STATESTATE OFOF CALIFORNIACALIFORNIA DECISIONDECISION OF OF THE THE PUBLICPUBLIC EMPLOYMENT EMPLOYMENT RELATIONS RELATIONS BOARD BOARD KEVINKEVIN J. J. REDDINGTON,REDDINGTON, ChargingCharging Party, Party, CaseCase No. SA-CE-1435-S vv. PERBPERB Decision No. No. 1690-S SeptemberSeptember 17, 17, 2004 2004 STATESTATE OFOF CALIFORNIA ( ( DEPARTMENT DEPARTMENT OF OF FORESTRY & FIREFIRE PROTECTION),PROTECTION), Respondent.Res ondent. Appearance:Appearance: KevinKevin J. J. Reddington, Reddington, on on his his own own behalf. behalf. BeforeBefore Duncan,Duncan, Chairman;Chairman; WhiteheadWhitehead andand Neima,Neima, Members.Members. DECISION DUNCAN,DUNCAN, Chairman: Chairman: This This case case is is before before the the PublicPublic EmploymentEmployment RelationsRelations BoardBoard (PERB(PERB oror Board)Board) onon appealappeal byby KevinKevin J. J. ReddingtonReddington (Reddington)(Reddington) ofof a a BoardBoard agent'sagent's dismissaldismissal ((attached) attached) of hishis unfair practicepractice charge. charge. Reddington hadhad filed anan unfair practicepractice chargecharge againstagainst thethe State ofof California California (Department(Department of ForestryForestry & FireFire Protection)Protection) (State)(State) alleging a violation ofof the the RalphRalph C.C. Dills Dills 1 Act (Dills(Dills Act) Act) section section 3519(a) 3519(a) byby the the State's State's actions actions inin terminating terminating his his employment, employment, takingtaking otherother adverseadverse actions against him,him, and creatingcreating aa hostile hostile workwork environment. The Board has reviewedreviewed the entire record in thisthis case,case, including thethe initialinitial and and amended amended unfairunfair practice practice charge, charge, warningwarning andand dismissaldismissal lettersletters and Reddington's appeal. TheThe Board finds thethe warning and dismissal letters toto bebe withoutwithout prejudicial error error and and adoptsadopts themthem as thethe decisiondecision ofof the the BoardBoard itself,itself, subject subject to to the the discussiondiscussion below. 1 TheThe DillsDills Act Act is is codified codified at at Government Government Code Code section section 3512, 3512, etet seq.seq. UnlessUnless otherwiseotherwise indicated,indicated, allall statutorystatutory referencesreferences hereinherein areare to the Government Code.Code. DISCUSSIONDISCUSSION To demonstrate aa violationviolation of Dills Act Act section section 3519(a), 3519(a), the the chargingcharging party party mustmust showshow that:that: (1)(1) the the employee employee exercisedexercised rightsrights underunder the Dills Act;Act; (2) (2) the the employer employer had had knowledgeknowledge ofof thethe exerciseexercise of those those rights; andand (3)(3) thethe employeremployer imposed imposed or or threatened threatened toto imposeimpose reprisals,reprisals, discriminated oror threatenedthreatened to discriminate, oror otherwise otherwise interferedinterfered with, with, restrained restrained or or coerced coerced thethe employeesemployees because of of the the exercise exercise of of those those rights. rights. (Novato(Novato Unified SchoolSchool DistrictDistrict (1982) (1982) PERBPERB DecisionDecision No.No. 210210 (Novato);(Novato); CarlsbadCarlsbad Unified SchoolSchool DistrictDistrict (1979) (1979) PERBPERB DecisionDecision No.No. 89.)89.) AlthoughAlthough the the timingtiming of of the the employer's employer's adverse adverse actionaction inin close close temporaltemporal proximityproximity to to the the employee'semployee's protectedprotected conduct isis anan important factorfactor (North(North Sacramento Sacramento SchoolSchool DistrictDistrict (1982) (1982) PERBPERB DecisionDecision No. No. 264 264 (North (North Sacramento)), Sacramento)), it it does does not, not, without without more, more, demonstrate demonstrate the the necessarynecessary connection oror "nexus""nexus" betweenbetween the the adverseadverse actionaction andand thethe protectedprotected conduct.conduct. (Moreland(Moreland ElementaryElementary SchoolSchool DistrictDistrict (1982) (1982) PERB PERB Decision Decision No. No. 227.) 227.) Facts Facts establishing establishing one one or more of thethe followingfollowing additional additional factors factors must must also also be be present:present: (1)(1) the the employer's employer's disparate disparate treatmenttreatment of thethe employee (State ofof California (Department(Department ofof Transportation) Transportation) (1984)( 1984) PERBPERB Decision No.No. 459-S); 459-S); (2) (2) the the employer's employer's departure departure from from established established procedures procedures and and standards standards whenwhen dealingdealing withwith thethe employeeemployee (Santa ClaraClara UnifiedUnified School District (1979)(1979) PERBPERB DecisionDecision No.No. 104.);104.); (3)(3) the the employer'semployer's inconsistentinconsistent oror contradictorycontradictory justifications for for its its actions actions (State (State ofof CaliforniaCalifornia (Department (Department of of Parks Parks andand Recreation)Recreation) (1983)(1983) PERBPERB DecisionDecision No.No. 328-S;328-S; (4)(4) thethe employer'semployer's cursorycursory investigationinvestigation ofof the the employee'semployee's misconduct;misconduct; (5)(5) thethe employer'semployer's failure toto offeroffer thethe employeeemployee justification at at the the timetime it it took took action action or or the the offering offering of of exaggerated, exaggerated, vague, vague, oror ambiguousambiguous reasons;reasons; (6) employer animosity towardstowards unionunion activistsactivists (Cupertino(Cupertino Union Union Elementary School District) (1986)(1986) PERBPERB DecisionDecision No.No. 572.);572.); oror (7) (7) anyany otherother factsfacts whichwhich mightmight demonstrate demonstrate thethe employer'semployer's unlawful motive.motive. (Novato;(Novato; North North Sacramento.) Sacramento.) 22 Evidence of adverse actionaction is also requiredrequired toto support a claimclaim of discriminationdiscrimination or or reprisalreprisal under under thethe NovatoNovato standard.standard. (Palo(Palo VerdeVerde UnifiedUnified School School District District (1988) (1988) PERB PERB Decision No.No. 689.)689.) InIn determining determining whether whether such such evidence evidence is is established, established, the the Board Board uses uses anan objective test and willwill notnot relyrely uponupon the subjective reactionsreactions ofof thethe employee.employee. (Ibid.)(Ibid.) InIn a a laterlater decision,decision, thethe Board further explainedexplained that:that: The test which mustmust bebe satisfiedsatisfied isis notnot whetherwhether the the employeeemployee foundfound thethe employer'semployer's action action to to be be adverse, adverse, but but whether whether a a reasonable personperson underunder thethe samesame circumstancescircumstances would would consider the action toto havehave anan adverseadverse impactimpact on on the the employee's employee's employment. [Newark[Newark Unified Unified School School District District (1991) (1991) PERB PERB DecisionDecision No.No. 864;864; emphasisemphasis added;added; fn. omitted.]omitted.] The Board agent advised Reddington thatthat toto meetmeet thisthis testtest underunder thethe NovatoNovato standard standard he he would needneed to includeinclude moremore thanthan justjust a a statementstatement that there was a "premeditated conspiracy"conspiracy" against him. TheThe Board Board agent agent advisedadvised thatthat hehe mustmust showshow protected conduct, that the employer knew ofof the the conduct conduct and and that that there there was was aa nexusnexus between between the the protected protected conduct conduct and and any any adverseadverse actions. AlthoughAlthough Reddington Reddington filed filed an an amended amended claimclaim hehe diddid notnot includeinclude evidenceevidence of protected conductconduct prior to to events events hehe believedbelieved werewere adverseadverse actionsactions nornor diddid his his chargescharges containcontain evidence that the employer knew of any any protectedprotected activity or or evidence evidence of of a a nexus nexus betweenbetween adverse actions and protected conduct. We believebelieve thatthat ReddingtonReddington has has failedfailed to to state state a a prima prima facie facie case case and and the the case case mustmust bebe dismissed.dismissed. ORDER TheThe unfairunfair practicepractice chargecharge in CaseCase No. SA-CE-1435-S is hereby DISMISSED WITHOUT LEAVELEAVE TOTO AMEND.AMEND. Members Whitehead and NeimaNeima joinedjoined in thisthis Decision.Decision. 33 (~_ STATE=S=T=A=T=E=O=F=C=A=L=IF=O=RN=I=A=====·================--r OF CALIFORNIA ·:oLDOLD SCHWARZENEGGER, GovernorGovernor PUBLIC EMPLOYMENT EMPLOYMENT RELATIONS RELATIONS BOARD BQARD SacramentoSacramento Regional Regional Office Office 103118thStreet1031 18th Street Sacramento, CACA 95814-417495814-4174 Telephone: (916) 327-8383327-8383 PER.B Fax: (916)(916) 327-6377327-6377 AugustAugust 2, 2, 20042004 Kevin J.J. Reddington 5649 Monte Corita Circle Citrus Heights, CA 95621 Re: KevinKevin J. J. Reddington Reddington v. v. State State ofof California California (Department (Department ofof Forestry Forestry && FireFire Protection) Protection) Unfair Practice Practice ChargeCharge No.No. SA-CE-1435-SSA-CE-1435-S DISMISSAL LETTER LETTER DearDear Mr. Reddington:Reddington: TheThe above-referencedabove-referenced unfairunfair practice charge waswas filedfiled with thethe Public EmploymentEmployment