South Orange County Community College District (PERB 2804E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MARIA-ESTER NUNEZ,
Charging Party,
v.
SOUTH ORANGE COUNTY COMMUNITY
COLLEGE DISTRICT,
Respondent.
Case No. LA-CE-6579-E
PERB Decision No. 2804
January 28, 2022
Appearances: Public Employees Legal by Ronald P. Ackerman and Oshea V. Orchid,
Attorneys, for Maria-Ester Nunez; Erickson Law Firm by Rex Randall Erickson and
Joshua Taylor, Attorneys, for South Orange County Community College District.
Before Banks, Chair; Shiners and Paulson, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Maria-Ester Nunez from the dismissal of her
unfair practice charge by PERB’s Office of the General Counsel (OGC). The charge,
as amended, alleged that the South Orange County Community College District
violated the Educational Employment Relations Act (EERA) by (1) taking various
adverse actions against her, including termination of employment, in retaliation for
engaging in protected activities and thereby interfering with her statutory rights,
(2) postponing the District Board of Trustees’ scheduled vote on a proposed
contractual equity clause so that Nunez would be on leave and unable to clarify and
correct the District’s misleading information, and (3) failing to give Nunez notice of the

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Trustees’ intent to discuss termination of her employment in closed session, as
required by the Ralph M. Brown Act (Brown Act).1 OGC dismissed the amended
charge for failure to state a prima facie case. Nunez timely appealed portions of the
dismissal.2
Based on our review of the entire case file, the warning and dismissal letters,
and relevant legal authority in light of the parties’ submissions, we reverse the
dismissal of the allegation that the District terminated Nunez’s employment in
retaliation for her protected activity and remand this matter to OGC to issue a
complaint on that allegation. We affirm, however, the dismissal of the allegation that
Nunez’s suspension interfered with protected rights by preventing her from
communicating with union representatives.
SUMMARY OF FACTUAL ALLEGATIONS
Nunez began her employment with the District in 2002. She was elected
Classified Senate President in March 2017. She also became the California School
Employees Association (CSEA) Chapter Vice President in December 2018. Nunez
was very active in her role on the negotiations team for CSEA. In July 2019, Nunez
1 EERA is codified at Government Code section 3540 et seq. The Brown Act is
codified at Government Code section 54950 et seq.
2 Nunez did not appeal OGC’s dismissal of the alleged Brown Act violation for
lack of jurisdiction, nor the dismissal of the allegations that the District retaliated
against Nunez by placing her on administrative leave, issuing her a Notice of Intent to
Discipline, and placing her on an unpaid suspension, all of which OGC found to be
untimely. Accordingly, those allegations are not before the Board on appeal. (Napa
Valley Community College District (2018) PERB Decision No. 2563, p. 8, fn. 7.)

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requested information from the District about a new salary schedule containing a lower
hourly rate, and raised concerns about family care leave and other leaves.
Vice President of Student Services Dr. Linda Fontanilla supervised Nunez and
Executive Assistant Angela Mahaney. Mahaney and Fontanilla had both scheduled
vacation for the same week in late July or early August 2019. Nunez requested the
same week off to attend the CSEA Annual Conference. Fontanilla contacted Acting
Vice Chancellor of Human Resources Kim Widdes about Nunez’s CSEA release time
request. During that conversation Fontanilla mentioned to Widdes that Nunez was
frequently absent from work. While talking with Fontanilla, Widdes reviewed Nunez’s
leave balances using the District’s leave tracking system and observed that Nunez’s
leave balances were high for someone frequently absent. Widdes asked Fontanilla for
copies of the past two years’ text messages sent by Nunez reporting that she would
be late or absent. With this information Widdes investigated Nunez’s absences.
Meanwhile, Fontanilla denied Nunez’s request to attend the CSEA Annual Conference
even though under the CSEA-District collective bargaining agreement, elected
delegates are excused to attend.
In September 2019, Nunez raised issues about the hourly rate calculation with
the District. Around this same time, CSEA Chapter President Scott Ferguson Greene
told Nunez that Fontanilla had called the District to complain about the number of
union meetings Nunez attended.
In November 2019, the District questioned the legitimacy of the Classified
Senate and its role representing classified members. Nunez argued that the Classified
Senate played an important role in disseminating crucial information to CSEA
members and the issue was dropped.

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In December 2019, Nunez discovered while calculating the terms of a proposed
equity clause in the CSEA-District collective bargaining agreement that the District
included its cost for employee taxes in the calculation, which she believed violated the
agreement. Nunez raised her concerns with the District but Widdes refused to
continue discussing the issue with Nunez.
On January 6, 2020,3 District Human Resources sent an e-mail to Nunez about
a mandatory meeting on January 8 to discuss a performance issue. The next day,
Fontanilla called Nunez into her office to ask her if she knew what the meeting was
regarding. Nunez replied she did not know. Fontanilla said she was surprised Human
Resources did not inform her and shared that the meeting involved unauthorized
CSEA release time.
On January 8, Nunez attended the mandatory meeting with CSEA Chapter
President Greene and her labor representative. Human Resources Investigator Karen
Dubert, Widdes, and Fontanilla were present for the District. Nunez was served with a
Notice of Intent to Discipline that contained 36 charges alleging that she stole time by
not entering her absences into the District’s timekeeping system. The Notice informed
Nunez that the District proposed to terminate her employment based on this alleged
misconduct. This was the first time Nunez was alerted to issues involving unrecorded
absences. The District placed Nunez on administrative leave immediately after the
meeting.
3 All further dates are in 2020 unless otherwise indicated.

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On January 23, Nunez attended a Skelly hearing,4 at which she was
accompanied by her local Chapter representative and a CSEA regional representative.
On January 29, Nunez received the recommendation of the Skelly officer. Although
the Skelly officer sustained the District’s proposed termination, she did so based on
only 11 of the charges, finding the other 25 charges were unfounded.
On February 4, Widdes issued Nunez a First Amended Notice of Discipline
containing the 11 charges sustained by the Skelly officer. The Notice informed Nunez
that she had been placed on unpaid suspension immediately after the January 23
Skelly hearing. At its February public meeting, the District Board of Trustees voted on
the contractual equity clause Nunez had raised concerns about in December 2019.
On August 17 and 18, an evidentiary due process hearing was conducted
regarding Nunez’s termination. On September 24, the hearing officer found the District
had cause to terminate Nunez’s employment. The District terminated Nunez’s
employment on October 19.
PROCEDURAL SUMMARY
Nunez filed her initial unfair practice charge on August 17, 2020. The charge
alleged that the District placed Nunez on administrative leave in retaliation for her
4 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 requires that permanent
civil service employees be given notice of significant proposed disciplinary action, the
reasons for the action, a copy of the charges and the materials upon which they are
based, and an opportunity to respond to the charges either orally or in writing before
discipline is imposed. (Id. at p. 215.) A “Skelly hearing” refers to the employee’s
opportunity to respond to the charges and essentially results in a determination of
whether there are reasonable grounds to believe the charges against the employee
are true and support the proposed action. (Cleveland Bd. of Educ. v. Loudermill (1985)
470 U.S. 532, 545-546.)

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CSEA activity, including raising concerns about the proposed contractual equity
clause, and that it had done so to prevent her from attending the February 2020
District Board of Trustees meeting where the Trustees were scheduled to vote on the
clause.
On February 22, 2021, OGC issued Nunez a warning letter finding that the
charge did not state a prima facie case because the allegations were untimely. The
warning letter also said the charge failed to establish a prima facie case of retaliation
based on the District’s placement of Nunez on administrative leave because it did not
allege the presence of at least one “nexus factor” showing Nunez was placed on leave
because of her EERA-protected activity.5
On March 8, 2021, Nunez filed a first amended charge which added allegations
that the District terminated her employment on October 19, 2020. The amended
charge also alleged that the District never informed Nunez when the District Board of
Trustees would be discussing her alleged misconduct, and never provided her with the
opportunity to speak on her own behalf or the opportunity to request that such a
meeting be public as allowed by the Brown Act.
On July 23, 2021, OGC issued Nunez a second warning letter finding that the
allegation that the District terminated Nunez’s employment on October 19, 2020,
established an adverse action, but found the charge lacked the presence of at least
one “nexus factor.” The letter further found the amended charge did not state a prima
5 As discussed post, PERB has developed several nexus factors used for
identifying the circumstances which may support an inference that an adverse action
was taken with unlawful intent.

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facie case because it did not contain information showing that the District’s failure to
provide notice of the District’s Board of Trustees meeting, opportunity to speak, or
request a public meeting were adverse actions.
On August 6, 2021, Nunez filed a second amended charge alleging (1) further
details about her protected activities; (2) the grounds and causes for the District’s
termination of her employment; (3) the District’s failure to provide her with progressive
discipline; (4) Widdes’ alleged lie about a new policy that pending or following a Skelly
hearing, employees are automatically placed on unpaid administrative leave until an
evidentiary hearing; (5) the postponement of the Board of Trustees’ December 2019
scheduled vote on the proposed equity clause to February 2020 so that Nunez would
be on leave and unable to clarify and correct the District’s misleading information; and
(6) a violation of the Brown Act by failing to give Nunez notice of the Trustees’ intent to
discuss her employment in closed session.
On September 7, 2021, OGC issued a dismissal letter finding the amended
charge did not allege any nexus factors to support the retaliation allegation. The letter
also found the allegation that the District postponed the Trustees’ vote to deprive
Nunez of the opportunity to clarify and correct misleading information was speculative
and did not provide other facts that might demonstrate the employer’s unlawful motive.
The letter further noted that PERB does not have jurisdiction to enforce the open
meeting requirements under the Brown Act.
Nunez filed a timely appeal on September 27, 2021. On October 18, 2021, the
District filed a response to the appeal requesting the Board adopt the decision of OGC
and dismiss the appeal.

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DISCUSSION
We review OGC’s dismissal of a charge de novo, applying the same legal
standard OGC applied to the allegations in the charge. (City & County of San
Francisco (2020) PERB Decision No. 2712-M, p. 2.) At this stage of litigation, “the
charging party’s burden is not to produce evidence, but merely to allege facts that, if
proven true in a subsequent hearing, would state a prima facie violation.” (County of
Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) We thus assume the
charging party’s factual allegations are true, and we view them in the light most
favorable to the charging party. (Cabrillo Community College District (2015) PERB
Decision No. 2453, p. 8 (Cabrillo I); Cabrillo Community College District (2019) PERB
Decision No. 2622, p. 4 (Cabrillo II).) We do not rely on the respondent’s responses if
they explicitly or implicitly create a factual conflict with charging party’s allegations,
even if the respondent’s contrary responses are stated more persuasively or appear
as if they may be backed up by more supporting evidence, when compared to
charging party’s allegations. (Cabrillo I, supra, PERB Decision No. 2453, p. 8; Salinas
Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M, p. 13.) Thus,
at this stage of the case we generally do not resolve conflicting allegations, make
conclusive factual findings, or judge the merits of the dispute. (Cabrillo II, supra, PERB
Decision No. 2622, pp. 4-5; County of Santa Clara, supra, PERB Decision
No. 2321-M, p. 12.) Rather, if there are one or more contested facts (or mixed
questions of law and fact) that could affect the outcome, or there are contested,
colorable legal theories, a complaint should issue, with the disputed issue(s) to be
resolved at a formal hearing. (County of Santa Clara, supra, PERB Decision
No. 2321-M, p. 12; Salinas Valley Memorial Healthcare System, supra, PERB

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Decision No. 2298-M, p. 13.) “[W]here a material factual dispute turns on the
respondent’s state of mind,” we take into account that motive is generally within the
respondent’s own knowledge and that there is little opportunity for pre-hearing
discovery, and we accordingly impose on the charging party a relatively low burden to
allege facts tending to show the requisite state of mind. (Lake Elsinore Unified School
District (2018) PERB Decision No. 2548, p. 18.)
Nunez’s appeal raises two issues for consideration. First, Nunez argues that
OGC erroneously dismissed the retaliation allegation because the amended charge
alleged sufficient facts establishing a causal nexus between Nunez’s EERA-protected
activities and her termination. Second, Nunez contends that the amended charge
alleged sufficient facts showing that her placement on administrative leave on
January 8, 2020, precluded her from communicating with CSEA about her equity
clause concerns. For the following reasons, we find merit in Nunez’s first ground for
appeal but not the second.
I. 	Retaliation
To establish a prima facie case of retaliation sufficient to support issuance of a
complaint, a charging party must allege facts showing that: (1) one or more employees
engaged in activity protected by a labor relations statute that PERB enforces; (2) the
respondent had knowledge of such protected activity; (3) the respondent took adverse
action against one or more of the employees; and (4) the respondent took the adverse
action because of the protected activity, which PERB interprets to mean that the
protected activity was a substantial or motivating cause of the adverse action. (City &
County of San Francisco, supra, PERB Decision No. 2712-M, p. 15.)

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Although only the fourth element is at issue on appeal, we briefly discuss the
other elements of the prima facie case. As OGC correctly found, the amended charge
sufficiently alleged that Nunez participated in EERA-protected activity. Specifically, at
the time of her termination, Nunez was the CSEA Chapter Vice President and a
member of CSEA’s negotiating team. (Santa Clara Valley Water District (2013) PERB
Decision No. 2349-M, pp. 27-29 [service as union officer is protected]; City of South
Pasadena (2020) PERB Decision No. 2692-M, p. 11 [service on union negotiating
team is protected].) Nunez also engaged in EERA-protected activity when she: (1) in
July 2019, requested information from the District about a new salary schedule
containing a lower hourly rate, and raised concerns about family care leave and other
leaves (Berkeley Unified School District (2015) PERB Decision No. 2411, pp. 19-20);
(2) requested contractual leave to attend the CSEA Annual Conference (Omnitrans
(2008) PERB Decision No. 1996-M, p. 12); (3) in September 2019, raised issues about
the hourly rate calculation with the District (Berkeley Unified School District, supra,
PERB Decision No. 2411, pp. 19-20); and (4) in December 2019, raised concerns with
the District over a proposed equity clause in the CSEA contract (Ibid.).6
6 It is unclear whether Nunez’s conduct of requesting information and raising
concerns in July and September 2019 was undertaken in her role as CSEA Chapter
Vice President, Classified Senate President, both, or neither. Nonetheless, because
wage rates and leave are within the scope of negotiations and thus matters of concern
to employees, her communications with the District about those matters were
protected, regardless of whether she was acting on behalf of CSEA, the Classified
Senate, both, or neither. (Walnut Valley Unified School District (2016) PERB Decision
No. 2495, pp. 19-20; see Jurupa Unified School District (2012) PERB Decision
No. 2283, p. 16 [individually seeking to enforce provisions of a collectively bargained
agreement is a logical continuation of group activity and therefore protected].)

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Although the warning and dismissal letters do not address whether the District
officials who played a role in Nunez’s termination had knowledge of her protected
activities, the amended charge alleged sufficient facts to demonstrate such
knowledge. Nunez’s supervisor, Fontanilla, knew that Nunez used CSEA release time
and requested leave to attend the CSEA Annual Conference. Fontanilla also
complained about Nunez’s attendance at union meetings. Acting Vice Chancellor of
Human Resources Widdes knew of Nunez’s request for leave to attend the CSEA
Annual Conference and of Nunez’s concerns about the proposed contractual equity
clause. It also may be inferred that in her role overseeing Human Resources, Widdes
was aware of Nunez’s July 2019 information request and concerns over leave, and her
September 2019 concerns over the hourly rate calculation. Widdes issued the Notice
of Intent to Discipline informing Nunez of the charges against her and the District’s
intent to terminate her employment. The amended charge thus sufficiently alleged that
at least one person involved in Nunez’s termination knew of her protected activities.
(Escondido Union Elementary School District (2009) PERB Decision No. 2019, p. 19.)
OGC also correctly found that the District’s termination of Nunez’s employment
constituted an adverse action. (California Virtual Academies (2018) PERB Decision
No. 2584, p. 22.)
“To establish the final element of the prima facie case, the charging party must
show that the employee’s protected activity was a motivating factor in the employer’s
decision to impose the adverse action.” (Omnitrans (2009) PERB Decision
No. 2121-M, p. 9.) While PERB considers all relevant facts and circumstances in
assessing an employer’s motivation, we have identified the following “nexus factors”
as being the most common means of establishing a discriminatory motive, intent, or

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purpose: (1) timing of the employer’s adverse action in relation to the employee’s
protected conduct; (2) disparate treatment; (3) departure from established procedures
or standards; (4) an inadequate investigation; (5) a punishment that is disproportionate
based on the relevant circumstances; (6) failure to offer a contemporaneous
justification, or offering exaggerated, questionable, inconsistent, contradictory, vague,
or ambiguous reasons; (7) employer animosity towards union activists; and (8) any
other facts that might demonstrate the employer’s unlawful motive. (See, e.g., City of
Santa Monica (2020) PERB Decision No. 2635a-M, p. 42; City of Sacramento (2019)
PERB Decision No. 2642-M, p. 21.) Because a determination of motive is highly
contextual, these factors are not to be applied mechanically but rather used as
guidelines for holistically determining whether the charging party could produce
sufficient circumstantial evidence at hearing to establish the employer’s discriminatory
motive. (County of Santa Clara (2017) PERB Decision No. 2539-M, p. 8.)
“Although the timing of the employer’s action in close temporal proximity to the
employee’s protected activity is an important factor, it does not, without more,
demonstrate the necessary nexus between the employer’s action and the protected
activity.” (Monterey Peninsula Unified School District (2014) PERB Decision No. 2381,
p. 29, internal citations omitted.) While OGC acknowledged that timing is a nexus
factor, the warning and dismissal letters did not address it. Nonetheless, the
allegations in the amended charge establish sufficient close timing to support an
inference of unlawful motivation for Nunez’s termination. At the time the District
decided to terminate Nunez, she was serving as CSEA Chapter Vice President and a
member of CSEA’s bargaining team. The initial Notice of Intent to Discipline informing
Nunez of the District’s intent to terminate her employment was served on January 8,

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2020, approximately one month after Nunez raised issues about the proposed equity
clause with Widdes. Additionally, in the six months preceding the Notice, Nunez had
requested information from the District about a new salary schedule containing a lower
hourly rate, raised concerns about family care leave and other leaves and about the
hourly rate calculation, and requested contractual CSEA release time to attend the
CSEA Annual Conference. The close timing between Nunez’s protected activities and
the District’s decision to terminate her employment thus supports an inference that the
termination was motivated by the protected conduct. (See California Virtual
Academies, supra, PERB Decision No. 2584, p. 23 [finding the employee’s “protected
activity throughout the five months leading up to her termination, including some
immediately before [management] commenced [its] investigation [was] close timing
support[ing] a strong inference of unlawful motive”].)
Although implicitly finding the timing factor was satisfied, OGC found the
amended charge failed to establish any other nexus factor. The only nexus factor
explicitly addressed in the dismissal letter is departure from established procedures
and standards when dealing with the employee. OGC found that neither the allegation
that Nunez did not receive progressive discipline nor the allegation that Widdes lied
about the policy allowing the District to place Nunez on unpaid administrative leave
pending her due process hearing showed a departure from established procedures.
Given the lack of allegations in the amended charge as to the District’s existing
disciplinary or administrative leave procedures, we agree that Nunez failed to allege a
departure from established procedures. (Lake Elsinore Unified School District (2019)
PERB Decision No. 2671, p. 7.)

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But the allegation that Nunez did not receive progressive discipline before being
terminated does implicate the disproportionate punishment nexus factor. In
considering whether the punishment appears disproportionate to the alleged
misconduct, PERB does not determine whether the employer had just cause to
impose the particular punishment. (Adelanto Elementary School District (2019) PERB
Decision No. 2630, pp. 10-11.) Rather, the inquiry is whether the employer’s choice to
impose the particular punishment instead of a lesser punishment indicates a
retaliatory motive. Thus, in certain contexts, an employer’s decision to terminate an
employee rather than pursue progressive discipline may indicate the employer wished
to rid itself of a known union supporter. (Regents of the University of California (2020)
PERB Decision No. 2704-H, p. 28; City of South Pasadena, supra, PERB Decision
No. 2692-M, adopting proposed decision at pp. 19-21; California Virtual Academies,
supra, PERB Decision No. 2584, pp. 26-28; see San Joaquin Delta Community
College District (1982) PERB Decision No. 261, pp. 8-9 [finding that “suspiciously
severe” punishment of transferring campus police officer to grounds crew supported
an inference that the transfer occurred because the officer was “a known union
activist”].)
In such cases, the decision to terminate often is intertwined with an inadequate
investigation of the employee’s alleged misconduct. For instance, in Regents of the
University of California, supra, PERB Decision No. 2704-H, the university fired two
employees for timecard fraud but “failed to investigate the several critical predicate
facts underlying its conclusion that [the employees] knowingly violated policy.” (Id. at
p. 27.) We noted that “an inadequate investigation can prevent an employer from
learning the true facts [and] result in a disproportionate punishment, which is a further

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indicator of unlawful motive.” (Id. at p. 28.) We concluded that “the University’s failure
to pursue these facts indicate[d] disinterest in whether the alleged misconduct actually
occurred and strongly signal[ed] unlawful motive.” (Ibid.) In City of South Pasadena,
supra, PERB Decision No. 2692-M, the city fired a firefighter for participating in an
obstacle course race while on disability leave and allegedly trying to hide that fact from
fire department management. (Id. at pp. 4, 9.) We found the investigation inadequate
because the city’s investigator failed to speak to the firefighter’s physician or review
his medical records, and that this failure, along with other suspicious aspects of the
investigation, showed the city acted with a retaliatory motive. (Id., adopting proposed
decision at pp. 17-18.) We also found disproportionate punishment because the
termination was inconsistent with the progressive discipline practice that relied on
informal counseling, rather than formal discipline, for similar misconduct. (Id. at p. 13.)
In California Virtual Academies, supra, PERB Decision No. 2584, the employer fired
an employee for falsifying records without interviewing the employee or her
supervisors, thereby demonstrating the employer “was not interested in obtaining
evidence that might conflict with its desired result.” (Id. at pp. 25-26.)
In light of the above cases, the allegations in the amended charge establish
both the inadequate investigation and disproportionate punishment nexus factors. The
District’s one-sided investigation of Nunez’s alleged time theft consisted of comparing
Nunez’s texts saying she would be late or absent with her entries in the District’s
timekeeping system. Based on this investigation, the District proposed to terminate
Nunez for 36 alleged instances of time theft. The District never interviewed Nunez
about any of these instances; she first became aware of the allegations when she was
served with the Notice of Intent to Discipline. Based on Nunez’s presentation at her

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Skelly hearing, the Skelly officer found 25 of the 36 alleged instances were unfounded.
This suggests that if the District adequately investigated to learn the true facts,
including interviewing Nunez, it would have discovered it had no basis for 25 of the
charges. That it did not undertake this additional investigation supports an inference
that the District “was not interested in obtaining evidence that might conflict with its
desired result.” (California Virtual Academies, supra, PERB Decision No. 2584, p. 26.)
Furthermore, despite the Skelly officer dismissing two-thirds of the charges
against Nunez, the District did not reduce the proposed discipline but instead
proceeded to terminate Nunez based on the remaining 11 charges. Although we
cannot say based upon the allegations in the amended charge that termination was a
disproportionate punishment for the remaining 11 charges, the District’s persistence in
terminating Nunez’s employment despite the weakness of a large portion of its
charges suggests that termination was a predetermined outcome to rid the District of
“a known union activist.” (San Joaquin Delta Community College District, supra, PERB
Decision No. 261, pp. 8-9.)
Finally, the amended charge also alleged facts showing District animosity
toward Nunez’s EERA-protected activities. Nunez’s supervisor, Fontanilla, denied her
request for leave to attend the CSEA Annual Conference. (See State of California
(California Correctional Health Care Services) (2019) PERB Decision No. 2637-S,
p. 15 (CCHCS) [resistance to union-related leave requests shows animus toward
union activity].) Several weeks later, Fontanilla complained to the District about the
number of union meetings Nunez attended. (See State of California (Correctional
Health Care Services) (2021) PERB Decision No. 2760-S, p. 24 (judicial appeal
pending) [manager’s concern that employee’s union steward duties would interfere

17
with his performance of job duties showed animus toward union activity].) The day
before the meeting at which the District served Nunez with the Notice of Intent to
Discipline, Fontanilla told Nunez the meeting was about her unauthorized CSEA
release time. These statements show that Fontanilla disapproved of Nunez’s union
activities, thus supporting an inference that her animus toward those activities played
a role in Nunez’s termination. (See id. at p. 32 [animus of two of the four members of
an interview panel toward the third-ranked candidate’s union steward duties “infected”
the decision not to hire him after the first two candidates did not work out]; CCHCS,
supra, PERB Decision No. 2637-S, pp. 15-16 [animus inferred when supervisor’s
“embittered response” during conversation with employee about her union duties was
not in response to a personal attack and was “inextricably bound together” with
subordinate’s protected activity].)
Because the amended charge alleged facts establishing three recognized
nexus factors, we reverse the dismissal of the allegation that the District terminated
Nunez’s employment because of her EERA-protected activity and remand this matter
to OGC for issuance of a complaint on that allegation.7 In so doing, we do not
prejudge which nexus factors Nunez may primarily rely on at the formal hearing, which
rationales or arguments the District may make in countering Nunez’s case or in
affirmatively asserting that it would have taken exactly the same actions even absent
protected activity, or which party will ultimately introduce a more persuasive set of
7 Although we find the charge allegations establish three particular nexus
factors, Nunez “remains free to introduce all relevant and admissible evidence of
nexus at the formal hearing.” (City & County of San Francisco, supra, PERB Decision
No. 2712-M, p. 27, fn. 8.)

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overall evidence. Rather, at the present stage, we find only that there is a material
dispute of fact regarding the District’s motive for terminating Nunez’s employment.
II. 	Interference
Nunez appeals OGC’s determination that she was able to speak with CSEA
representatives while on suspension based on the statement in the amended charge
that “Nunez’s report in opposition to the proposal was dismissed by the Chief Job
Steward.” The appeal argues that Nunez was prevented from returning to campus for
CSEA meetings after she was escorted off campus on January 8, 2020. But, even if
true, this argument fails for two reasons. First, a directive for an employee not to
communicate with her union while on suspension would unlawfully interfere with the
employee’s EERA-protected rights. (Los Angeles Unified School District (2014) PERB
Decision No. 2404, pp. 11-12.) But the amended charge does not allege, nor do the
filings contain, the terms of Nunez’s suspension, so there are no alleged facts showing
such a prohibition. Second, even if Nunez could not attend CSEA meetings on
campus, the amended charge does not allege facts showing the District prevented
Nunez from communicating with CSEA representatives by other means, such as
telephone, e-mail, or meeting off-campus. And to the extent Nunez claims her
suspension precluded her from addressing the District Board of Trustees about the
proposed equity clause at its February 2020 meeting, the amended charge alleges no
facts showing that the terms of her suspension barred her from attending and
participating in what presumably was a meeting open to the public. For these reasons,
we affirm OGC’s dismissal of the interference allegation based on Nunez’s
suspension.

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ORDER
The dismissal of the amended unfair practice charge in Case
No. LA-CE-6579-E is REVERSED IN PART. This matter is REMANDED to the Office
of the General Counsel to issue a complaint alleging that the South Orange County
Community College District terminated Maria-Ester Nunez’s employment because she
engaged in activities protected by the Educational Employment Relations Act. All other
allegations in the amended unfair practice charge in Case No. LA-CE-6579-E are
DISMISSED WITHOUT LEAVE TO AMEND.
Chair Banks and Member Paulson joined in this Decision.