Centinela Valley Union High School District (Garcia) (PERB 1230E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VICTORIA 	GARCIA,
Charging 	Party,
v.
CENTINELA VALLEY UNION HIGH SCHOOL
DISTRICT,
Respondent.
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Case No. 	LA-CE-3766
PERB Decision No. 	1230
November 	13, 	1997
Appearances: 	Victoria Garcia, 	on her own behalf; 	Atkinson,
Andelson, 	Loya, 	Ruud & Romo by Steven J. 	Andelson, 	Attorney, 	for
Centinela Valley Union High 	School 	District.
Before Johnson, 	Dyer, 	and Jackson, Members.
DECISION
DYER, 	Member: 	This 	case 	comes before the Public Employment
Relations Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of Victoria Garcia's 	(Garcia) 	unfair practice charge.
Garcia's 	charge 	alleges 	that 	the 	Centinela Valley Union High
School District 	(District) 	violated section 3543.5(a) 	of 	the
Educational 	Employment Relations Act 	(EERA)1 when it 	failed to
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 provides, 	in relevant part:
It 	shall be unlawful 	for a public 	school
employer 	to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
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hire 	Garcia 	and gave 	her an apparently unfavorable 	evaluation.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters, 	Garcia's appeal, 	and the District's response thereto.
The Board 	finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and adopts 	them as 	the 	decision 	of 	the 	Board
itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-3766 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Jackson 	joined 	in 	this 	Decision.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
July 23, 	1997
Victoria P. Garcia
Re: 	Victoria P. 	Garcia v. 	Centinela Valley Union High School
District
Unfair Practice Charge No. 	LA-CE-3766
DISMISSAL AND REFUSAL TO ISSUE COMPLAINT LETTER
Dear Ms. Garcia:
In this charge filed February 24, 	1997, 	you allege that the
Centinela Valley Union High School District 	(Centinela Valley or
District) 	acted unlawfully and violated Government Code section
3543.5 of the Educational Employment Relations Act 	(EERA). 	Your
charge alleges that 	"The Assistant Sup. 	has decided to act in a
prejudicial way. 	She only acts on letters and uses her position
to demonstrate what a 	'predetor'(sic) 	is all about. 	She has no
business on giving references (sic)." Also, you believe the
District has made improper accusations against you.
I indicated to you, 	in my attached letter dated July 15, 	1997,
that 	the above-referenced charge did not 	state a prima facie
case. 	You were advised that, 	if there were any factual
inaccuracies or additional 	facts which would correct the
deficiencies explained in that letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to July
22, 	1997, 	the charge would be dismissed.
I have not received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons contained in my July 15 	letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of the charge by filing
an appeal to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. Code of Regs., 	tit. 	8,
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sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 shall apply.
The Board's address is:
LA-CE-3766
Dismissal 	Letter
July 23, 	1997
Page 2
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
If you file a timely appeal of the refusal 	to issue a complaint,
any other party may file with the Board an original and five
copies of a statement in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All documents authorized to be 	filed herein must also be 	"served"
upon all parties to the proceeding, 	and a 	"proof of service"
must accompany each copy of a document served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 for the required contents and a sample form.) 	The
document will be considered properly 	"served" 	when personally
delivered or deposited in the first-class mail, 	postage paid and
properly addressed.
Extension of Time
A request for an extension of time, 	in which to file a document
with the Board itself, 	must be in writing and filed with the
Board at 	the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of service of the request upon each
party. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
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LA-CE-3766
July 23, 	1997
Page 3
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By
MARC S. HURWITZ
Regional Attorney
Attachment
cc: 	Steven Andelson, Esq

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
July 15, 	1997
Victoria P. 	Garcia
Re: 	Victoria P. 	Garcia v. 	Centinela Valley Union High School
District. 	Unfair Practice Charge No. 	LA-CE-3766
WARNING 	LETTER
Dear Ms. Garcia:
In this charge filed February 24, 	1997, 	you allege that the
Centinela Valley Union High School District 	(Centinela Valley or
District) 	acted unlawfully and violated Government 	Code section
3543.5 of the Educational Employment Relations Act 	(EERA). 	Your
charge alleges that 	"The Assistant Sup. 	has decided to act in a
prejudicial way. 	She only Acts on letters and uses her position
to demonstrate what a 	'predetor' 	(sic) 	is all about. 	She has no
business on giving refences 	(sic)." 	Also, 	you believe the
District has made improper accusations against you.
Your charge goes on to state:
First, 	when in July in 1994, 	when I went or drove to
Lawndale, 	I applied for a substitute position. 	The
district did not 	contact me and the lady in personnel
said, 	my appl. 	will not be processed because I did not
have a regular credential.
Second, 	this District has the highest number of
teachers on waivers. That is, Mrs. Daniels 	(sic) 	is one
of 	the Administrators that mis-use 	(our tax-moneies)
(sic) 	to hire non-college Spanish persons to do aide
work. 	That's to assist teachers who do not posses
(sic) 	the Spanish language. 	Thirdly, 	not only has she
instituted a backward system, 	were 	(sic) 	ill prepared
person go to the high school classes, 	but uses aides as
double jeopardy to spy on the regular instructors and
harrassed 	(sic) 	teachers. 	-
Thirdly, Mrs. Daniels 	(sic) 	claims to be ill since
1989, 91, 92, 93, 94 	and so on, 	but when it comes to
hurt people she's fine.
Fourth, 	I did not work under Mrs. Daniels 	(sic),
therefore, 	She has no business, 	touching my files, 	or
to give or write negative references, 	with malice
disposition.
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Fifth, 	everytime had requested to see Mrs. 	Daniels
(sic), 	she says she's too, 	too, 	too busy, 	though she
made 	time 	to 	threaten and deny me 	the 	right 	to 	contact
any 	Board Member 	of 	Centinela.
By your letter dated January 29, 	1997 	(the 	letter 	indicates 	1996,
probably in error) 	to J. 	Darlene Daniel, 	Asst. 	Superintendent,
Office 	of 	Human Resources 	at 	the District, 	you stated:
Today, 	I 	called at 	10:30 	a.m. 	and was 	informed that you
had given 	orders 	that 	I 	will 	not 	be placed 	on 	the
substitute 	list. 	I would like 	to set a time Tuesday
and Wednesday 	to meet 	with you.
Secondly, 	why my evaluation 	or 	form of 	reference was
not mail 	(sic) 	to me. 	LAUSD has written to me
indicating 	it 	was 	an unsatisfactory 	evaluation.
Could 	I 	please 	hear 	from please 	(sic) 	since 	I'm on my
way to Sacramento to file a complain 	(sic) .
By your letter to Dr. 	John L. 	Rindone, 	Interim Superintendent,
dated January 29, 	1997 	(the letter indicates 	1996, 	probably in
error) 	you stated:
My name 	is Victoria Garcia. 	In 	1990-1991 worked at
Hawthorne.
Need your assistance 	on 	the 	following 	on 	the 	following:
a) 	To get 	an appointment 	to 	see Darlene
Daniels 	(sic) 	because 	I must know whether Ms.
Daniels 	(sic) 	is 	issuing the wrong
information 	to my prospective 	employers.
b) 	Whether Ms. 	Daniels 	(sic) 	[the letter ends
here].
Daniel 	responded by 	letter 	to you dated 	February 4, 	1997 	as
follows:
I 	am writing you 	in 	response 	to your 	letter 	dated
January 29, 	1997. 	In reviewing your personnel 	file,
there 	have 	been negative 	evaluations 	submitted 	to your
file. 	Due 	to 	the negative 	evaluations based on your
recent1 job performance, 	the District has 	removed your
name 	from the District's 	sub list. 	Therefore, 	the
District 	will 	no 	longer 	call 	you 	for subbing
1According to 	the District, 	you worked 	for the District
during 	the 	1990-91 	and 1993-94 	school 	years.
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assignments. 	Secondly, 	I received a form letter from
LAUSD 	[Los Angeles Unified School District] 	requesting
me to complete and return to them the job performance
evaluation on your performance with CVUHSD. 	The job
performance evaluation is meant 	to be confidential
between employers and is not 	to be shared with the
employee.
In addition, 	I received a phone call yesterday from
Board Member, 	Mario Chiappe concerning your telephone
calls to his home. 	He has requested to the
Superintendent's office, 	as well as my office, 	that he
not 	receive calls 	from applicants who are seeking
employment with Centinela Valley Union High School
District. 	Maybe you are not aware that the Bylaws of
the Board do not govern individual Board Members 	to be
involved with the employment of any employees 	(i.e.,
Certificated, 	Classified, 	Substitutes and/or
Consultants). 	Should you have questions concerning
this matter, please contact me at 	(310) 	970-7705.
During the 1990/91 school year, 	you worked at Hawthorne High
School as a first year probationary teacher. 	You were non-
reelected before June 1991. 	The first semester you were a
Spanish Teacher. 	The second semester, 	you taught English as a
second language 	(ESL). 	In July or August 1996, 	you applied for a
substitute teaching job with the District. 	You believe that 	in
December 1996, 	you wrote to the District asking for a chance to
substitute. 	You indicated that 	"Doors were closed in August
1996." 	You also visited the District 	in person in December 1996.
According to the District, 	you also substituted for one to two
days at Lloyd High School during the 1993-94 school year, 	where
there was some problem noted by the District, 	involving your
conduct 	in or about May 1993. 	I note that you deny working for
the District during the 1993-94 school year. 	At this stage, 	your
allegations are being taken as true. 	According to the District,
you listed Daniel as a reference for your application in or about
1996 	to work at LAUSD. 	LAUSD sent Daniel an evaluation form.
This 	form was 	to be for employer use only and was confidential.
The District 	contends Daniel 	truthfully answered the questions on
the 	form and sent 	it back to LAUSD 	(reflecting your work history
with Centinela Valley as not satisfactory).
Based on the above information, 	the charge fails to state a prima
facie violation for the following reasons. 	EERA section
3541.5(a)(1) 	provides that the Board shall not, 	"Issue a
complaint 	in respect 	of any charge based upon an alleged unfair
practice occurring more than six months prior to the 	filing of
the charge." 	It is your burden, 	as the charging party to
demonstrate that 	the charge has been timely filed. 	(See
Tehachapi Unified School District 	(1993) 	PERB Decision No. 	1024.)
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Therefore, 	all 	allegations 	of 	unlawful 	conduct 	occurring prior to
August 24, 	1996	- 	, 	are untimely and will be dismissed. 	In
addition, 	you provided no 	specific 	dates 	for unlawful 	conduct by
the District 	occurring 	in or about 	August 	1996, 	or 	later on
involving your application at 	LAUSD. 	Without 	this 	information,
it 	cannot 	be 	determined whether 	conduct 	by 	the District 	involving
these matters 	is 	timely.
A charging party must allege the 	"who, 	what, 	when, 	where and how"
of 	an unfair practice. 	(United Teachers-Los Angeles 	(Ragsdale)
(1992) 	PERB Decision No. 	944.) 	Mere legal 	conclusions are
insufficient. 	(See 	State 	of 	California 	(Department 	of 	Food and
Agriculture) 	(1994) 	PERB Decision No. 	1071-S. 	Your charge does
not 	provide 	the 	necessary 	facts 	to 	demonstrate 	the 	elements 	of 	a.
prima 	facie 	discrimination case, 	as 	described below.
EERA section 3541.5(a) 	provides 	that 	"Any employee, 	employee
organization, 	or employer shall 	have 	the 	right 	to 	file 	an unfair
practice 	charge." 	At 	EERA section 	3543.5(a) 	where unlawful
retaliation is 	described, 	I note 	that 	the 	term 	"employee"
includes 	an applicant 	for employment 	or 	reemployment.
To demonstrate a violation of 	EERA section 3543.5(a), 	the
charging party must 	show that: 	(1) 	the 	employee 	exercised rights
under EERA; 	(2) 	the employer had knowledge 	of 	the exercise of
those 	rights; 	and 	(3) 	the employer 	imposed or threatened to
impose 	reprisals, 	discriminated or 	threatened 	to discriminate,
or 	otherwise 	interfered with, 	restrained or 	coerced 	the 	employees
because 	of 	the 	exercise 	of 	those 	rights. 	(Novato Unified School
District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; 	Department of Developmental
Services 	(1982) 	PERB Decision No. 	228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
Although 	the 	timing 	of 	the 	employer's 	adverse 	action 	in 	close
temporal 	proximity 	to 	the 	employee's 	protected 	conduct 	is 	an
important factor, 	it does not, 	without more, 	demonstrate the
necessary 	connection or 	"nexus" 	between the 	adverse 	action and
the 	protected 	conduct. 	(Moreland Elementary School 	District
(1982) 	PERB Decision No. 	227.) 	Facts 	establishing one or more
of 	the 	following 	additional 	factors must 	also be present:
(1) 	the employer's disparate treatment of the employee; 	(2) 	the
employer's 	departure 	from established procedures 	and 	standards
when dealing with the 	employee; 	(3) 	the employer's 	inconsistent
or contradictory justifications 	for its actions; 	(4) 	the
employer's 	cursory 	investigation 	of 	the 	employee's 	misconduct;
(5) 	the employer's 	failure 	to offer the employee 	justification at
the 	time 	it 	took action or the 	offering of 	exaggerated, 	vague, 	or
ambiguous 	reasons; 	or 	(6) 	any other facts which might demonstrate
the 	employer's unlawful motive. 	(Novato Unified School 	District.
supra: 	North Sacramento School District 	(1982) 	PERB Decision
No. 	264.) 	As presently written, 	this 	charge fails 	to demonstrate
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any of these 	factors and therefore does not 	state a prima facie
violation of EERA section 3543.5(a).
More specifically, 	your charge does not 	clearly demonstrate that
you engaged in protected activity prior to the alleged adverse
actions, 	once you became an applicant for reemployment in 1996-
97. 	Also, 	it does not appear that the alleged adverse actions,
including the District's February 1997 admonition for you not to
contact Board Members regarding employment, 	were unlawfully
motivated. 	The matter of your contacting the Board Member is
governed by the Bylaws of the District. 	Thus, 	the charge does
not 	clearly demonstrate that 	the adverse actions were 	taken
because of any protected activity 	(nexus).
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this letter or additional 	facts which would correct 	the
deficiencies explained above, 	please amend the charge. 	The
amended charge 	should be prepared on a standard PERB unfair
practice charge 	form, 	clearly labeled First Amended Charge,
contain all the facts and allegations you wish to make, 	and
be signed under penalty of perjury by the charging party. 	The
amended charge must be served on the respondent2 and the original
proof of service must be filed with PERB. . If I do not receive an
amended charge or withdrawal from you before July 22, 	1997, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3543.
Sincerely,
Marc S. Hurwitz
Regional Attorney
2The District's counsel in this matter is Steven J.
Andelson, Esq. of Atkinson, Andelson, Loya, Ruud & Romo, 	in
Cerritos, California.