includes both grievances under the
formally negotiated grievance procedure (Scotts Valley Union Elementary School District
(1994) PERB Decision No. 1052 (Scotts Valley UESD), proposed dec., p. 17), as well as
complaints filed under other collectively bargained dispute resolution mechanisms. (Jurupa
Unified School District (2012) PERB Decision No. 2283, p. 16.) On the other hand, individual
complaints filed under an internal employer policy bear no apparent relationship to concerted
action and do not qualify for protected status. (Regents of the University of California (1991)
PERB Decision No. 872-H, proposed dec., p. 24.) Likewise, in Rocklin Unified School
District (2014) PERB Decision No. 2376, the Board gave “some credence” to the employer’s
argument that mere attendance at a layoff hearing, prescribed for exclusively through the
Education Code, was not protected under EERA. (Id. at pp. 4-5.)
26

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In this case, the District and CSEA have negotiated discipline procedures for classified
unit members, including Instructional Aides, into their CBA.12 Section 14.5, defines unit
members’ right to appeal proposed discipline before the District’s governing board. By
invoking this process, Stolk requested to participate in a negotiated procedure for addressing
disciplinary disputes. The District disputes that Stolk ever made a request for hearing, stating
there is “no direct evidence” of such a request. Although it is true that the record does not
clearly specify when Stolk made this request, Stolk testified that he rejected the voluntary
suspension agreement under consideration on or around December 30, 2014, and instead
elected to proceed with his appeal of the then-proposed demotion.13 In addition, the April 16,
2015 Suspension Notice specifically references the fact that Stolk had requested a hearing
before the governing board. Vice President of HR Horsley authored that notice.14
12 CBA Article 14.1 defines “discipline” as termination, involuntary demotion
(excluding a layoff), and an unpaid suspension for more than five days.
13 The District points out that Stolk testified that he rejected the settlement agreement
and requested to go forward with the Skelly process, not the disciplinary appeal hearing
process. I consider this to be merely a matter of semantics. Stolk had already completed the
Skelly process around five months earlier. At that point, the only remaining means to
challenge his discipline was through the hearing process under CBA Article 14.5, and AP
7365. Moreover, Stolk’s statement that he wished to “testify” in his defense likely refers to his
intent to participate as a witness in an evidentiary hearing, not to meet with a Skelly officer
under the District’s process. I find it more likely than not that Stolk was referring to his
appeal, but simply used a different term.
14 The content of the April 16, 2015 letter is hearsay. Under PERB Regulation 32176,
hearsay evidence is admissible in PERB proceedings, “but shall not be sufficient in itself to
support a finding unless it would be admissible over objection in civil actions.” PERB has
interpreted this regulation to mean that hearsay evidence admitted into the record cannot form
the sole basis for a factual finding absent an exception to the hearsay rule. (Palo Verde Unified
School District (2013) PERB Decision No. 2337 (Palo Verde USD), pp. 19-20; County of
Riverside (2009) PERB Decision No. 2090-M, p. 12, fn. 9.) Horsley acting as the head of the
District’s HR office at the time he wrote the letter. As such, the statements in the letter qualify
under the party admissions exception to the hearsay rule. (Evid. Code, § 1220; see also
Bellflower Unified School District (2014) PERB Decision No. 2385 (Bellflower USD), pp. 10-
27

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Accordingly, I conclude that Stolk did in fact request a District board hearing over the then-
proposed demotion and that doing so was protected activity.
b. 	The District’s Knowledge of Stolk’s Protected Activities
Stolk must also show that relevant individuals at the District were aware of his
protected activities. This element is met where the evidence shows that “individual(s) who
made the ultimate decision to take adverse action against the employee” knew of the
employee’s protected acts. (Sacramento City Unified School District (2010) PERB Decision
No. 2129, p. 7.) Applying this standard here, this proposed decision will consider the extent to
which the individuals primarily involved in the adverse actions here knew of Stolk’s protected
acts. This includes: (1) Tovares, who drafted the Notice of Intended Disciplinary Action,
which later became part of the basis for the suspension; (2) Horsley, who drafted the
Suspension Notice; and (3) Stokes, then-Interim Dean of HR, who served as the Skelly officer
for the suspension.
All three of these individuals knew that Stolk raised safety issues concerning
hydrofluoric acid. As already explained above, Tovares admitted to hearing about Stolk’s
safety concerns both from Jones and from Stolk himself during the Fall 2013 semester.
Tovares also acknowledged reading Stolk’s responses to both the January 2014 Written
Reprimand and the June 2014 Notice of Intended Disciplinary Action. Both responses
reference Stolk’s safety concerns. Horsley and Stokes likewise acknowledge reviewing written
statements from Stolk referencing his safety concerns.
Less evidence was offered about whether the people responsible for the discipline at
issue here knew about Stolk’s request for a hearing during the time that the District was
11; Gonzales Union High School District (1993) PERB Decision No. 1006, proposed dec., p.
15.)
28

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considering demoting Stolk by two levels. Tovares said he was not formally involved with the
District’s discipline proceedings against Stolk after drafting the June 2014 Notice of Intended
Disciplinary Action. This was well-before Stolk requested an appeal to challenge the proposed
demotion.15
Horsley became involved in the issue of Stolk’s discipline sometime in January 2015.
As stated above, Horsley testified that he did not recall whether he knew about Stolk’s hearing
request. But, because the April 2015 Suspension Notice he authored explicitly references
Stolk’s hearing request, I find this to be a sufficient basis for concluding that Horsley was
aware of that request. Stokes also acknowledges reviewing the Suspension Notice in her role
as Skelly officer. This is sufficient to establish their knowledge of Stolk’s hearing request.
c. 	Adverse Employment Actions
PERB uses objective measures to determine whether an adverse employment action
occurred. The issue is “whether a reasonable person under the same circumstances would
consider the action to have an adverse impact on the employee’s employment.” (Newark
Unified School District (1991) PERB Decision No. 864, pp. 11-12; Palo Verde Unified School
District (1988) PERB Decision No. 689, pp. 7-8. 12.) Formal discipline is clearly adverse to
employment. (See Fallbrook Union Elementary School District (2011) PERB Decision
No. 2171, p. 8.) Along those lines, both the unequivocal notice of the intent to pursue
discipline, such as a suspension, and the final notice of discipline constitute adverse actions.
(Monterey Peninsula Unified School District (2014) PERB Decision No. 2381, pp. 34-35; see
also EERA, § 3543.5, subd. (a); Los Angeles County Superior Court (2008) PERB Decision
15 There was some evidence that Tovares was involved in some discussions about a
voluntary suspension in lieu of the demotion sometime in Fall 2014. There was also evidence
that Horsley spoke to Tovares before issuing the April 2015 Suspension Notice. Neither fact
demonstrates that Tovares knew of Stolk’s appeal request.
29

No. 1979-C (LA Superior Court), p. 18, citing County of Merced (2008) PERB Decision
No. 1975-M, Regents of the University of California (1983) PERB Decision No. 310-H.) In
this case, the PERB complaint alleges that both the April 16, 2015 Suspension Notice and the
District’s decision to actually administer Stolk’s five-day suspension were adverse
employment actions. Although suspensions of five days or less do not fit the definition of
“discipline” under the CBA, it is undisputed that Stolk was not was not paid for the equivalent
of five working days and record of the suspension is maintained in Stolk’s personnel file. A
reasonable person consider this adverse to employment. The District does not dispute this
conclusion.
d. 	Circumstantial Evidence of a Retaliatory Motive
The final element of a prima facie case is whether there is a causal connection, or
nexus, between the charging party’s protected activity and the respondent’s adverse action.
The existence or absence of nexus is usually established circumstantially after considering the
record as a whole. (San Bernardino City Unified School District (2012) PERB Decision
No. 2278, warning ltr., p. 3, fn. 2, citing Moreland Elementary School District (1982) PERB
Decision No. 227 (Moreland ESD).)
i. 	Timing as Evidence of Motive
Temporal closeness between the charging party’s protected activity and the employer’s
adverse actions is typically an important circumstantial factor to consider in proving or
disproving nexus. (North Sacramento School District (1982) PERB Decision No. 264,
proposed dec., p. 23) PERB has held that “[t]iming is important in an unlawful motivation
inquiry to the extent that it shows that [the respondent] responded to protected activity by
30

initiating [a] negative personnel action against the [charging party].” (State of California
(Department of Social Services) (2000) PERB Decision No. 1413-S, proposed dec., p. 11.)
In this case, the District contends that the timing of events does not support Stolk’s
prima facie case, because Stolk first raised his safety concerns in Fall 2013 and the District did
not issue the Suspension Notice until April 2015. The actual suspension occurred in July 2015.
Generally speaking, this separation of time between the protected activity and the adverse
actions is not indicative of a causal connection. (See e.g., Jurupa Unified School District
(2015) PERB Decision No. 2450 (Jurupa USD), proposed dec., p. 25; Los Angeles Unified
School District (1998) PERB Decision No. 1300, dismissal ltr., p. 1.) However, in this case,
Stolk’s conversations with Jones and Tovares were only the first instance in which he raised
his safety concerns with the District. As the PERB complaint suggests, Stolk reiterated his
concerns multiple times in 2014. And, while it is true that the District did not begin Stolk’s
suspension proceedings until April 2015, there is no dispute that the District contemplated
some form of discipline for Stolk as early as June 2014, when Tovares first drafted the Notice
of Intended Disciplinary Action. This was roughly five months from when Stolk reasserted the
hazards of hydrofluoric acid in his January 24, 2014 response to earlier discipline. Between
June 2014 and April 2015, there was no evidence that the District ever equivocated on its
desire to subject Stolk to some form of corrective action. To the contrary, the District
proceeded with its disciplinary process for the then-contemplated demotion from June through
August 2014. Afterwards, the District and CSEA participated in negotiations where Stolk
would serve an unpaid suspension in lieu of demotion if he admitted to engaging in
misconduct. It was only after those negotiations fell through, around December 2014 or
January 2015, that the District proceeded with the Suspension Notice. Based on this sequence
31

of events, I conclude that the timing of the District’s actions in relation to Stolk’s safety
complaints provides some support for Stolk’s retaliation claim.
Stolk initially requested a hearing over the Notice of Intended Disciplinary Action
sometime after the 2014 Skelly meeting, about the then-proposed demotion. Then, the parties
engaged in settlement discussions until around December 2014, when Stolk rejected the
District’s offer and voiced his desire to proceed with the hearing. The District issued the
Suspension Notice around three months later. The timing between these two events supports
Stolk’s case that the District possessed an unlawful motive. (Escondido Union Elementary
School District (2009) PERB Decision No. 2019, p. 28, citing Mountain Empire Unified
School District (1998) PERB Decision No. 1298.) The timing of these two events is
particularly interesting because the District's decision to pursue a five-day suspension instead
of a demotion, eliminated Stolk's right to have an evidentiary hearing.
The District argues that the timing of Stolk’s hearing request does not support his case
because the Suspension Notice was based on Tovares’s June 2014 Notice of Intended
Disciplinary Action, which pre-dates Stolk’s hearing request. The District cites to cases where
PERB found no causal connection between protected activities and adverse employment
decisions that pre-dated those activities. (See e.g., Peralta Community College District (2003)
PERB Decision No. 1576, p. 9.) The District’s position misconstrues the nature of PERB’s
inquiry. The issue is not whether the factual basis behind the Suspension Notice preceded the
protected activity. Rather, the pertinent question is whether the respondent decided to take the
adverse action identified in the complaint before or after the protected act. (See Id.; see also
Grossmont Union High School District (2010) PERB Decision No. 2126, proposed dec., p. 6.)
Here, the April 2015 Suspension Notice clearly post-dates Stolk’s January 2015 hearing
32

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request. Moreover, in Regents of the University of California (UC Davis Medical Center)
(2013) PERB Decision No. 2314-H, the Board held that:
Where there has been a substantial change in the adverse action,
as here, the temporal relationship between the relevant events
changes. [citations] In such an instance, the protected activity
will be found to have preceded the adverse action, thus
establishing the correct temporal relationship for retaliation
purposes.
(Id. at p. 11.)16
Applying that logic here, even though the District began disciplinary proceedings
against Stolk in June 2014, the discipline contemplated at the time was a two-step demotion.
After Stolk requested a hearing to challenge the planned demotion, the District changed the
nature of the contemplated discipline to a five-day suspension which, perhaps conveniently,
does not include a right to challenge through hearing under the CBA. Accordingly, the
District’s argument is unpersuasive.
Stolk makes numerous other arguments that there is ample circumstantial evidence of
the District’s motives here. Those arguments are highlighted below.
16 In UC Davis Medical Center, supra, PERB Decision No. 2314-H, the employer
originally proposed involuntarily assigning an employee to an adverse shift assignment. After
the employee stated his intent to seek union assistance on the matter, the employer assigned
him to the adverse shift and added other adverse aspects to the assignment as well. The Board
found that his statement of intent to seek union assistance was protected and occurred before
the ultimate decision regarding the assignment was made. (Id. at pp. 11-12.)
33

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ii. 	Departure From Established Procedures
PERB has found that it may infer unlawful motive from a respondent’s departure from
existing practices in its dealings with the charging party. (Garden Grove USD, supra, PERB
Decision No. 2086, dismissal ltr., p. 4.) To establish such an inference, the charging party
must typically demonstrate what the respondent’s practice is and how the respondent deviated
from that practice. (Ibid.; see also Los Angeles Unified School District (2014) PERB Decision
No. 2390 (LAUSD), pp. 11-12, proposed dec., p. 16.)
In this case, Stolk asserts that the District reduced its planned discipline from a two-
step demotion to a five-day suspension, thereby removing Stolk’s right to have a hearing
before the District’s governing Board. According to Stolk, the District’s actions departed from
the established disciplinary procedures contained in AP 7365 and CBA Article 14.5. However,
the right to a hearing under both policies attaches when the District takes action to terminate,
demote, or suspend a classified employee for more than five days. Neither procedure
addresses the right to a hearing to appeal a five-day suspension, which is the adverse action in
question in this case. Neither policy precludes the District from reducing earlier contemplated
discipline against an employee particularly where, as here, the District had to replace its Vice
President of HR four times before the end of the disciplinary process. Therefore, Stolk has
failed to meet his burden of proving that the District’s conduct departed from the procedures
set forth in AP 7365 or CBA Article 14.5.17
17 Stolk also asserts that the District’s failure to provide him with a hearing violates his
rights to due process under the U.S. and State Constitutions. PERB lacks jurisdiction to
enforce constitutional due process rights. (Bakersfield City School District (1997) PERB
Decision No. 1191, dismissal, p. 3; Los Angeles Unified School District (1990) PERB Decision
No. 835, pp. 2-3.) Stolk, moreover, provided no factual or legal support for his assertion that
he has a constitutionally protected right to a hearing before the District’s governing board
under the facts of this case. Finally, even if the District’s disciplinary procedures were
34

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Stolk also asserts that the District acted inconsistently with CBA Article 2.3. Stated
briefly, this section requires the District and CSEA to discuss which contract provisions, if
any, should be suspended during an emergency. Stolk contends that the District failed to
undergo this procedure with CSEA before including events from the windstorm in Stolk’s
Suspension Notice. This assertion was not proven at hearing. No evidence was presented
about what steps the District did or did not take to comply with Article 2.3, or even whether
the District and CSEA concluded that negotiations under this section were necessary during the
windstorm. Therefore, this argument is unpersuasive.18
iii. 	Disparate Treatment
Stolk asserts that the District treated him differently from other employees involved
with overspending the Chemistry department supply budget. Evidence that the charging party
was treated differently from similarly situated employees may be evidence of nexus. (Lake
Elsinore Unified School District (2012) PERB Decision No. 2241, pp. 14-15.) Here, Stolk
contends that the District singled him out for discipline regarding the overage. Disparate
application of disciplinary procedures may support an inference of unlawful motive. (Regents
inconsistent with a protected constitutional right, it would not necessarily mean that the
District has acted inconsistently with its own established procedures.
18 Stolk also argues that the District departed from its evaluation procedures when
Tovares issued Stolk’s performance evaluation in October and November 2014. According to
Stolk, the Dean of Instruction typically consults with faculty members when assessing the
work performance of Instructional Aides. He argues that Tovares’s failure to do so in this
evaluation is evidence of a retaliatory motive. However, this evaluation occurred more than
six months after Tovares’s formal role in the discipline ended. In addition, the evaluation
described different events from those in the Suspension Notice. PERB has found that not all
departures from existing practices evidence an unlawful motive. (Regents of the University of
California (2012) PERB Decision No. 2302-H (UC Regents), proposed dec., p. 25, fn. 7
[holding that deviations in the evaluation procedures had no apparent bearing on the
employer’s disciplinary decisions]; see also Rio School District (2015) PERB Decision
No. 2449, proposed dec., pp. 31-32.)
35

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of the University of California (1998) PERB Decision No. 1263-H, proposed dec., pp. 55-57.)
Stolk’s argument was based on Purchase Request R4024632, which he contends became the
order that created the overage. Stolk concedes that he originated the request, but points out
that several other individuals, including Business Services Office employee Worthington,
Tovares, Instructional Office employee Perez-Flores, and faculty member Nance were also in
the approval chain for that request and were not disciplined. This argument fails for at least
three reasons. First, there is insufficient evidence in the record to conclude that request
R4024632 was the purchase request that created the budget overage. Stolk testified that he
made this request during the time he was accused of overspending the budget, but no witness
or other evidence verified that this request created or contributed to the overage. Stolk
produced some District e-mails referring to R4024632, but the content of those e-mails is
entirely uncorroborated hearsay. No witness testified about the substantive communications in
those e-mails and there was insufficient evidence to apply any exception to the hearsay rule. It
was not even clear that the document Stolk submitted as R4024632 is a District record. No
evidence was presented about how Stolk obtained it and no one from the District said they saw
the document before or any document like it.19 The dollar amount at issue in R4024632
($2,610.40), moreover, does not match the amount the District maintains was overspent
($3,828). So, although Tovares testified that neither he, nor Nance, nor Perez-Flores were
disciplined in connection with R4024632, his testimony does not necessarily establish that
those individuals were not disciplined in connection with the purchase that created the overage.
19 The content of this document is also hearsay. The document does not qualify under
the official records hearsay exception because Stolk did not demonstrate who authored it, when
it was created, for what purpose, or even whether it was maintained by the District at all.
(Evid. Code, § 1280; Bellflower USD, supra, PERB Decision No. 2385, pp. 9-11.)
36

Second, even if Stolk established that Purchase Request R4024632 was the one that
created the overage, no evidence was presented about whether Worthington was disciplined for
her role in the transaction. Thus, it remains unclear if Stolk was treated differently from all
other employees named in that purchase request.
Third, Stolk’s argument assumes without evidence that the other named individuals
have some responsibility over managing department budgets. He presented no evidence
challenging the District’s assertion that the Instructional Aide III position is primarily
responsible for monitoring the San Jacinto campus Chemistry supply budget. Tovares said that
he uses the system review to what purchases are made, where they originate, and where they
will go. He said that he expects the Instructional Aide III to ensure that the department has
sufficient funds for the purchase. There was no witness testimony or other evidence
establishing what role the other individuals have in the approval process. Thus, it remains
unclear whether any of these individuals should be subject to discipline for budget overages.
For all these reasons, Stolk has not demonstrated that he was treated differently from other
similarly situated employees.
iv. 	Cursory Investigation
Stolk contends that the District failed to undertake an adequate investigation before
either issuing the Suspension Notice or following through with the actual suspension. An
employer’s inadequate or cursory investigation prior to taking disciplinary action may be
evidence that the discipline was unlawfully motivated. (Jurupa USD, supra, PERB Decision
No. 2450, p. 17, citing City of Torrance (2008) PERB Decision No. 1971-M; Coast
Community College District (2003) PERB Decision No. 1560 (Coast CCD).) In Jurupa USD,
the Board found an HR representative’s investigatory interview process suspicious because she
37

interviewed students who had complaints against the charging party, and declined to interview
those who had positive things to say. The Board concluded that this suggested an inordinate
focus on corroborating the employer’s charges, as opposed to an impartial examination into the
underlying events. (Id. at p. 23, proposed dec., p, 31.) In contrast, in City of Santa Monica
(2011) PERB Decision No. 2211-M, the Board found no evidence of any retaliatory motive in
an employer’s decision not to interview an employee before releasing him from probation for
workplace misconduct. In that case, the employer had a video recording of the misconduct and
there was no evidence that the employer had a practice of conducting interviews before
releasing employees from probation. (Id. at p. 15.)
In this case, Stolk maintains that the District failed to contact individuals who might
refute claims in the charges. I agree. On May 12, 2014, Tovares e-mailed Stolk accusing him
of failing to set up the proper lab experiment for faculty member Jones’s Chemistry 102 class
and demanding that he do so. Stolk responded, stating that Jones instructed him not to prepare
that lab that day. Stolk also mentioned that there was a witness who could verify this.
However, Tovares took no steps to verify Stolk’s account or identify Stolk’s witness before
including this incident in the Notice of Intended Disciplinary Action. Stolk raised this issue
again with Stokes during the Skelly meeting over the Suspension Notice. He informed her that
Instructional Aide Heredia could corroborate his account. Yet, Stokes did not contact Heredia
for her version of this event and instead concluded that these charges were true based only
Jones’s written statements.
Stokes also looked into whether Stolk attended the May 7, 2014 budget meeting, as
directed to by Tovares. According to Stokes, Stolk claimed that he attended the meeting, but
Perez-Flores said he did not. Stokes said she credited Perez-Flores’s account over Stolk’s and
38

concluded that he did not attend. But Stokes could have easily resolved these conflicting
accounts by asking Tovares, who she had already spoken to in connection with other parts of
her review. Tovares would have confirmed that Stolk did attend. As in Jurupa USD, supra,
PERB Decision No. 2450, Stokes’s failure to do so is some evidence that the District was
predisposed to disbelieve Stolk even when there may have been support for his assertions.
Stolk also contends that both Horsley, who drafted the Suspension Notice, and Stokes
failed to review Stolk’s responses to discipline taken against him, including Stolk’s January 24,
2014 response to the Written Reprimand, and Stolk’s June 16, 2014, response to the Notice of
Intended Disciplinary Action. With respect to Stokes, Stolk misstates the record. Stokes
testified that she did not review any documentation other than the Suspension Notice before
the Skelly meeting. Afterwards, Stokes said that she reviewed Stolk’s personnel file, including
both disciplinary documents and any responses he submitted for the file as well. Although she
testified that she could not recall all of the specific documents that she reviewed, I find this to
be insufficient evidence that she conducted an inadequate review.
Horsley also said he reviewed existing disciplinary documents and Stolk’s responses to
those documents. He specifically recalled seeing Stolk’s June 16, 2014 response to the Notice
of Intended Disciplinary Action, but did not recall whether he also reviewed Stolk’s January
24, 2014 response to the Written Reprimand. I conclude that these facts do not establish, as
Stolk contends, that Horsley “completely ignored” this response. Because Horsley based the
charges in the Suspension Notice on conduct that post-dated the Written Reprimand, I do not
find it unusual that Horsley would lack specific recall of that document. For the same reason, I
also find, if Horsley in fact did not review this response, it would not demonstrate any
significant failure to investigate the charges in the Suspension Notice.
39

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Stolk also asserts that neither Horsley nor Stokes reviewed the attachments to Dr.
Vasek’s March 2015 e-mail, with the subject line “Risk of Lethal Exposure to Toxic
Chemicals” sent to all District employees. According to Stolk, this is further evidence of an
inadequate investigation. However, Vasek’s original e-mail does not mention either Stolk or
hydrofluoric acid.20 Nor was it clear that Vasek was speaking on behalf of Stolk or with
Stolk’s approval. There was no evidence that Stolk himself asked anyone at the District to
review those e-mails as part of the District’s investigation. Under these facts, I find it more
likely than not that Horsley and Stokes did not associate Vasek’s e-mail with the District’s
disciplinary proceedings against Stolk. For that reason, I decline to infer any retaliatory
motive from their failure to review Vasek’s attachments.
Stolk also faults Stokes for not speaking with Gibbons who, according to Stolk, has
expertise in the field of chemistry and could have also provided her experience with the Galaxy
system. At hearing, Gibbons described a 2015 instance where she initiated a purchase that
exceeded her budget and did not receive an insufficient funds pop-up message.21 However,
there was no showing that Stolk ever informed Stokes that Gibbons had any insight into the
Galaxy system or the factual basis for any of the charges in the Suspension Notice. Nor was
there any evidence that Stokes should have reasonably come to that conclusion on her own.
Therefore, I decline to find this is additional support for Stolk’s retaliation claim.
20 Subsequent e-mails by Vasek and other employees do reference hydrofluoric acid
and the attachments to Vasek’s original e-mail references both Stolk and hydrofluoric acid.
21 It is worth noting that Gibbons testified that immediately after discovering the
problem, she contacted Tovares and took other steps to secure the funding for the purchase
without creating an overage. There was no evidence that Stolk took similar steps.
40

v. 	Inconsistent Justifications
Stolk also asserts that the District gave conflicting statements about Stolk’s conduct and
the District’s response and these shifting positions suggest that Stolk’s discipline was
retaliatory. An employer’s inconsistent and/or contradictory explanation for taking adverse
employment actions against a charging party may be evidence that those actions were taken for
unlawful reasons. (Livingston Union School District (1992) PERB Decision No. 965, p. 4,
proposed dec., p. 30.) However, it does not necessarily follow that an employer’s
inconsistency on other matters demonstrates a retaliatory motive. Here, Stolk points to several
inconsistencies in the record. First, Stolk contends that Tovares initially denied meeting with
Stolk over the hydrofluoric acid incident, only to later admit that the meeting occurred during
cross-examination. This contention misstates Tovares’s testimony. On direct examination, the
District’s counsel asked Tovares whether he and Stolk ever had a meeting “specifically about
Mr. Stolk not ordering hydrofluoric acid.” Tovares responded “No.” On cross-examination,
Tovares testified that he recalled having some kind of discussion with Stolk about the
substance during one of Tovares’s visits to the Chemistry department and that Stolk expressed
reluctance in ordering the acid because of its dangerous properties and because alternatives
were available. This does not necessarily conflict with what Tovares said on direct-
examination because it remains possible that he and Stolk discussed hydrofluoric acid outside
the context of what Tovares considered to be a formal meeting. Moreover, because the
discussions about this substance occurred sometime during the Fall 2013 semester, it is not
41

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surprising that Tovares would have some variance in his testimony at PERB almost four years
later.22 Therefore, I find this argument to be unpersuasive.
Stolk also maintains that it is inconsistent for the District to claim that faculty, not
Instructional Aides, have the final say in the substances used in labs, and also hold the
Instructional Aide III position responsible for ordering lab materials and maintaining the
supply budget. However, Stolk has not demonstrated that a substantial conflict exists here as it
pertains to Stolk’s five-day suspension. According to Tovares, Stolk could have expressed any
legitimate concerns over the cost of a particular substance or experiment in a more
collaborative fashion, such as by explaining the effect of a requested purchase on the overall
department budget, or suggesting ways to absorb the cost of the purchase through other
savings. Furthermore, there was no evidence that any faculty member ever requested Stolk to
make a purchase that exceeded the Chemistry department supply budget. Accordingly, I find
this argument to be unpersuasive.
Stolk also asserts that it was inconsistent for District representatives to reject Stolk’s
assertion that the Chemistry supply budget overage was caused by a glitch in the Galaxy
software system. According to Stolk, Tovares knew of the software glitch at the time he
drafted the June 2014 Notice of Intended Disciplinary Action, because by that time, Tovares
had approved of Purchase Request R4024632, and had participated in e-mails about that
request. Stolk points out that nothing on R4024632 indicates that there was an “insufficient
funds” message on the request. This claim is unsupported by the record. As already explained
above, Stolk did not establish that R4024632 was the request that caused the overage. The
document was also hearsay. In addition, there was no evidence that an “insufficient funds”
22 Even Stolk himself could not recall when his discussion with Tovares about
hydrofluoric acid occurred with any precision.
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message should have been displayed on the request. And, on top of that, Tovares credibly
testified that the purchase requests he sees are not formatted in the same way as the version of
R4024632 Stolk submitted into the record. Neither party explored what information is
available on the purchase requests that are available to Tovares. For these myriad reasons,
there is insufficient evidence to support Stolk’s argument.23
Though not raised specifically by either party, I find one inconsistency with the
District’s handling of Stolk’s suspension to be cause for suspicion. The April 2015 Suspension
Notice accuses Stolk of being absent without justification during the windstorm on May 1,
2014. But, on May 12, 2014, Tovares had approved Stolk’s request to use vacation time that
day. The Suspension Notice is also inconsistent with the June 2014 Notice of Intended
Disciplinary Action Tovares drafted on this issue. Tovares accused Stolk of failing to properly
communicate with him about his absence that day, but did not specifically contend that Stolk’s
use of vacation time on May 1 was improper. The District offered no explanation for this
inconsistency. I find that this provides some support for the assertion that the District had an
ulterior motive for the suspension.
vi. 	Vague Claims in the Charges
Stolk also asserts that that the District justified its disciplinary actions against him using
ambiguous terms. An employer’s vague or ambiguous reasons for taking the adverse action
may give rise to the inference that the action was unlawfully motivated. (Baker Valley Unified
School District (2008) PERB Decision No. 1993 (Baker Valley USD), p. 10, citing McFarland
Unified School District (1990) PERB Decision No. 786.) However, to support such an
23 Stolk also contends that Tovares inaccurately claimed that only one person is
involved in approving purchases under the Galaxy system. This contention is inconsistent with
the record.
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inference, the reasons provided “must be essentially meaningless to the employee under the
circumstances.” (Id., citing Los Angeles Unified School District (2003) PERB Decision
No. 1532, Novato USD, supra, PERB Decision No. 210; Keller Ford (2001) 336 NLRB 722;
Sam Tanksley Trucking, Inc. (1972) 198 NLRB 312.)
In this case, Stolk argues that the District suspended Stolk based on vague claims.
Stolk asserts that both the January 15, 2014 Written Reprimand and the June 16, 2014 Notice
of Intended Disciplinary Action are full of vague claims such as that Stolk was rude,
insubordinate, failed to order supplies, and had communication problems. Stolk argues that
these accusations lack specificity. Stolk also claims that Tovares described Stolk’s conduct
using vague language, such as using “safety as a cudgel” to get his way in the lab.24 According
to Stolk, these accusations are so vague that they support his retaliation claim.
It should be noted none of the seven charges in the Suspension Notice were based on
any of these comments. Even if that were not the case, Stolk has not shown that any of these
assertions by the District were so vague that they were meaningless to Stolk under the
circumstances. Stolk should have reasonably understood that comments relating to his rude
demeanor and lack of cooperation refer primarily to his interactions with Instructional Aide
Hayashibara, and faculty member Jones. Stolk demonstrated this understanding through his
responses to Tovares’s disciplinary documents as well as during the Skelly meeting with
Stokes. There was no evidence that Stolk expressed confusion about the specificity in any of
these claims. In addition, Tovares provided unrebutted testimony that he had previously
counseled Stolk about his uncooperative interactions with others. It is likewise reasonably
clear that comments about Stolk’s alleged lack of communication refer to failure to
24 That comment was made in Tovares’s October-November 2014 performance
evaluation of Stolk, which post-dates Tovares’s role in Stolk’s discipline.
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communicate his absence to administration and his failure or reluctance to schedule meetings
with Tovares. Tovares’s reference to using safety as a “cudgel” reasonably refers to Tovares’s
belief that Stolk purposefully sought to avoid direction and accountability from others.25
Whereas Stolk may strongly disagree with all of these assertions, I decline to find that the
District’s claims were so vague that they were meaningless to Stolk under the circumstances.
Stolk claims that the District exaggerated one of its charges against him by describing
the April 4, 2014 Instructional Aides meeting “mandatory” in the Notice of Intended
Disciplinary Action. However, Stolk failed to establish that the meeting was not, in fact,
mandatory. Moreover, the Suspension Notice at issue in this case does not describe that
meeting as “mandatory.” Therefore, this argument is unpersuasive.
vii. 	Conclusion
In summary, Stolk has presented sufficient circumstantial evidence that the District’s
adverse actions were unlawfully motived. The timing between Stolk’s protected activities and
the District’s adverse actions supports his retaliation claim as does the District’s suspicious
investigation and its inconsistent treatment of Stolk’s May 1, 2014 absence. Even though I
found Stolk’s other unlawful motive arguments unpersuasive, I conclude that he has
nevertheless established a prima facie case for retaliation.
e. 	The District’s Justification
The District now bears the burden of proving that it would have taken the same actions
against Stolk even if he did not engage in any protected activity. (See Chula Vista Elementary
School District (2011) PERB Decision No. 2221 (Chula Vista ESD), p. 21, citing Novato USD,
25 Under some circumstances, an employer’s hostile comments towards protected
activity might create demonstrate animosity towards such activity (see Jurupa USD, supra,
PERB Decision No. 2450, pp. 18-19), but I decline to make that inference here. Tovares
preceded this comment by stating that safety is an important concern.
45

supra, PERB Decision No. 210; Martori Bros., supra, 29 Cal.3d 721.) In cases where an
adverse action appears to have been motivated by both protected and unprotected conduct, the
issue is whether the adverse action would have occurred “but for” the protected acts. (LA
Superior Court, supra, PERB Decision No. 1979-C, p. 22.) This requires the employer to
establish both:
(1) that it had an alternative non-discriminatory reason for the
challenged action; and (2) that it acted because of this alternative
non-discriminatory reason and not because of the employee’s
protected activity.
(Palo Verde USD, supra, PERB Decision No. 2337, pp. 18-19, citations omitted; see also
County of Orange (2013) PERB Decision No. 2350-M, p. 16.)
The Board applied this standard in California State University, Long Beach (1987)
PERB Decision No. 641-H (CSULB). There, an employee frequently insisted on revising her
relationship with her supervisor to obtain more autonomy. She also disagreed with priorities
set by her superiors on matters such as preparing detailed statistical reports and conducting
recruitments at local community colleges. As a result, the employee did not perform those
duties to the satisfaction of her superiors. (Id. at proposed dec., pp. 52-54.) PERB found that
it was more likely than not that the employer’s adverse actions were motivated by
management’s desire to conduct its programs according to its own judgments and preferences,
and that management was dissatisfied with the employee’s apparent resistance to accepting
direction and constructive criticism. (Id. at proposed dec., pp. 54-55.) Without deciding the
correctness of management’s assessment, PERB found that it was these concerns, and not the
employee’s protected activities, that motivated the adverse actions taken against her. (Ibid.)
In Coachella Valley Unified School District (2013) PERB Decision No. 2342, PERB
found that the employer was justified in taking adverse action against one of its teachers based
46

on well-documented concerns about the teacher’s failure to accept direction or meet his
supervisor’s expectations. PERB rejected the teacher’s argument that his supervisor lacked the
ability to understand the educational purpose behind his opposition to certain directives,
reasoning that it was the employer’s prerogative to determine the direction of its educational
programs. PERB concluded that the teacher’s unwillingness to abide by managerial directives
constituted a non-retaliatory reason for the adverse actions. (Id. at proposed dec., pp. 23-24.)
In Coast CCD, supra, PERB Decision No. 1560, an employee and his supervisor were
“constantly in adversarial mode,” over matters unrelated to protected activity. There was also
evidence that the employee had serious confrontations with both administrators and rank-and-
file employees. Although the employee was “a very capable instructor,” the employer was
justified in taking the adverse actions against him due to his inappropriate confrontations with
others and his failure to comply with the chain of command. (Id., at proposed dec., pp. 43-44;
see also Scotts Valley UESD, supra, PERB Decision No. 1052, proposed dec., pp. 24-25.)
In Baker Valley USD, supra, PERB Decision No. 1993, an employer stated that it
decided against renewing the employment of a probationary teacher “because of problems with
student engagement in the classroom.” (Id. at p. 13.) The Board found that explanation to be
pretext for retaliation because there was no commentary about problems in that teacher’s
performance evaluations and there was no record of any counseling or discipline in his
personnel file. (Id., citing Simi Valley Unified School District (2004) PERB Decision
No. 1714.) The Board concluded that the employer in that case failed to carry its burden of
proving that it would have made the same decision even if the teacher did not engage in any
union activity. (Id. at p. 14.) In Jurupa Community Services District (2007) PERB Decision
No. 1920-M, the Board similarly found pretext where the employer’s notice of termination
47

included trivial incidents such as slamming doors, technical violations of the employer’s sick
leave policy, and exaggerated statements of verbal abuse. (Id. at proposed dec., pp. 17-19.)
The employee in that case was also accused of altering his time card, but no witnesses testified
about that incident during the PERB hearing. (Id. at proposed dec., p. 19.) Under those
circumstances, the Board found that the employer did not meet its burden of proof and
concluded that the employee’s termination was retaliatory. (Id. at p. 4; see also Chula Vista
ESD, supra, PERB Decision No. 2221, at proposed dec., pp. 6-7.)
In the present case, Tovares explained that he felt that Stolk’s conduct demonstrated an
aversion towards collaborating with certain others in the Chemistry department and the Office
of Instruction. Tovares also believed that Stolk exhibited an unwillingness to be held
accountable or to act as support for faculty in academic matters. As in CSULB, supra, PERB
Decision No. 641-H, Tovares considered Stolk’s actions to be inconsistent with what he
thought an Instructional Aide’s role should be in the Chemistry department. Tovares detailed
some of his concerns in a counseling meeting with Stolk in 2012. He followed up with the
Written Reprimand in January 2014 after, in his opinion, Stolk continued to exhibit
problematic behaviors when interacting with certain colleagues. Then, in June 2014, Tovares
drafted the Notice of Intended Disciplinary Action, which details additional concerns about
Stolk’s willingness to collaborate with and support certain faculty and to hold himself
accountable to others. Many of those concerns were later detailed in the charges from the
April 2015 Suspension Notice.
Stolk devotes a considerable proportion of his closing brief responding directly to the
validity of the charges against him, and arguing that his actions were justified. For that reason,
this proposed decision will examine the reasoning behind the charges in the Suspension Notice.
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In doing so, however, it is important to recognize that PERB’s inquiry is not whether Stolk’s
discipline was just and proper. Rather, the issue here is whether Stolk’s protected activity was
the true motive behind the adverse actions. (UC Regents, supra, PERB Decision No. 2302-H,
p. 3, citations omitted.) Accordingly, PERB’s authority extends only to remedying those
decisions that were the product of retaliation and PERB is not empowered to resolve whether
those decisions were based on any number of other unlawful or unjustified reasons. (UC
Regents, p. 3, citing San Bernardino City Unified School District (2004) PERB Decision
No. 1602; Moreland ESD, supra, PERB Decision No. 227.) This proposed decision will
therefore not assess whether the suspension was just and proper. It will only consider the
extent to which the District’s justifications for the discipline were pretext for retaliation.26
i. 	The April 4, 2014 Instructional Aides Meeting
Stolk admits that he did not attend the April 4, 2014 science Instructional Aides
meeting called by Vice President Schwerdtfeger. Stolk asserts that his absence was justified
because he was assisting faculty member with setting up and conducting a lab experiment at
the time. Stolk also claims that this was a “no-harm/no-foul” scenario because the District
could have easily asked him to review any materials from the meeting on his own time
afterwards. These assertions might have been more persuasive had there been any showing
that Stolk tried to adjust his schedule or suggest an alternative to attending beforehand. There
was not even any evidence that Stolk notified anyone that he could not attend. Based on this
26 For example, Stolk argues that Tovares only included the budget overage allegations
in the Notice of Intended Disciplinary Action because he was embarrassed at having to seek
financial assistance from the Vice President of Instruction. Even if Stolk’s argument were
true, it would tend to show that Tovares’s actions were motivated by something other than
retaliation for EERA-protected activities. (See LAUSD, supra, PERB Decision No. 2390, p.
11.)
49

record, it is unsurprising that the District concluded that his absence was unjustified, and
insubordinate. I conclude that these were non-retaliatory reasons for suspending Stolk.
ii. 	The Chemistry Supply Budget Overage
Stolk also does not dispute initiating the purchase which resulted in the Chemistry
department exceeding its supply budget by roughly 25 percent. Stolk argues at length that the
Galaxy budget software malfunctioned and failed to notify him that his purchase request would
exceed the budget. However, even if that were true, it would not change the underlying facts
that Stolk, as an Instructional Aide III, was primarily responsible for monitoring the Chemistry
department budget and that he failed to detect the overage before it occurred. Stolk himself
emphasizes that he does his own meticulous bookkeeping, and he asserted as much to both
Tovares and to Stokes. Tovares, likewise, testified that he expects Instructional Aide IIIs to
maintain their own budget records as part of their responsibility over their respective
departmental budgets. Stolk not only failed to detect the overage beforehand, but he also failed
to report it afterwards. Then, when Tovares attempted to schedule a meeting with Stolk to
discuss the matter, Stolk does not dispute that he initially declined to attend. He once again
claims that this decision was justified because he was assisting a faculty member that day,
which he contends was more important than the meeting. Stolk points to Tovares’s general
testimony that there may be some occasions where an Instructional Aide’s duty in assisting
during a lab might be more important than a scheduled meeting. However, the meeting in
question took place at 4:00 p.m., after Stolk’s regular shift. Stolk was aware that the District
could have given him overtime or compensatory time off to attend the meeting. And yet, he
did not even mention these issues before rejecting Tovares’s request to attend. Stolk only
attended the meeting after being given a direct order from Tovares. Under the circumstances,
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the District considered Stolk’s behaviors to be non-cooperative, and an attempt to avoid
responsibility for the budget overage. I conclude that these were non-retaliatory reasons for
pursuing Stolk’s suspension.27
iii. 	Stolk’s April 30, 2014 Absence
The District also accused Stolk of leaving his post before his shift ended and without
notifying anyone during the windstorm that started on April 30, 2014. Stolk acknowledges
leaving, but defends this decision by stating that Tovares’s administrative assistant, Perez-
Flores entered the classroom Stolk and told everyone to leave due to the storm. Stolk also
points out that the District’s e-mail to staff “urged,” but did not require, staff on campus to stay
indoors until further notice. Stolk admitted to both Tovares and Stokes that he did not hear
Perez-Flores clearly and relied on others to explain what she had said. Setting aside the fact
that Perez-Flores does not control Stolk’s schedule and does not approve his leave requests, I
conclude that the District found it genuinely problematic that Stolk would leave during duty
time without seeking clarification first. And, regardless of whether the District’s e-mail
“urged” or required staff to stay on campus during the windstorm, it was reasonable for the
District to expect that Stolk to contact a supervisor before leaving his post during his shift.
The District presented evidence that other employees who sought to leave because of the storm
contacted their supervisors beforehand and received permission. Stolk offered no explanation
27 Stolk also presented evidence that District policy prioritizes faculty’s schedules over
classified staff regarding meetings. Stolk’s witness, Gibbons testified that she considered this
policy unwise because Instructional Aides have an important role in maintaining lab safety. In
this case, however, the meeting in question did not conflict with any of Stolk’s lab duties.
Setting that aside, even if the meeting was scheduled pursuant to a misguided policy which
wrongly deemphasizes Instructional Aides’ role in lab safety, this would still not tend to
support Stolk’s case. The issue here is whether the District engaged in retaliation for protected
activity; it is not a general assessment on the District’s scheduling policies.
51

for not doing the same, even though the record shows that he had access to e-mail that day and
actually e-mailed Tovares about another subject.
Stolk also suggests that the District “constructively approved” his absence based on
Tovares’s testimony that he directed a staff member to lock or secure doors on the San Jacinto
campus that day. According to Stolk, Tovares would not have given such an order unless he
already knew that all classrooms had been vacated. This argument ignores the possibility that
the District had other reasons for securing its facilities during the windstorm, such as
safeguarding equipment and protecting occupants sheltering inside. Furthermore, even if it
were true that Tovares knew that Stolk had left, it would not necessarily mean that Tovares
approved of Stolk’s absence.
Finally, Stolk contends that it was improper for the District to discipline him for his
absence that day because he had serious concerns about the damage the windstorm was causing
to his home and his personal vehicle. But, the District did not suspend Stolk out of
indifference to his property concerns. Rather, the Suspension Notice states that the discipline
was based on Stolk’s failure to provide notice or any justification whatsoever until he had
already taken the leave. And, coupled with the fact that there was no showing that Stolk's
concerns required him to leave without first proving notice, the District determined that Stolk
was absent without approval on April 30, and that this was a non-retaliatory reason for
suspending him.
iv. 	Stolk’s May 1, 2014 Absence and His Failure to Schedule a Meeting
with Tovares
As already stated above, I find it suspicious that the District included Stolk’s May 1,
2014 absence among the charges in the Suspension Notice, because it had already approved his
request to use vacation time for that absence by then. Nevertheless, the Suspension Notice also
52

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described other troubling aspects of Stolk’s behavior that day. That morning, Tovares directed
San Jacinto Instructional Aides, including Stolk, that because of the windstorm, they should
either report for duty at the Menifee campus or use vacation time. Tovares directed the
Instructional Aides to notify the people at Menifee if they intended on going there and to notify
his office of their plans either way. Stolk elected to use vacation time and he does not dispute
that he failed to inform anyone of this decision beforehand. Stolk asserts that he did not
contact Tovares’s office before using vacation that day because he thought he only had to
check in if he intended on going to the Menifee campus. I find that the District concluded that
Tovares’s e-mail clearly directed Instructional Aides to notify his office of their plans and that
it interpreted Stolk’s failure to respond as ignoring Tovares’s order.28
In addition, Stolk had the opportunity to explain his actions because Tovares directed
Stolk to schedule a meeting to discuss the matter. And yet, Stolk acknowledges that he did not
comply with this directive. Stolk contends that he did not feel the need to comply because he
eventually e-mailed Tovares about using vacation time on May 1. Stolk argues that Tovares
himself could have arranged the meeting if he felt the need to discuss the matter further. This
argument does not address the fact that Stolk failed to follow Tovares’s directive. Moreover,
since Tovares said he wanted to discuss both Stolk’s absences on April 30 and May 1, it is
difficult to understand why Stolk believed that his response about only one of the two days at
issue would have fully obviated the need for the meeting. Under the circumstances, I find that
28 Stolk contends in his closing brief that he reported for work at the San Jacinto
campus that day and spoke with faculty member Jones about his schedule before leaving. He
suggests that this conversation satisfied any duty he had to report his whereabouts before
leaving. This claim apparently refers to a statement in Stolk’s written response to the June
2014 Notice of Intended Disciplinary Action. In that document Stolk states that he arrived at
work and discussed his schedule for the following week with Jones. There was no evidence
that Stolk discussed his plans for that day with Jones, or anyone else, before leaving campus.
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the District concluded that Stolk failed to follow Tovares’s directive about scheduling the
meeting and that this was another non-retaliatory reason for pursuing the suspension.
v. 	The Chemistry 102 Lab
As already discussed above, I find it unusual that the District declined to investigate
whether another employee, Heredia, could have corroborated Stolk’s version of events
regarding this charge. However, I also note that this charge in the Suspension Notice was
based, in part, on Stolk’s statement to Tovares that he (Stolk) determines the lab schedule.
Tovares testified that he remembered Stolk making this comment and Stolk provided no
contrary evidence. Nor did Stolk dispute making this statement either during his Skelly
meeting with Stokes or in the written materials he provided to her.29 Under the circumstances,
I conclude that the District considered Stolk’s statement to be another example of Stolk
seeking to exert control in matters Tovares felt should be determined by faculty. This is
another non-retaliatory reason for the suspension.
vi. 	Conclusion
The record in this case demonstrates that there is both circumstantial evidence of
retaliation and also evidence that the District had concerns about Stolk’s behavior that was
unrelated to Stolk’s protected activity. Weighing all of this evidence together, I conclude the
District suspended Stolk for non-retaliatory reasons. It is curious that the District reduced the
contemplated discipline from a demotion to a five-day suspension shortly after Stolk expressed
his desire for an appeal hearing. Perhaps conveniently for the District, there is no right to a
hearing for suspensions of less than five days. While one might question the timing of this
29 Stolk’s written statement provided to Stokes does claim that he works collaboratively
with faculty, but this statement did not include any detail about Stolk’s meeting with Tovares
or statements he made about controlling the lab schedule.
54

change, the shift is at least partially explained by the fact that the District had gone through
four different Vice Presidents of HR between the time the District initiated the discipline
against Stolk and the time it decided on a five-day suspension. Horsley credibly testified that
he felt a demotion was too significant of a jump in punishment from the January 2014 Written
Reprimand.
There were also some inconsistencies in the nature of the charges and the District’s
investigation of those charges, but a large proportion of the charges in the Suspension Notice
were based on undisputed conduct. The District found that this conduct demonstrated a follow
clear directives, a lack of willingness to be held accountable, and a resistance to collaborating
with others in a manner consistent with Tovares’s instructions. While I recognize that Stolk
firmly believes that his actions were appropriate and did not warrant discipline, it is beyond the
scope of this proceeding to resolve the parties’ disagreement. I hold that the District’s
concerns with Stolk’s behavior constitute non-retaliatory reasons for pursuing discipline
against Stolk and that those concerns were the true reason for the suspension. Stolk’s claim
that his suspension was retaliatory is accordingly dismissed.
2. 	Stolk’s Unalleged Violations
Stolk appears to raise two additional causes of action against the District in his closing
brief. First, Stolk asserts that the District wrongly denied him 2.5 hours of vacation time for
his absence on April 30, 2014. Second, Stolk seems to assert that the District constructively
discharged him, by forcing him to agree to retire in September 2016. Neither claim is part of
the PERB complaint. PERB has the authority to review unalleged violations when the
following criteria are met: (1) adequate notice and opportunity to defend has been provided to
respondent; (2) the acts are intimately related to the subject matter of the complaint and are
55

part of the same course of conduct; (3) the unalleged violation has been fully litigated; and (4)
the parties have had the opportunity to examine and be cross-examined on the issue.
(Claremont Unified School District (2015) PERB Decision No. 2459, p. 3, citing County of
Riverside (2010) PERB Decision No. 2097-M; Fresno County Superior Court (2008) PERB
Decision No. 1942-C.) The unalleged violation must also have occurred within the applicable
statute of limitations period. (Ibid.)
Applying that standard here, both of Stolk’s unalleged violations are untimely under the
six month statute of limitations period for EERA cases. (Los Angeles Unified School District
(2014) PERB Decision No. 2359, p. 3). Stolk first contends that the District improperly
deprived Stolk of 2.5 hours of paid vacation time on April 30, 2014. Tovares denied Stolk’s
leave time on or around May 12, 2014, outside the statute of limitations period by several
years. Moreover, on November 8, 2016, PERB withdrew, at Stolk’s request, all claims of
adverse actions taken by the District before January 8, 2015. This necessarily includes the
District’s conduct from May 12, 2014. Although that withdrawal was without prejudice to
refile, Stolk provided no notice that he would attempt to revive such claims. Therefore, the
standards for unalleged violations are not satisfied here, and this claim will not be considered.
Stolk’s constructive discharge claim is likewise untimely. Constructive discharge is a
legal term describing an essentially involuntary resignation from employment resulting from
an employer’s intolerable working conditions. (Visalia Unified School District (2004) PERB
Decision No. 1687, proposed dec., p. 23.) The statute of limitations period in constructive
discharge cases runs from the date the employee submits his or her resignation. (Id. at
proposed dec., pp. 24-25.) Here, Stolk submitted his resignation on September 9, 2016, which
is more than six months from when Stolk first raised this issue at PERB. In addition, Stolk
56

was informed during the hearing that it would be problematic to assert his constructive
discharge claim because it was not in the PERB complaint and he did not indicate his intent to
do so earlier. Stolk gave no indication at that point that he intended to pursue his alleged
constructive discharge as an unalleged violation. Therefore, I find that the District lacked
notice of his intent to pursue this claim. This claim will also not be discussed further.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-6052-E,
Robert Stolk v. San Jacinto Community College District, are hereby DISMISSED.
Right to Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision
and Order shall become final unless a party files a statement of exceptions with the Public
Employment Relations Board (PERB or Board) itself within 20 days of service of this Decision. The
Board’s address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any, relied upon for such exceptions. (Cal.
Code Regs., tit. 8, § 32300.)
A document is considered “filed” when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (a).)
A document is also considered “filed” when received by facsimile transmission before the close of
57

business together with a Facsimile Transmission Cover Sheet or received by electronic mail before
the close of business, which meets the requirements of PERB Regulation 32135, subdivision (d),
provided the filing party also places the original, together with the required number of copies and
proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also
Cal. Code Regs., tit. 8, §§ 32090, 32091 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served on a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140, and
32135, subd. (c).)
58