Decision 2760S – * * * JUDICIAL APPEAL PENDING * * * State of California (Correctional Health Care Services)

SF-CE-290-S

Decision Date: April 12, 2021

Decision Type: PERB Decision

Description: The complaint alleged that California Correctional Health Care Services (CCHCS) discriminated against Kevin Healy by refusing to promote him due to his activities as a union shop steward. The ALJ ruled in Healy’s favor and ordered CCHCS to offer Healy the next available SSA/AGPA position at San Quentin and to make Healy whole. CCHCS excepted to the ALJ’s liability findings and associated remedy.

Disposition: The Board adopted the ALJ’s proposed decision, as supplemented by discussion of CCHCS’s exceptions. Healy established that unlawful animus substantially motivated his employer’s decision not to promote him, shifting the burden to CCHCS to establish that it would have refused to promote Healy even if he had not engaged in protected activity. Circumstantial and direct evidence of anti-union animus, and the employer’s shifting, pretextual rationales, prevented CCHCS from meeting this burden. The Board adjusted the ALJ’s remedial order, directing CCHCS to reclassify Healy retroactively to the AGPA classification, assign him appropriate duties at San Quentin until the position he was denied next becomes vacant, and place Healy in the position if he is still an active State employee at that time.

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Perc Vol: 45
Perc Index: 91

Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession

Notwithstanding the State Personnel Board’s jurisdiction to enforce civil service laws, prescribe classifications, and review disciplinary actions against state civil service employees, PERB is authorized to provide a full remedy if such employees experience discrimination for engaging in activity the Dills Act protects. In Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 198, the California Supreme Court explained that PERB’s authority over unfair practices did not infringe on SPB’s jurisdiction to review disciplinary actions because SPB and PERB were created to serve “different, but not inconsistent, public purposes.” (Id. at p. 197.) If the State, in the course of making a personnel decision, discriminates against protected activity in violation of the Dills Act, it transgresses the merit principle as well. (Id. at p. 198.) Thus, the Court declined “to construe article VII, section 3, subdivision (a) [of the State Constitution] in a manner that would deprive all state civil service employees of the important safeguards afforded by [PERB and other] specialized agencies.” (Id. at p. 199.) In reaching this conclusion, the Court noted that when the Legislature enacted the Dills Act, it explicitly tailored the law so as not “to contravene the spirit or intent of the merit principle.” (Dills Act, § 3512.) The Court rejected the argument that granting PERB jurisdiction to “devise remedies for unfair practices” is “irreconcilably in conflict with [SPB’s] jurisdiction to ‘review disciplinary actions’ under [article VII of the State Constitution].” ((Id. at p. 196.) The Court advised that “in those areas in which the [agencies’] jurisdiction . . . overlap, familiar rules of construction” require “harmoniz[ing] the disparate procedures” rather than invalidating one or the other. (Id. at p. 197.) The Court found it would be an overreach to reserve only to SPB all authority to remedy unlawful actions against a civil service employee. (Id. at p. 199.) In State Personnel Bd. v. Fair Employment and Housing Com. (1985) 39 Cal.3d 422, the Court reaffirmed Pacific Legal Foundation and its holding that the Constitution allows the Legislature to create “specialized watchdog” agencies such as PERB and the Fair Employment and Housing Commission (FEHC) (id. at pp. 438-439), explaining that it is not difficult to harmonize the agencies’ powers because they serve complementary purposes (id. at p. 438). The Court reiterated that it believed the main source of overlap would be in cases involving discipline and that even in such cases SPB’s jurisdiction does not dislodge the Legislature from creating specialized agencies with complementary roles, such as PERB and FEHC. (Id. at p. 439.)

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession

PERB and the State Personnel Board (SPB) “are not in competition with each other.” (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 197.) Discriminatory personnel decisions violating the Dills Act “transgress the merit principle as well,” and “the Legislature evidently thought it important to assign the task of investigating potential violations of [the Dills Act] to an agency which possesses and can further develop specialized expertise in the labor relations field.” (Id. at p. 198.) Accordingly, when PERB finds that a civil service decision was based on discrimination violating the Dills Act, PERB’s findings are consistent with the merit principle, which requires that entitlement to civil service positions must turn on lawful criteria. (Id. at pp. 196-200.)

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.02000 – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes

Notwithstanding the State Personnel Board’s jurisdiction to enforce civil service laws, prescribe classifications, and review disciplinary actions against state civil service employees, PERB is authorized to provide a full remedy if such employees experience discrimination for engaging in activity the Dills Act protects. In Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 198, the California Supreme Court explained that PERB’s authority over unfair practices did not infringe on SPB’s jurisdiction to review disciplinary actions because SPB and PERB were created to serve “different, but not inconsistent, public purposes.” (Id. at p. 197.) If the State, in the course of making a personnel decision, discriminates against protected activity in violation of the Dills Act, it transgresses the merit principle as well. (Id. at p. 198.) Thus, the Court declined “to construe article VII, section 3, subdivision (a) [of the State Constitution] in a manner that would deprive all state civil service employees of the important safeguards afforded by [PERB and other] specialized agencies.” (Id. at p. 199.) In reaching this conclusion, the Court noted that when the Legislature enacted the Dills Act, it explicitly tailored the law so as not “to contravene the spirit or intent of the merit principle.” (Dills Act, § 3512.) The Court rejected the argument that granting PERB jurisdiction to “devise remedies for unfair practices” is “irreconcilably in conflict with [SPB’s] jurisdiction to ‘review disciplinary actions’ under [article VII of the State Constitution].” ((Id. at p. 196.) The Court advised that “in those areas in which the [agencies’] jurisdiction . . . overlap, familiar rules of construction” require “harmoniz[ing] the disparate procedures” rather than invalidating one or the other. (Id. at p. 197.) The Court found it would be an overreach to reserve only to SPB all authority to remedy unlawful actions against a civil service employee. (Id. at p. 199.) In State Personnel Bd. v. Fair Employment and Housing Com. (1985) 39 Cal.3d 422, the Court reaffirmed Pacific Legal Foundation and its holding that the Constitution allows the Legislature to create “specialized watchdog” agencies such as PERB and the Fair Employment and Housing Commission (FEHC) (id. at pp. 438-439), explaining that it is not difficult to harmonize the agencies’ powers because they serve complementary purposes (id. at p. 438). The Court reiterated that it believed the main source of overlap would be in cases involving discipline and that even in such cases SPB’s jurisdiction does not dislodge the Legislature from creating specialized agencies with complementary roles, such as PERB and FEHC. (Id. at p. 439.)

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.02000 – Concurrent or Conflicting Jurisdiction with Other Agencies or Courts; Interpretation or Enforcement of Other Statutes

PERB and the State Personnel Board (SPB) “are not in competition with each other.” (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 197.) Discriminatory personnel decisions violating the Dills Act “transgress the merit principle as well,” and “the Legislature evidently thought it important to assign the task of investigating potential violations of [the Dills Act] to an agency which possesses and can further develop specialized expertise in the labor relations field.” (Id. at p. 198.) Accordingly, when PERB finds that a civil service decision was based on discrimination violating the Dills Act, PERB’s findings are consistent with the merit principle, which requires that entitlement to civil service positions must turn on lawful criteria. (Id. at pp. 196-200.)

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

To establish a prima facie case of retaliation, the charging party has the burden to prove, by a preponderance of the evidence, 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 and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If the charging party meets its burden to establish each of these factors, certain fact patterns nonetheless allow a respondent the opportunity to prove, by a preponderance of the evidence, that it would have taken the exact same action even absent protected activity. (Ibid.) This affirmative defense is most typically available when, even though the charging party has established that protected activity was a substantial or motivating cause of the adverse action, the evidence also reveals a non-discriminatory motivation for the same decision. (Id. at pp. 15-16.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Id. at p. 16.)

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

Because employee established that unlawful animus substantially motivated his employer’s decision not to promote him, the burden shifts to employer to establish that it would have refused to promote employee even if he had not engaged in protected activity. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 27; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 15-16.) This determination can involve weighing the evidence supporting the employer’s justification against the evidence of the employer’s unlawful motive to determine what would more likely than not have occurred in the absence of protected activity. (San Diego Unified School District (2019) PERB Decision No. 2666, p. 7.) In doing so, PERB keeps in mind that even when an employer has a managerial, statutory, or contractual right to take an employment action, its decision to act cannot be based on an unlawful motive, intent, or purpose. (City of San Diego (2020) PERB Decision No. 2747-M, p. 29; County of Santa Clara (2019) PERB Decision No. 2629-M, p. 13; County of Lassen (2018) PERB Decision No. 2612-M, p. 6; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5.)

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.05000 – Union Activity of Discriminatee

Premature cessation of employee’s out-of-class (OOC) assignment relevant as evidence of unlawful intent. The record amply supports finding that employee’s union duties motivated State employer to end OOC assignment prematurely. When employee requested union leave to represent another employee in an internal affairs investigation, employer told HR staff that he was ending employee’s OOC assignment immediately as he was concerned that employee’s representational duties would interfere with his completion of the OOC duties. Employee had served for just over two weeks in the OOC position, an assignment scheduled to last for 120 days or until the permanent position was filled. Concern that employee’s representational duties would interfere with performing the OOC position dues is an unlawful rationale, as the Dills Act protects employee’s work as a union steward. Forcing an employee to give up a temporary promotive position—and thereby lessen his chances to fill the position permanently—demonstrates an inclination to levy a heavy price on those exercising protected rights. (Cf. State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, pp. 15-16 [resistance to requests for union-related leave evidence of CCHCS’s animus].) Moreover, prematurely removing employee from the OOC position assignment and leaving the position vacant for nine months runs counter to established practice and thus serves as substantial evidence of unlawful motive.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

Because employee established that unlawful animus substantially motivated his employer’s decision not to promote him, the burden shifts to employer to establish that it would have refused to promote employee even if he had not engaged in protected activity. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 27.) This determination can involve weighing the evidence supporting the employer’s justification against the evidence of the employer’s unlawful motive to determine what would more likely than not have occurred in the absence of protected activity. (San Diego Unified School District (2019) PERB Decision No. 2666, p. 7.) In doing so, PERB keeps in mind that even when an employer has a managerial, statutory, or contractual right to take an employment action, its decision to act cannot be based on an unlawful motive, intent, or purpose. (City of San Diego (2020) PERB Decision No. 2747-M, p. 29; County of Santa Clara (2019) PERB Decision No. 2629-M, p. 13; County of Lassen (2018) PERB Decision No. 2612-M, p. 6.)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.05000 – Dishonesty or Disloyalty to Employer

Employer’s non-specific and hearsay-laden summary, apparently referencing unspecified facts that employer did not attempt to introduce into the record, did not establish a dishonesty allegation and has limited persuasive value. (See Palo Verde Unified School District (2013) PERB Decision No. 2337, p. 22 [uncorroborated hearsay testimony about complaints of employee’s alleged inappropriate workplace behavior was insufficient to establish employer’s affirmative defense].)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.06000 – Inefficiency or Incompetence

Employer argued that the prime factors that disqualified employee for promotive position were his temperament, performance during the interview, work ethic, and work product. The record only showed employee being argumentative, or having conflicts with others, while performing union duties; the ALJ found no substance to allegations of employee creating workplace conflicts that did not implicate his union duties. Stewards, in fulfilling a union’s statutory duty to represent all bargaining unit employees, are often called on “to resolve divergent and often conflicting interests,” and in that role “may resort occasionally during representational meetings to intemperate speech or less than civil conduct.” (State of California (Department of Corrections & Rehabilitation) (2012) PERB Decision No. 2282-S, p. 7.) Because stewards’ representational duties often bring them into conflict with management, precedent affords them “significant latitude in their representational speech and conduct.” (Ibid.; see also Mount San Jacinto Community College District (2018) PERB Decision No. 2605, p. 7 [individual employee’s criticism of management or working conditions is protected activity when its purpose is to advance other employees’ interests or when it is a logical extension of group activity].) Employer did not identify specific facts the ALJ overlooked tending to show workplace conflicts unrelated to employee’s union duties. Moreover, interview panel members’ opinions about employee’s temperament were likely based at least in part on conflict arising from the inherently conflictual job of representing employees in complaints against management, as interview panel members and other decision-makers were aware of employee’s frequent and public representational activities on behalf of himself and others.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

While the technical rules of evidence do not apply in a PERB formal hearing, hearsay cannot form the sole basis for a material factual finding. (County of Santa Clara (2019) PERB Decision No. 2670-M, p. 21, fn. 23 [a factual finding cannot be based solely on uncorroborated hearsay that does not satisfy one of the statutory exceptions].)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

Witness’s testimony against the interests of her employer weighs in favor of crediting her testimony.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

The witness’s “bias, interest or motive” is relevant in determining the credibility of testimony. (State of California (Department of Corrections and Rehabilitation) (2012) PERB Decision No. 2285-S, p. 10, fn. 15, citing Evid. Code, § 780.) The “existence or nonexistence of facts testified to” also is a relevant factor in determining the credibility of witness testimony. (Ibid.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

Although the Board reviews exceptions to a proposed decision de novo, to the extent that a proposed decision adequately addresses issues raised by certain exceptions, the Board need not further analyze those exceptions. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.) The Board also need not address alleged errors that would not impact the outcome. (Ibid.) To the extent an ALJ assesses credibility based upon observing a witness in the act of testifying, we defer to such assessments unless the record warrants overturning them. (Los Angeles Unified School District (2014) PERB Decision No. 2390, p. 12.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.14000 – Informational Briefs

The California State Personnel Board (SPB) requested leave to submit an informational brief about the ALJ’s proposed remedy. The Board granted the request and at the same time provided employee organizations representing state employees the opportunity to submit informational briefs about the remedy.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.01000 – In General

The Legislature has vested PERB with broad powers to remedy unfair practices or other violations of the Dills Act and to take any action the Board deems necessary to effectuate the Act’s purposes. (Dills Act, § 3514.5, subd. (c); Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 198 (Pacific Legal Foundation); Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189-190; City of Palo Alto (2019) PERB Decision No. 2664-M, p. 2 (Palo Alto); City of San Diego (2015) PERB Decision No. 2464-M, p. 42, affirmed sub nom. Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 920.) An appropriate remedy must fully compensate affected employees for harms caused by an unfair practice. (Palo Alto, supra, PERB Decision No. 2664-M, p. 3; City of Pasadena (2014) PERB Order No. Ad-406-M, p. 13.) The Board therefore crafts make-whole remedies, including “back pay, front pay or other forms of compensation,” as necessary “to make injured parties and/or affected employees whole.” (Sonoma County Superior Court (2017) PERB Decision No. 2532-C, p. 40; cf. Local Joint Executive Bd. of Las Vegas v. NLRB (9th Cir. 2018) 883 F.3d 1129, 1139-1140.) In addition to these restorative and compensatory functions, a Board-ordered remedy should also serve as a deterrent to future misconduct, so long as the order is not a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act. (Palo Alto, supra, PERB Decision No. 2664-M, p. 3; City of San Diego, supra, PERB Decision No. 2464-M, pp. 40-42; City of Pasadena, supra, PERB Order No. Ad-406-M, pp. 12-13.)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.01000 – In General

The Board orders its standard remedies to the extent needed to make whole a state employee who has proven discrimination or retaliation. In State of California (Department of Corrections) (2001) PERB Decision No. 1435-S (Department of Corrections), for instance, PERB found that the State retaliated against a union steward for engaging in protected activities when it investigated him, reprimanded him, and rescinded his promotion to chief engineer, a civil service position which he had accepted but not yet assumed. (Id., adopting proposed decision at pp. 26-48.) By the time of the Board’s decision, the State had long since filled the chief engineer position, posing a remedial challenge. The Board concluded that it would not effectuate the purpose of the Dills Act to have the discriminatee displace the ultimately successful applicant. (Id., adopting proposed decision at pp. 48-49.) To effectuate the purposes of the Dills Act and make whole the discriminatee, the Board directed the State to reimburse him for all losses until he was placed in a comparable position “acceptable to him,” which the Board found to be the next available chief engineer position. (Id., adopting proposed decision at pp. 49-50.) The Board disfavors removing an innocent incumbent chosen over a discriminatee. (Department of Corrections, supra, PERB Decision No. 1435-S, pp. 49-50; State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S, pp. 18-19, overruled in part on other grounds by County of Santa Clara (2017) PERB Decision No. 2539-M [where State denied promotional opportunity in park ranger training program due to union steward’s protected activities, Board declined to remove incumbent employee awarded the opportunity and instead directed State to offer steward next available comparable opportunity].)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.01000 – In General

Reversing a discriminatory refusal to promote does not run afoul of the merit principle; rather, it is discrimination that frustrates the merit principle. PERB has considerable discretion in crafting a remedy to fit the circumstances of each case. Combining back pay with front pay is typically warranted where there is no vacancy into which an employee can immediately be placed. (See Horsford v. Bd. of Trustees of Cal. State Univ. (2005) 132 Cal.App.4th 359, 388; accord State of California (Department of Corrections) (2001) PERB Decision No. 1435-S, p. 50.) Having considered all competing factors, PERB directed the employer to reclassify the employee retroactively to the AGPA classification, assign him appropriate duties at San Quentin until the position at San Quentin which the employee was discriminatorily denied next becomes vacant, and place the employee in that position if he is still an active State employee at that time. PERB thus accomplished both back pay and front pay through retroactive reclassification, without specifying what AGPA position or duties the employer must provide the employee, other than that they be appropriate AGPA duties that the employee can reasonably learn to perform. PERB noted that it fashioned the remedy in this manner primarily because the AGPA classification comprises a diverse swath of both administrative and programmatic roles, and declining to place the employee automatically in the next available AGPA position avoids the risk of placing the employee in a job he cannot reasonably be expected to learn or perform.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

It was not clear from the proposed decision why the ALJ did not award interest. The Board found no cause to depart from its well-established precedent regarding back pay interest. (Sonoma County Superior Court (2017) PERB Decision No. 2532-C, p. 42 [“Back pay, front pay and/or other monetary awards, plus interest, are an ordinary part of Board-ordered remedies where necessary to compensate injured parties or affected employees for out-of-pocket losses caused, in whole or in part, by an unfair practice”]; State of California (Department of Corrections) (2001) PERB Decision No. 1435-S, at p. 49; Regents of the University of California (1997) PERB Decision No. 1188-H, pp. 33-35.)