State of California (Department of Youth Authority) (PERB 1403S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
YOUTH AUTHORITY),
Respondent.
)
)
) 	Case No. 	SA-CE-1201-S
PERB Decision No. 	1403-S
September 12, 	2000
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Appearances: 	Marcia Mooney, 	Senior Labor Relations
Representative, 	for California State Employees Association; 	State
of 	California 	(Department 	of 	Personnel Administration) 	by Wendi
L. 	Ross, 	Labor Relations Counsel, 	for State of California
(Department of Youth Authority).
Before Dyer, 	Amador and Baker, 	Members.
DECISION
AMADOR, 	Member: 	This 	case 	comes before 	the 	Public
Employment 	Relations 	Board 	(Board) 	on appeal 	by the 	California
State Employees Association 	(CSEA) 	to an administrative 	law
judge's 	(ALJ) 	proposed decision 	(attached). 	The unfair practice
charge 	alleged 	that 	the 	State 	of 	California 	(Department 	of 	Youth
Authority) 	(CYA or State) 	violated section 3519(a) 	and 	(b) 	of the

Ralph 	C. 	Dills 	Act 	(Dills A c t ) 1 in various 	ways 	with 	regard 	to
CYA 	employee 	Rosielyn 	Dyer-Browhaw.
After 	reviewing 	the 	entire 	record, 	including 	the 	unfair
practice 	charge, 	the 	ALJ's 	proposed 	decision, 	CSEA's 	exceptions
and 	the 	State's 	response, 	the 	Board 	hereby 	affirms 	the 	proposed
decision 	as 	the 	decision 	of 	the 	Board 	itself.
ORDER
The 	unfair 	practice 	charge 	and 	complaint 	in 	Case
No. 	SA-CE-1201-S 	are 	hereby DISMISSED WITHOUT 	LEAVE 	TO 	AMEND.
Members 	Dyer 	and 	Baker 	joined 	in 	this 	Decision.
The 	Dills 	Act 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq. 	Section 3519 	states, 	in pertinent 	part:
It 	shall 	be 	unlawful 	for 	the 	state 	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.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT 	OF
YOUTH AUTHORITY),
Respondent.
)
)
)
) 	Unfair 	Practice
Case No. 	SA-CE-1201-S
PROPOSED DECISION
(4/6/2000)
)
)
)
)
)
)
)
Appearances: 	Marcia Mooney, 	Labor Relations Representative, 	for
California 	State Employees Association; 	State 	of 	California
(Department of 	Personnel Administration) 	by Wendi 	Ross, 	Labor
Relations 	Counsel, 	for State 	of 	California 	(Department 	of 	Youth
Authority).
Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On January 7, 	1999, 	the California State Employees
Association 	(CSEA), 	filed an unfair practice 	charge with the
Public 	Employment 	Relations 	Board 	(PERB or Board) 	against 	the
State of California 	(Department of Youth Authority) 	(CYA). 	On
March 8, 	1999, 	PERB's Office of the General Counsel, 	after an
investigation of 	the 	charge, 	issued a 	complaint 	against 	CYA
alleging violations of the Ralph C. 	Dills Act 	(Dills Act),
subdivisions 	(a) 	and 	(b) 	of section 3519.'
1The Dills Act 	is 	codified 	in the 	Government 	Code
(commencing with section 3512 	et 	seq). 	All 	section references,
unless otherwise noted, 	are 	to the Government 	Code. 	Subdivisions
(a) 	and 	(b) 	of 	section 3519 	state that 	it 	shall be unlawful 	for
the 	state 	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. 	. 	. 	.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
On April 	16, 	1999, 	the respondent 	filed its answer to the
complaint 	denying 	all 	material 	allegations 	and 	asserting
affirmative 	defenses.
A 	formal 	hearing was 	held before 	the 	undersigned on July 	14,
August 	9, 	September 13 and 21, 	and November 18, 	1999. 	At the
conclusion of 	the hearing, 	transcripts were prepared, 	briefs were
filed and 	the 	case 	was 	submitted 	for a 	proposed decision on
March 10, 	2000.
INTRODUCTION
CSEA alleges 	that Rosielyn Dyer-Browhaw 	(Browhaw) 	was
discriminated against 	by CYA when 	it 	(1) 	initiated an 	internal
affairs 	investigation 	against 	her with 	insufficient
justification, 	(2) 	failed to select her for promotion to a
position of assistant principal, 	(3) 	denied her educational 	leave
opportunities, 	(4) 	required her to receive permission from a co-
worker to obtain classroom supplies, 	and 	(5) 	had 	insufficient
justification 	to 	give 	her 	an annual 	review with 	low performance
evaluation marks.
CYA insists 	that 	(1) 	there was 	sufficient 	evidence 	to
justify the 	initiation of the 	subject 	investigation, 	(2) 	other
candidates 	were 	better qualified 	for 	the 	assistant 	principal
position(s), 	(3) 	there was sufficient justification for the
22

educational 	leave denial, 	(4) 	the co-worker was the coordinator
of 	the 	subject 	program and 	therefore 	was 	responsible 	for
monitoring its 	financial 	expenditures, 	and 	(5) 	Browhaw's
performance 	evaluation marks 	accurately 	reflected 	her
performance.
FINDINGS 	OF 	FACT
Jurisdiction
The 	parties 	stipulated that 	the 	charging party 	is 	a
recognized 	employee 	organization and 	the 	respondent 	is 	a 	state
employer, 	within the meaning of the Dills Act.
Protected Activities 	and 	Employer 	Knowledge 	Thereof
During the 	time of 	the 	subject 	events, 	Browhaw was 	a 	teacher
at 	the Northern California Youth Center 	(NCYC) 	in Stockton,
California, 	a 	CYA facility. 	She was 	assigned to the 	Karl 	Holton
School 	(KHS). 	From September 1994 	to the present, 	she has been a
CSEA 	job 	steward.
In 	1994 	CYA was 	attempting 	to 	implement 	a 	"Design 	for
Living" 	(DFL) 	program at 	KHS. 	Browhaw openly and vocally opposed
this program, 	which 	included religious 	overtones. 	She 	and other
KHS 	teachers were plaintiffs 	in a 	lawsuit 	that 	challenged 	such
implementation on the 	grounds 	that 	it 	violated 	the 	constitutional
separation of 	church and state. 	Eventually, 	the 	court 	of 	appeal
ruled 	in 	the plaintiff's 	favor. 	As 	a result, 	CYA deleted
specific 	references 	to a deity in the DFL program. 	However,
Browhaw believes 	the program continues 	to 	incorporate 	such
references, 	but 	in a more subtle manner.
W
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CYA managers, 	including Dorrine Davis 	(Davis), 	CYA's deputy
director 	and 	superintendent 	of 	education, 	attended many of 	the
court proceedings 	in this case and were, 	therefore, 	aware of
Browhaw's 	participation.
Browhaw believes 	that 	discrimination 	against 	her 	greatly
intensified 	after 	she was 	involved 	in this 	lawsuit. 	She 	also
asserts 	that 	the 	other plaintiffs 	experienced 	similar
discrimination.
On at 	least 	two 	separate 	occasions 	in 	1996, 	Browhaw met 	with
school administrators, 	including KHS Principal 	Sam Jones 	(Jones),
on behalf 	of 	the 	teaching 	staff 	with regard 	to 	a 	specific 	issue.
These 	meetings 	concerned the 	procedure 	by which 	security
personnel 	were 	available 	to provide 	bathroom breaks 	for 	teaching
personnel.
Throughout 	1996 	and 	1997 	Browhaw 	represented various 	fellow
employees with regard to a 	series of other grievances. 	However,
Jones 	states 	he 	does 	not 	recall 	Browhaw representing other
employees 	in the 	filing of 	grievances 	"and coming 	through me."
However, 	Manuel Ramon, 	Ed.D. 	(Dr. Ramon), 	KHS's vice principal in
1996 	and 1997, 	admitted he was made aware of Browhaw's union
status 	when he 	saw her name 	listed on one 	of 	CSEA's 	periodic
listings 	of 	certified 	stewards.
On December 5, 	1997, 	CSEA, 	on behalf of Browhaw, 	filed an
unfair practice 	charge with 	PERB 	against 	CYA alleging
discrimination against her 	for protected activities. 	The
protected 	activities 	she 	alleged 	included both 	her participation
44

in 	the 	DFL 	lawsuit 	and 	eight 	separate 	instances 	of 	representation
of 	other employees. 	The 	case was 	eventually settled.
Patsy Fine 	(Fine), 	KHS's assistant principal 	at that time,2
stated that 	she was 	not 	aware 	of 	Browhaw's 	union 	stewardship
until 	after 	she prepared her 	1998 	evaluation. 	Even 	then 	she was
only aware 	that 	Browhaw had gone 	to 	a 	two-day 	CSEA training
session. 	She was 	never aware 	of 	Browhaw's being 	involved 	in any
representation issues. 	She does admit, 	however, 	that when she
was working 	in CYA's 	Sacramento headquarters, 	prior to her KHS
employment, 	she became aware of 	the DFL lawsuit.
Browhaw's 	Initial 	Contact 	with Jones 	at 	KHS
Prior 	to her employment 	with CYA, 	Browhaw was 	a 	correctional
officer 	(CO) 	with the Department of Corrections 	(CDC). 	While in
that 	job, 	she met Jones, 	who was a CDC teacher. 	He was 	later
instrumental 	in her becoming a 	CYA teacher. 	When 	she 	came 	to
KHS, 	Jones 	complained to her of 	the problems 	and 	interference
that 	he 	believed was 	being directed toward 	the 	school 	by Harvey
Martinez 	(Martinez), 	CSEA's chief NCYC job steward. 	Initially
Browhaw aligned herself 	with Jones 	against 	CSEA, 	but 	eventually
began to believe he was 	lying to her. 	Later, 	she 	switched her
allegiance 	and became 	a CSEA steward. 	Once 	this 	occurred, 	she
believed 	Jones 	considered 	her 	an 	enemy.
Educational 	Leave 	Denial
CYA teachers 	accrue 	a right 	to educational 	leave 	at 	a 	rate
of 	eight 	hours 	per month. 	Many teachers 	are 	required to 	renew
2Fine became KHS's vice-principal 	on December 	15, 	1997.
5

their 	teaching 	credentials 	every 	five years. 	This 	leave permits
them to do so, 	at 	least partially, 	on state time. 	Browhaw
requested 	such 	leave 	for 	the 	1997-98 	fiscal 	year.
On May 23, 	1997, 	Jones notified Browhaw as 	follows:
No 	education 	leave will 	be 	approved 	for you
this 	coming fiscal year. 	Thirteen 	(13) 	staff
have 	requested this 	type 	leave. 	Some have
never taken it. 	Some need 	it 	to maintain
their 	credentials 	and 	some 	have 	only taken
education 	leave 	once 	during 	the 	past 	twelve
years.
We 	only have 	a 	limited number 	of 	hours
allotted [sic] 	to us 	for education leave.
Most 	staff 	in the 	areas 	underlined will 	get
some education leave. 	However, 	they may not
get 	all 	the 	time 	they have 	requested.
You may reapply 	for 	the 	1998-99 	fiscal 	year.
However, 	there 	is no guaranteed approval.
Education 	leave 	is 	not 	based on 	seniority.
[Emphasis 	in original.]
Browhaw 	interpreted 	this 	memo 	as 	denying 	her 	educational
leave 	for a two year period, 	even though it 	seems 	to deny such
leave 	for only one year. 	To 	support 	her contention, 	she verbally
referenced a 	second document. 	This 	other document 	was 	not
introduced 	into 	evidence.3
Browhaw's 	1996 	Punitive Action
On February 27, 	1996, 	D. 	Larry McGuire, 	Sr., 	acting
superintendent 	of 	KHS, 	caused a notice of 	adverse 	action to be
issued to Browhaw, 	temporarily reducing her 	salary by 	5 	percent
3A May 26, 	1998,leave denial 	letter 	from Jones 	seems 	to
suggest 	he would approve 	100 	hours of 	1998-99 	educational 	leave
for Browhaw 	if 	she 	resubmitted her 	request 	for 	the 	lesser number
of hours. 	In July 1998, 	Jones 	reminded her that 	she had not
resubmitted her new 	request 	for 	the 	upcoming 	academic 	year.
66

for six pay periods, 	from April 	1 	through September 30, 	1996.
The 	action accused Browhaw of 	using KHS's 	facsimile 	(fax) 	machine
to 	send a document 	to a 	local 	radio talk show host. 	The
document, 	in a very scurrilous manner,4 attempted to rebut
various 	statements 	made 	by the 	radio 	host 	regarding 	the
appropriateness 	of O.J. 	Simpson's 	"not guilty" 	verdict.
CYA's 	notice 	stated 	that 	Browhaw's 	letter was 	perceived 	as
having come 	from KHS 	and CYA. 	It went 	on to state 	that 	the 	radio
station management 	"questioned what 	kind 	of 	education 	department
would 	allow an employee 	to use 	the 	facsimile machine 	to 	transmit
this 	sort 	of 	hatred." 	It 	also 	accused her of 	causing distress 	to
the 	talk show host.
Prior to 	the 	State 	Personnel 	Board 	(SPB) 	hearing on
Browhaw's 	appeal, 	the parties 	settled the matter by stipulating
that 	the 	penalty would be 	reduced 	to 	a 	5 	percent 	salary reduction
for three 	instead of 	six months.
4Browhaw's 	fax transmittal 	to Enid Goldstein, 	a 	radio host
in Stockton, 	contained many comments 	along the 	following 	lines:
a. 	Dear Enid, 	Goddess of Hatred
b. 	Enid, 	congratulations! 	You have done
more 	to revive hatred than anyone, 	since
Hitler. 	Tell me, 	are you a reincarnated
Hitler? 	. 	. 	. 	What a low life racist you are.
I detest you, 	and the likes of you, 	. 	. 	.
d. 	Now, 	listen, 	and listen well! 	The
reason why you and the 	rest 	of 	the
Jews/whites are upset, 	is because 	it 	takes
more 	than your wishes 	and hatred 	to 	falsely
convict 	an innocent man. 	[He] 	killed no one,
if he did your mama did. 	. 	. 	.
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Browhaw 	- 	Alarcon Communication re Alleged CYA Racism
On July 3, 	1996, 	Browhaw received a 	response 	from Francisco
Alarcon 	(Alarcon), 	the CYA director at that 	time, 	regarding a
previous 	complaint 	from her about 	(1) 	her placement 	on an
assistant principal promotion list, 	and 	(2) 	CYA's 	insistence that
she 	repay the 	department 	for educational 	expenditures 	due 	to her
failure 	to properly complete 	a 	contractual 	educational 	leave.5
In 	that 	complaint 	Browhaw 	states 	she 	suffered 	from racial
discrimination on the part 	of 	her 	supervisors. 	In her written
complaint 	she 	referenced 	either 	racism or 	her African-American
heritage 	eight 	times. 	She made no 	references 	to 	either her union
stewardship 	or 	any protected activities 	as 	the 	basis 	for her
allegations 	of 	discrimination.
Browhaw's 	1997 	Punitive Action
On August 22, 	1997, 	Gary F. 	Maurer 	(Maurer), 	superintendent
of 	KHS 	at 	that 	time, 	caused a 	second notice of 	adverse 	action to
be 	issued to Browhaw. 	This 	action, 	which suspended her 	for
thirty days, 	accused Browhaw of 	leaving a 	training 	session 	in
Sacramento 	2 	1/2 	hours 	early on one 	day and 3 	hours 	early on
5In 	the 	summer 	of 	1995 	Browhaw 	received paid 	educational
leave. 	However, 	she did not 	complete her scheduled courses
within 	the 	prescribed period of 	time. 	CYA determined 	she 	should
reimburse 	the 	agency for costs 	it 	incurred 	in connection with her
leave.
Browhaw states 	her 	failure 	to 	complete 	such courses 	was 	due
to 	the 	death of 	her 	father. 	CYA's 	educational 	leave procedure
states 	if 	"extenuating circumstances" 	exist, 	reimbursement 	is not
necessary." 	Eventually, 	Browhaw got 	her money back but 	the
process 	took an extended period of 	time, 	creating 	a 	financial
burden 	on Browhaw.
8

another. 	She 	is 	also accused of verbally confronting 	the 	KHS
teacher who 	informed management 	of 	her early departures. 	Browhaw
is 	alleged to have 	told this 	teacher to 	"stay out 	of 	my
business," 	"get 	out 	of my life," 	and 	"[y]ou'd better 	find
somebody else 	to 	snitch on." 	Browhaw 	is 	also 	accused of 	calling
her a 	"big 	fat bitch."
The 	adverse 	action 	included 	an 	allegation 	that 	Browhaw
falsely denied 	leaving the 	sessions 	early. 	It 	also 	stated that
Browhaw admitted 	to 	a 	CYA 	investigator 	that 	she 	did make 	the 	"big
fat bitch" 	statement.
In a June 18, 	1998, 	SPB settlement agreement, 	the suspension
was 	reduced to 	a 	"letter of 	instruction" 	which was 	to be 	removed
from her personnel 	file on March 1, 	1999. 	A condition of 	this
settlement 	is 	that 	Browhaw withdraw her December 	1997 	unfair
practice 	charge.
Browhaw-Fernandez 	Communication 	re 	Alleged 	CYA Racism
On September 16, 	1997, 	Browhaw wrote to Arturo C. 	Fernandez
(Fernandez), 	who was CYA's 	assistant 	director in charge of 	its
Equal 	Employment 	Opportunity Commission 	(EEOC) 	complaints. 	She
complained 	that 	her prior 	racial 	discrimination 	complaints
against 	four 	supervisors 	and 	administrators 	had gone 	unanswered.
The 	letter 	contained 	thirteen references 	to 	racial 	bias 	as 	the
reason 	for this 	discrimination. 	The 	letter 	contained no
references 	to 	either her union 	stewardship 	or her protected
activities.
In this 	document 	she 	accused Davis 	of 	continuing
99

to destroy people, 	such as myself, 	by ruining
our career chances. 	She manipulates,
controls, 	and designs 	the manner in which
staff within 	CYA Education will 	be promoted
or harassed. 	Well 	qualified African
Americans, 	such as myself, 	are passed over,
and often 	times 	set-up 	to 	deal 	with 	slander
as 	a means of padding personnel 	files 	of
otherwise perfect candidates. 	. 	. 	.
Browhaw's 	1997 	Negative 	Performance Appraisal
In 	late 	1997 	Browhaw 	received a performance 	appraisal
prepared by Dr. 	Ramon.6 This 	appraisal 	covered 	seven phases 	of
her job. 	The 	"above 	standard," 	"standard," 	and 	"needs
improvement" 	categories were not marked, 	but 	rather her
evaluation was 	set 	forth in narrative 	form. 	She 	was 	rated as
"standard" 	in five categories. 	The document also stated that 	she
"needed improvement" 	in the categories of 	(1) 	"relationships with
people, 	and 	(2) 	"analyzing situations and materials." 	The
general 	comments 	section stated:
As you are aware, 	there have been a 	few times
that 	relationships 	have 	been 	strained between
other 	faculty and yourself. 	You are
encouraged 	to make 	a 	concerted effort 	to 	work
with all 	faculty and administrators. 	I 	will
be 	available 	for 	support 	or assistance 	if 	you
so desire.
Browhaw-Brown Work 	Improvement 	Discussion 	(WID)
On March 4, 	1998, 	Browhaw met with Jones, 	Fine and Robert
Brown 	(Brown), 	CYA's headquarters-based assistant deputy
6Shortly after preparing this 	appraisal, 	but 	before
presenting it 	to Browhaw, 	Dr. 	Ramon was 	transferred to
Sacramento. 	Therefore, 	the document was 	signed by Jones 	instead
of Ramon.
Dr. 	Ramon, 	at some time in the past, 	was under CYA
investigation based 	on unknown 	complaints 	made 	by Browhaw.
10

director, 	Education Services Branch. 	At 	this meeting Brown
conducted a 	WID with Browhaw.
On March 6, 	1998, 	Browhaw was given a written
memorialization of 	the WID with Brown. 	The document 	alleged
that 	she 	called another teacher a 	"bitch" 	and made 	the 	following
comment about 	the same teacher, 	"[she] 	sure did, 	her monkey
looking 	self." 	The 	document 	accused Browhaw of 	making 	such
comment 	in 	a voice 	loud enough 	to be 	heard by 	the 	subject 	teacher
in an adjoining hallway. 	Both incidents were 	alleged to have
occurred 	in October of 	1997. 	She was 	also accused of protesting
so 	loudly at 	the 	meeting with Brown her voice 	could be 	heard
outside 	the 	"closed office 	door." 	Browhaw denied both
allegations. 	In her written rebuttal 	to the WID memo, 	she made
two 	references 	to 	race 	and none 	to her union activities.
March 5, 	1998, 	Verbal Counseling Session
In a March 5, 	1998, 	meeting, 	Browhaw received a counseling
memorandum 	from Fine 	and 	Jones.7 This 	memorandum 	concerned 	an
allegation 	that 	Browhaw was 	speaking 	too 	loudly 	in 	the 	hallway
while 	engaged 	in a discussion with Brown on March 4. 	They
accused her of 	using 	staff 	names 	in 	loud public 	discussions 	with
other staff. 	It 	insisted such behavior
creates 	disruptions 	in the workplace,
interferes with work activities, 	causes
divisions 	among the 	faculty, 	or can be
interpreted 	as 	intimidating 	or 	threatening 	to
other staff members. 	. 	. 	.
7This 	counseling 	session 	and 	its 	concomitant 	written
memorialization 	relate 	to 	the 	same 	subject 	set 	forth 	in Brown's
March 	WID 	memorandum.
11

Brown wrote 	a 	rebuttal 	to this 	counseling memorandum. 	In 	it
she 	denied speaking 	too 	loudly. 	She 	attributed 	the 	entire
incident 	to another teacher, 	who, 	after overhearing her talking
to two other teachers, 	told her 	(Browhaw) 	to 	"shut 	up!" 	The
teacher then, 	according to Browhaw, 	went 	into Jones' 	office and
complained about 	Browhaw's 	statements. 	She 	attributed 	the
"counseling" 	she 	received 	to 	CYA racism when 	she 	included 	the
following 	statement 	in her rebuttal:
When 	Proposition 	209 	ended 	affirmative 	action
some people 	saw it 	as permission to get 	rid
of African Americans. 	Within this 	agency,
many have been 	fired. 	Everything 	that 	we 	do
is magnified a thousand times, 	as 	in the 	case
of your memorandum. 	I 	verified this with my
witnesses.
She also stated, 	in this rebuttal, 	that while 	in this
meeting 	she 	felt 	she was 	in the presence of her enemies. 	When
testifying about 	this 	meeting, 	Browhaw listed these 	enemies 	as
Brown, 	Jones 	and Fine, 	"but not 	solely them." 	Later she 	included
"the people who run the Youth Authority" 	in this 	list. 	This
reference was 	defined to 	include Alarcon and Davis.
Jones' 	Complaint 	to Brown About Browhaw
On March 11, 	1998, 	Jones sent a letter to Brown, 	complaining
about 	Browhaw's 	"exhibiting unprofessional 	behavior." 	He
insisted that her 	"behavior, 	loud talking, 	accusations 	against
you, 	me, 	my assistant 	Patsy Fine 	and other staff 	could be heard
throughout 	the 	education 	center 	onto 	the 	football 	field." 	He
continued:
Numerous 	staff 	have 	asked me why do 	I
continue 	to put 	up with her 	continuous
12

unprofessional 	behavior and 	I 	am at 	a 	lost
[sic] 	for not being able 	to give 	them a
reason. 	It 	is as 	[if] 	we 	(Superintendent's
Office 	included) 	are being held 	"hostage"
with no one 	addressing this 	issue.
Rosielyn's 	behavior 	is 	affecting a 	lot 	of
staff 	including non-educators. 	Also,
students 	are 	seriously being 	affected 	in 	her
classroom by her negative 	behavior. 	Most
students 	don't 	want 	to be 	in her classes 	and
we 	have 	a hard 	time 	keeping 	them there.
Rosielyn 	continuously 	berates 	and 	belittles
her students on a daily basis. 	I 	gave my
assistant 	last 	Friday off 	because 	I 	could 	see
her 	frustrations because 	of 	this very issue.
Also, 	Rosielyn has 	recently stated in writing
that 	my assistant 	since 	her 	arrival 	has
further put her job at risk. 	Yes, 	this 	is
frustrating me 	too 	and 	I 	see 	no 	end to her
continuous harassment. 	Also, 	I do not
believe 	a mediator 	can 	resolve 	any of 	this
because 	it 	has 	gone 	on too 	long with no
resolve. 	It is now a crisis.
Again, 	I 	am requesting an 	immediate 	transfer
for Rosielyn Browhaw to 	another high 	school.
If this does not happen, 	I 	foresee serious
repercussions 	against 	the 	Youth Authority
from many affected staff, 	including non-
education staff 	and students. 	[Emphasis 	in
original.]
Vice-Principal 	Promotion 	Test
Browhaw was 	informed, 	in a document 	dated April 	2, 	1998,
that 	she was 	placed 	in the 	seventh rank on 	the 	"Supervisor 	of
Academic 	Instruction Correction Facility" 	(vice-principal) 	test.
This 	same 	document 	informed her that 	the 	appointment 	method, 	when
13

filling vacancies, 	would only 	"give 	consideration to 	individuals
in the highest 	three ranks."8
Confrontation at 	a 	Spring 	1998 	Meeting
On April 	23, 	1998, 	Browhaw wrote Fine complaining about 	a
recent 	staff 	meeting 	in which 	she 	believed 	she 	was 	negatively
referenced by a 	speaker.9
8Eight years earlier, 	in 1990, 	shortly after her CYA
employment 	began and before 	she became 	a 	CSEA job 	steward, 	she
took 	this 	same 	test 	and placed 	in 	either 	the 	second or 	third
rank. 	This was prior to her having obtained an administrative
credential.
9Browhaw wrote, 	in pertinent part:
During the meeting yesterday, 	I was very much
offended by several 	comments, 	and some 	I
consider to be racials 	[sic] 	slurs. 	There 	is
a 	subtle 	message 	being 	given 	that 	minorities
should model 	white 	behavior.
My 	first 	complaint 	has 	to 	do with 	the 	manner
in which Manny Borges 	reacted 	to 	a 	comment
made 	by me. 	He 	told 	staff 	that 	they should
speak softly, 	and at 	a 	low level 	when testing
students. 	He 	said that 	facial 	expression
should be pleasant. 	After he'd finished, 	I
suggested 	that 	staff 	should be 	themselves.
Borges 	retorted with: 	"I"m not 	going 	to
argue with you..." 	Why was my 	statement
considered 	"argument? "
There 	are 	few 	staff 	other 	than myself 	who
speak loudly, 	and none 	are white. 	On several
occasions 	P. 	Fine has made the 	same comment
regarding my voice. 	It was 	obvious 	that
Borges 	had been prompted by 	F i n e . . . .
Fine responded, 	in pertinent part, 	as 	follows:
It 	is unfortunate 	that you chose 	to be
offended by the 	instruction Mr. 	Borges 	was
directed 	to 	give 	to 	staff 	regarding proper
administration of the STAR test. 	. 	. 	. M r .
Borges was 	instructed to try 	[to] 	emphasize
the 	need 	for the 	examiners 	and procters 	[sic]
14

Your comment 	to Mr. 	Borges was 	confronta-
tional 	and 	challenged 	the 	training point 	that
he 	had 	just 	made. 	You put 	him in a position
to 	either argue 	the point 	with you or 	to
choose 	to drop 	it. 	He 	indicated that 	he was
not 	going 	to argue 	the point 	with you.
Fine 	insists 	that 	any negativity 	towards 	Browhaw was
precipitated by her 	comments 	to 	the 	speaker 	that 	were 	"very
challenging 	and 	confrontational."
In her electronic mail 	(e-mail) 	memorandum, 	Browhaw
attributed the 	speaker's negative reference(s) 	to racism. 	She
cited 	six 	instances 	of problems 	with racism, 	cultural 	diversity
and tolerance, 	racial treatment of wards, 	and 	"white priders."
There were 	no 	references 	to union activity.
CYA Internal Affairs Unit 	(IAU) 	Investigation
In 	late 	1997 	or early 1998, 	shortly after Fine 	assumed her
duties 	at 	KHS, 	a ward came 	to her with a written complaint
regarding 	activities 	he 	alleged 	occurred 	in Browhaw's 	classroom.
Fine believed that 	if 	these 	allegations 	were 	true 	they
constituted unprofessional 	behavior on Browhaw's 	part. 	The 	ward
insisted 	that 	there 	were 	other wards 	who would 	substantiate 	his
allegations. 	She decided to conduct her own investigation. 	She
called six wards, 	one at a time, 	out of class. 	These wards
constituted an 	ethnic 	cross 	section of 	the 	classroom population.
The 	six all 	said the 	alleged behavior had not 	occurred. 	She
to be positive 	in their approach to
administering the examination, 	. 	. 	. No
individual teachers, 	racial groups, 	or other
"minorities" 	were mentioned or 	singled out 	as
particular 	examples 	. . . .
15

discussed the matter with Jones, 	who gave 	her permission to 	talk
to Davis 	and handle 	it 	as 	she 	saw fit. 	She 	spoke 	to Davis who
told her 	to 	take whatever action 	she 	felt 	was 	appropriate. 	Fine
dropped 	the matter.
In early March 	1998, 	Fine 	stated a number of wards 	came 	to
her 	and 	filed both written 	and verbal 	grievances 	against 	Browhaw.
She 	also 	stated that 	at 	the 	same 	time 	a number of 	wards 	asked to
be 	transferred out 	of 	her class.10 According to 	Fine, 	their
transfer 	requests 	were vague 	and 	supported by a variety of
excuses. 	Fine 	called Davis 	again and was 	told to 	(1) 	reduce 	the
verbal grievances 	to writing, 	(2) 	include a request 	for an
Internal Affairs 	investigation,11 and 	(3) 	submit 	the
documentation to her 	(Davis). 	On March 13, 	1998, 	Fine submitted
the 	requested materials. 	Her 	"investigation" 	consisted of 	little
more 	than 	talking 	to 	the 	five wards 	that 	accused Browhaw of
10Ward D, 	when interviewed by Lt. 	Sandra Wright 	(Lt. 	Wright),
one 	of 	the 	IAU investigators, 	stated he 	filled out 	a 	form to be
removed 	from Browhaw's 	classroom because 	it 	was 	too 	hard. 	He
made 	an appointment 	with Fine 	because 	he 	was 	told he 	needed her
authorization to get 	out 	of Browhaw's 	class. 	He 	told Fine 	he was
not 	getting 	any help 	from Browhaw, 	although he 	admitted to 	Lt.
Wright 	that 	Browhaw gives 	the 	wards 	assignments 	and 	expects 	them
to 	"put 	a 	little 	effort 	into 	figuring 	it 	out 	before 	they receive
help."
11CYA has 	two types of 	investigations. 	One, 	for potentially
less 	serious offenses, 	is conducted by one-site personnel. 	The
other 	type 	for potentially more 	serious 	offenses 	is 	conducted by
trained 	investigators 	from CYA's 	headquarters 	IAU. 	Fine's
request 	did not 	specify which 	type 	of 	investigation was 	to 	be
conducted.
16

improper behavior.12 There 	was 	no 	record of 	Fine 	discussing 	the
matter with 	(1) 	Browhaw's two classroom aides, 	(2) 	the volunteer
grandmother, 	or 	(3) 	Browhaw, 	herself, 	prior to requesting a
formal 	investigation. 	In her investigation request, 	Fine 	stated:
On 	five 	separate 	occasions 	with 	student 	[sic]
assigned 	to her 	classroom Rosielyn Dyer-
Browhaw made 	statement 	[sic] 	to or about
students 	that 	were 	of 	a 	sexual 	harassment
nature or were unprofessional. 	These
students 	state 	she 	often uses 	the words
"fuck" 	and 	"bitch" 	in class.
On April 	28, 	1998, 	Browhaw was notified by CYA's 	Internal
Affairs Unit13 that 	she was 	under 	investigation 	for allegedly
being 	"discourteous 	in your 	treatment 	of 	wards 	assigned 	to your
classroom between January 	1998 	through April 	27, 	1998." 	The
subsequent 	investigation 	report 	listed 	five 	separate 	instances 	in
which Browhaw was 	alleged 	to 	have 	made 	inappropriate 	comments 	to
wards. 	Fine 	conducted the preliminary interview on 	three 	of
these allegations.14
12Fine 	testified 	that 	she 	received written ward grievances;
she 	also 	stated 	that 	she was 	told by Davis 	to 	reduce 	all 	oral
grievances 	to writing and submit 	them as 	a part 	of 	her
investigation request. 	However, 	no ward-written complaints were
entered 	into 	evidence, 	nor were 	any such written grievances
supplied by CYA to 	the 	charging party 	in 	response 	to 	a 	subpoena
duces 	tecum.
Sgt. 	Mark Langensepien 	(Sgt. 	Langensepien), 	the second IAU
investigator, 	did not 	recall 	any ward grievances 	being 	attached
to 	Fine's 	investigation request.
13Lt. 	Wright 	and Sgt. 	Langensepien were assigned to conduct
the 	investigation.
14Browhaw 	stated 	that 	a ward 	spoke 	to 	her prior 	to 	her being
told of 	this 	investigation. 	He 	said that 	the 	day before 	when 	she
had been absent, 	Fine 	called various wards 	out 	of 	the 	classroom
to 	ask them 	if 	Browhaw was 	making 	inappropriate 	comments 	in 	the
17

classroom. 	The ward told Browhaw that 	some 	of 	the wards 	that 	did
not 	like 	her were making up negative 	incidents. 	Fine 	asked them
to 	reduce 	these 	incidents 	to writing 	and submit 	them to her.
Browhaw 	learned 	that 	her 	teaching 	assistants 	were 	also
interviewed by Fine, 	who 	told them not 	to 	tell 	her 	(Browhaw)
about 	the 	interviews. 	Neither the wards nor the 	teaching
assistants were 	called to 	testify at 	the 	formal 	hearing 	in this
case.
Sgt. 	Langensepien states his 	recollection was 	that 	the
incidents 	that 	were 	the 	subject 	of 	the 	investigation were brought
to 	Fine's 	attention by wards.
Lt. 	Wright 	asked Fine to obtain written statements 	from
Browhaw's 	two 	aides. 	When Fine 	asked for such 	statements, 	they
declined. 	One 	said he did not want 	to get 	involved. 	The 	other
said, 	"no, 	I will 	answer questions if 	I'm interrogated."
As 	a part 	of 	the 	Internal 	Affairs 	investigation Browhaw's
two 	aides 	and 	the grandmother volunteer were 	interviewed. 	They
all 	stated 	that 	she 	was 	stricter 	and/or more 	structured 	than
other 	teachers. 	None of 	them ever heard Browhaw use
inappropriate 	language 	in the 	classroom, 	nor did they hear her
raise 	her voice 	other 	than to 	a 	level 	necessary to maintain
control.
The 	volunteer 	stated that 	she 	knew three 	of 	the 	five wards
that 	accused Browhaw of misconduct. 	All 	three 	have 	been 	sent 	out
of 	the 	classroom at 	one 	time 	or another 	for not 	following
instructions. 	She 	stated that 	when they were 	sent 	out 	"they
began to 	curse 	and get 	upset 	at 	Browhaw." 	She 	stated the ward
allegations were 	all 	untrue. 	She has worked in Browhaw's
classroom since 	1990.
18

In addition to 	the 	five 	complaining wards 	and the 	three
classroom employees, 	seventeen wards 	and six staff members,
including Browhaw,15 were 	interviewed. 	The 	only allegations 	of
misconduct 	came 	from the 	five wards. 	There was 	no 	corroboration
of 	their 	allegations 	from any of 	the 	other 	twenty-six
interviewees.
On September 28, 	1998, 	Browhaw was notified that 	the
allegations 	that 	were 	the basis 	for the 	investigation were 	not
sustained; 	therefore, 	the case was closed.
Browhaw's E-Mail 	Complaints 	to 	Fine
On May 9, 	1998, 	Browhaw exchanged a 	series 	of 	e-mail
messages 	with Fine. 	In her comments 	Browhaw outlined a 	series 	of
negative 	allegations about 	Fine's 	supervisorial 	actions. 	She
listed 	three 	allegations 	of 	Fine's 	racially discriminating
against 	her 	and only one 	reference 	to her own 	"union duties."
Browhaw's 	Request 	for 	IASA 	Supplies 	from 	Fellow 	Teacher
In January 1998 	Browhaw was 	assigned to KHS' 	Instructing
America's Students Act 	(IASA) 	program.16 On June 2, 	1998, 	she
complained to Fine about, 	among other things, 	a 	fellow KHS
teacher, 	Nancy Powell-Haniey's 	(Hanley), 	being given the position
of 	coordinator of 	this program. 	In this written complaint 	she
made 	four references 	to racism as 	being the 	cause 	of 	her not
15Browhaw was 	interviewed on July 13, 	1998.
16The 	IASA is 	a 	federally funded, 	compensatory education,
skills 	enhancement 	program that 	involves 	computer 	instruction,
teaching 	assistants, 	and both pre- 	and post-program testing.
19

being given 	this position. 	There were no 	references 	to her union
activities.
One 	of 	Hanley's 	coordinating 	responsibilities 	was 	the
monitoring of 	the program's budget, 	which 	included expenditure-
related recommendations. 	Each year, 	prior to being assigned to
the 	IASA program, 	Browhaw would order 	equipment 	and 	supplies 	for
her 	classroom. 	She 	had direct 	access 	to Jones 	to 	discuss 	her
needs 	and 	to 	lobby him regarding 	any 	initial 	disapprovals. 	After
receiving 	her 	IASA assignment 	she 	had 	to 	submit 	her 	requests 	to
Hanley, 	thereby losing her direct 	access 	to Jones.
Browhaw was 	in a unique 	situation. 	She was 	the only full-
time 	IASA teacher. 	The 	other teachers 	assigned to 	the program
had 	"transition" 	classrooms, 	which meant 	they would 	teach regular
core 	classes with a 	small 	number of 	IASA students. 	Therefore,
she 	was 	the 	only teacher 	completely under Hanley's 	budgetary
supervision.
On November 30, 	1998, 	Browhaw received a memorandum from
Hanley explaining 	that 	approximately one-half 	of 	her 	requested
classroom materials 	were 	disapproved by Jones. 	Browhaw believes
that 	Hanley 	either 	denied or 	effectively 	recommended 	denial 	of
her requests.
Hanley states 	that, 	in her role as 	IASA coordinator, 	she
does 	not 	have 	the 	authority to 	approve 	or 	disapprove 	any teacher
requests. 	She 	states 	her 	involvement 	in requisitioning 	supplies
is 	limited to holding meetings 	to 	inform the 	IASA staff 	of 	the
amount 	of 	available money and monitoring 	their 	supply requests.
20
'

This 	monitoring process 	consists 	of 	reading, 	initialling and
forwarding 	them to 	Jones.
However, 	Jones 	testified 	that 	Hanley may recommend 	approval
or disapproval 	of 	IASA teacher requisitions, 	although the 	final
decision 	is 	made by either him or 	Fine.
In 	addition 	to 	the 	coordinator 	selection 	and budgetary
supervision 	issues, 	Browhaw had a number of 	conflicts with the
manner 	in which the 	IASA program was 	being 	implemented. 	One 	such
conflict 	was 	the procedure 	under which wards 	were 	released 	from
the program. 	Previously, 	a ward's 	exit 	was based exclusively on
his 	score on a program-wide 	test. 	Under the new procedure, 	these
scores 	were 	only one 	criterion 	to be 	examined 	in any exit
decision. 	Browhaw 	initially refused 	to participate 	in 	the
collaborative 	process 	necessary to make 	exiting 	decisions 	and
continued to 	effect 	exits 	based on the 	test 	score.
In general, 	Fine 	and Hanley were upset with Browhaw's
reluctance 	to 	follow 	IASA guidelines, 	as 	interpreted by CYA's
educational 	administration.
Letter to Editor of 	the 	Stockton Record
On June 	9, 	1998, 	Browhaw wrote a 	"letter to the editor" 	of
the 	Stockton Record 	in which 	she 	accused 	the 	CYA of 	failing 	to
properly 	investigate her charges 	of 	racism. 	In 	it 	she made 	three
references 	to 	racism and none 	to 	union activity.
Lucero/Fontenot 	Lawsuit 	Against 	Browhaw 	and 	CYA
On July 11, 	1998, 	Denise Lucero 	(Lucero) 	and Brenda Fontenot
(Fontenot), 	two KHS teachers, 	filed suit 	in San Joaquin County
21

against 	Browhaw and 	CYA. 	The 	suit 	alleged 	that 	Browhaw 	created a
hostile 	atmosphere 	at 	KHS 	for the 	two plaintiffs. 	Browhaw was
alleged to have discriminated against 	Lucero, 	who 	is white,
because of her race; 	and Fontenot, 	who is not white, 	because of
her 	racial 	attitude. 	Browhaw was 	alleged to have 	said to
Fontenot, 	"you think you're white."
The plaintiffs' 	suit 	stated that 	CYA failed to 	take
reasonable 	steps 	to 	stop 	Browhaw's 	alleged actions 	against 	them.
There were 	no 	references 	to Browhaw's 	union 	stewardship,
protected activities, 	or any other union-related matters 	in the
subject 	complaint.
Browhaw was deposed on August 	10, 	1999, 	in connection with
this 	case. 	In that 	deposition reference was made 	to her
testimony in the 	subject 	unfair practice 	case. 	When asked to
describe 	the gravamen of 	the 	charge 	in this 	case, 	she 	stated
It 	had a 	lot 	to do with the 	fact 	that 	the
Youth Authority did not 	protect 	me 	from
Lucero and Fontenot 	and in fact, 	I believe
that 	some 	of 	the 	administrators 	had a 	lot 	to
do with where we 	are 	today. 	And 	I 	think that
they did 	that 	as 	reprisal 	for a 	racial
discrimination case 	I 	filed as well 	as my
duties 	with the 	California 	State 	Employee
Association.
Browhaw's 	1998 	Negative 	Performance Appraisal
In late November 	1998, 	Browhaw was given a performance
appraisal 	by Fine which graded her as 	(1) 	above 	standard 	in 	the
category of 	"work habits," 	(2) 	standard in five other categories,
and 	(3) 	"needs improvement" 	in two categories: 	(a) 	relationships
22

with people, 	and 	(b) 	analyzing situations and materials. 	The
following 	sentence was 	inserted 	in 	"General 	Comments:"
The work 	that 	you do 	to help 	students 	learn
and 	improve 	their basic 	skills 	in 	reading
writing, 	and math is 	appreciated.
Under the 	"Relationships with People" 	category, 	the
following 	sentences 	were 	included:
You have 	made 	derogatory 	comments 	in writing
about 	school 	administration and 	other 	staff.
In the 	long run, 	these behaviors 	are 	counter-
productive 	for all 	concerned.
When asked why she 	included the 	first 	sentence, 	Fine 	said:
There were 	numerous 	documented writings 	--
Workers' 	Comp claims and rebuttals and
things 	like 	that 	-- 	and comments were very
derogatory.
BrowhaW s 	1999 	EEOC 	Charges
On January 5, 	1999, 	Browhaw wrote to the EEOC office 	in
Fresno 	complaining of 	"[b]latant 	acts 	of 	racial 	discrimination"
by KHS 	and CYA. 	She began her 	letter by complaining 	that 	the
Fresno 	EEOC 	office 	had 	sided with her opponents 	with 	regard 	to
the 	seven charges 	she previously had 	filed. 	She 	then 	requested
that 	her 	six new charges 	be 	sent 	to EEOC's 	Oakland or 	San
Francisco office due 	to Fresno's past 	negative 	decisions. 	The
six new 	charges 	allege 	that 	she 	improperly 	suffered 	the 	following
adverse personnel actions: 	(1) 	a negative December 28, 	1998,
performance 	appraisal, 	(2) 	a temporary teaching subject matter
change, 	(3) 	receipt 	of a 	low rating on the assistant principal
test, 	(4) 	receipt of a March 6, 	1998, 	WID from Brown, 	(5) 	failure
to receive upwardly mobile assignments at KHS, 	and 	(6) 	a
23

requirement 	that 	she 	submit 	her requests 	for teaching materials
to 	IASA coordinator Hanley, 	rather than to 	the principal.
She 	attributed all 	of 	these 	charges 	to 	racism against 	her
because 	of 	her African-American ethnicity. 	There was 	no mention,
of 	any sort, 	in this 	letter of 	her union status 	or activities.
Interrelationship 	of 	Racism 	and Dills Act 	Protected Activities
In 	response 	to 	questions 	from her 	representative 	during 	the
hearing 	in this 	case, 	Browhaw discussed the 	interrelationship of
racism and Dills 	Act 	protected 	activities 	as 	reasons 	for 	the
alleged discrimination against her, 	as 	follows:
Q. 	Okay. 	And isn't 	it 	true 	that 	it's your
contention that 	the 	Department 	of 	Youth
Authority has 	taken 	these 	actions 	not 	simply
based on your status 	as 	a union steward, 	but
also 	in 	retaliation 	for 	racial 	discrimination
or 	that 	they're 	discriminating on 	the 	basis
of 	race?
A. 	I 	think they both equally played a 	role;
however, 	I 	think my union steward and the
people 	that 	I 	associated with as 	a union
steward 	outweighed 	the 	other 	factor.
Q. 	Outweighed 	the 	other 	factor being?
A. 	The 	racial 	discrimination was 	compounded
by my activities 	as 	a union steward. 	And
because 	of 	the people 	that 	I 	associated with
who were 	also union 	stewards 	compounded 	a
problem that 	exaggerated my problems 	with 	the
racial 	discrimination.
Q. 	So to clarify, 	both the 	fact 	that 	-- 	you
believe 	the 	Department 	retaliated 	or
discriminated 	against 	you based 	on your 	union
status 	as well 	as 	the 	fact 	that 	the
Department 	retaliated 	or 	reprised 	against 	you
based on your race, 	both played a 	role 	in
these 	actions?
A. 	It's 	been my observation and my
experience 	that 	the 	California Department 	of
24

Youth Authority discriminates 	against
African-Americans. 	And that's 	a 	statement
that 	is 	confirmed by a 	report 	that 	was 	done
by the 	State 	Personnel 	Board, 	Adverse Action
Board.
RULING 	ON MOTION 	FOR 	PARTIAL 	DISMISSAL
As set forth, 	supra, 	in the Introduction 	(p. 	2 ) , 	the
complaint 	alleges 	five 	instances 	of 	CYA discrimination 	against
Browhaw. 	At 	the 	end of 	the 	charging party's 	case-in-chief,
respondent 	moved 	for dismissal 	of 	three 	of 	these 	allegations.
This 	motion was 	submitted 	in writing and 	is 	hereby made 	a part 	of
the record, 	as 	if 	fully set 	forth herein.
The 	motion was 	granted with 	regard 	to 	two 	of 	the
allegations, 	i.e., 	that 	CYA discriminated against 	Browhaw when it
(1) 	failed to 	select 	her 	for promotion to assistant principal,
and 	(2) 	denied her educational 	leave 	opportunities. 	The motion
was granted pursuant to section 3514.5 (a) (I),17 which prohibits
the 	issuance 	of 	a 	complaint 	based on events 	occurring more 	than
six months prior to 	the 	filing of 	the 	charge. 	The 	justification
for the 	granting of 	such motions will 	be 	described, 	with greater
specificity, 	below.
17Section 3514.5, 	in pertinent part, 	states:
(a) 	Any employee, 	employee organization, 	or
employer shall 	have the 	right 	to 	file 	an
unfair practice charge, 	except 	that 	the
board shall 	not 	do 	either of 	the 	following:
(1) 	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;
25

ISSUES
1. 	Were 	any of 	the allegations 	set 	forth in this unfair
practice 	charge 	barred by the 	provisions 	of 	section 	3514.5(a)(1)?
2. 	Did CYA discriminate 	against 	Browhaw due 	to her
protected activities, 	thereby violating subdivision 	(a) 	or 	(b) 	of
section 	3519?
CONCLUSIONS 	OF 	LAW
ISSUE NO. 	1. 	Were 	any of the allegations 	set 	forth in this
unfair practice 	charge barred by the 	provisions 	of 	section
3514.5(a)(1)?
The 	statute 	of 	limitations 	begins 	to 	run on the 	date
charging party obtains 	actual 	or 	constructive 	knowledge 	of 	the
subject 	conduct. 	(Fairfield-Suisun Unified 	School 	District
(1985) 	PERB Decision No. 	547; 	The Regents of the University of
California 	(1990) 	PERB Decision No. 	826-H; 	Regents of the
University of California 	(1993) 	PERB Decision No. 	1002-H; 	Regents
of 	the University of California 	(1993) 	PERB Decision No. 	1023-H.)
Even 	actual 	knowledge 	must 	"clearly 	inform" 	the 	charging
party of 	the 	alleged unlawful 	act. 	(See Victor Valley Union High
School District 	(1986) 	PERB Decision No. 	565.)
The charge 	in this 	case was 	filed on January 7, 	1999. 	The
primary 	question with 	regard 	to 	the 	allegations 	dismissed 	during
the hearing becomes, 	"[H]ow soon before January 7, 	1999 was
Browhaw 	"clearly informed" 	that 	(1) 	she was not 	to be 	selected as
a vice-principal, 	and 	(2) 	her request 	for educational 	leave was
denied. 	If 	she had actual 	or constructive notice 	of 	either
circumstance prior to July 8, 	1998, 	six months before 	the charge
26

was 	filed, 	it 	would be barred by the provisions 	of 	section
3514.5(a) (1).
Vice-principal 	Test
The 	evidence 	is 	quite 	clear 	that 	she 	learned on April 	2,
1998, 	or shortly thereafter, 	that 	she was placed in the 	seventh
rank on her vice-principal 	test. 	As 	this 	ranking effectively
caused her not 	to be 	considered 	for 	any newly opened positions,
it 	was 	on this 	date 	that 	she became 	clearly 	informed of 	her
failure 	to be 	selected for the position. 	As April 	2, 	1998, 	is
well before July 8, 	1998, 	the charge was properly dismissed.
Educational 	Leave
With regard to 	the 	educational 	leave 	issue 	the 	complaint
states 	that 	she was 	denied educational 	leave 	"during her tenure"
at 	KHS. 	The 	evidence 	adduced at 	the 	hearing centered on the
denial 	for the 	1997-98 	school 	year.
It 	is 	clear that 	she was 	informed of Jones' 	denial 	of her
request 	for 	1997-98 	educational 	leave 	by a 	letter dated May 23,
1997. 	As this date 	is well before July 8, 	1998, 	the charge with
regard to her 	request 	for 	1997-98 	was 	also properly dismissed.
The 	record also 	shows 	that 	her 	initial 	request 	for
educational 	leave 	for the 	1998-99 	school 	year was 	denied on
May 26, 	1998. 	The denial was conditional, 	however, 	and included
a 	suggestion 	that 	a 	request 	for a 	lesser 	amount 	would be 	granted.
There 	was 	no 	record of 	her having 	resubmitted 	a 	request 	for 	a
lesser amount. 	However, 	as 	she was given this 	1998-99 	denial 	on
May 26, 	1998, 	she was 	clearly informed of 	such action prior to
27

July 8, 	1998. 	Therefore, 	this charge was also properly
dismissed.
Initiation 	of 	Investigation
Respondent 	contends 	that 	the 	complaint 	allegation 	regarding
the 	"initiation" 	of 	an 	investigation against 	Browhaw 	is 	also
barred by section 3514.5(a)(1). 	It 	cites 	Browhaw's 	admission she
heard of 	the 	investigation 	through wards 	and classroom aides 	and
eventually was 	notified of 	the 	pendency of 	the 	investigation by
an April 28, 	1998, 	memorandum from Lt. 	Wright. 	Respondent
insists 	that, 	at 	least as of that date, 	Browhaw was 	informed of
the 	charges 	against 	her and 	the 	section 3514.5(a)(1) 	limiting
period began to 	run.
Respondent's 	contention 	is 	not 	supported by 	the 	evidence.
The memorandum from Lt. 	Wright 	merely states 	Browhaw 	is 	to be
investigated for possible adverse 	action. 	It 	goes 	on to allege
she was
. 	. 	. 	discourteous in your treatment of wards
assigned 	to 	your 	classroom between 	January
1998 through April 27, 	1998.
This memorandum does 	not 	"clearly 	inform" 	her of 	her
allegedly improper conduct. 	Absent 	specifics 	Browhaw does 	not
know what 	improprieties CYA is alleging. 	Therefore, 	she 	is
unable 	to 	develop 	a 	defense 	to 	the 	charges 	against 	her or have
sufficient 	information to 	support 	an unfair practice 	charge
alleging 	that 	the 	initiation of 	the 	investigation was 	due 	to her
protected 	activities.
28

Respondent 	cannot, 	on the one hand, 	fail 	to notify an
employee 	of 	the 	details 	of 	the 	charges 	against 	him/her; 	and then
cite 	the 	employee's 	receipt 	of 	rumors 	and 	incomplete 	memos 	as
support 	for 	a 	contention 	that 	the 	employee 	was 	"clearly 	informed"
of 	such charges. 	It was 	only when she 	actually met 	with the 	IAU
investigators 	that 	she became 	aware 	of 	the 	specific 	charges
against her. 	This meeting occurred on July 13, 	1998. 	It was at
this time that 	the time limit 	set 	forth in section 3514.5(a)(1)
began to 	run.
•
Respondent's 	motion 	for dismissal 	of 	the part 	of 	the 	charge
that 	concerns 	the 	initiation of 	an 	investigation against 	her 	is
hereby 	denied.
Permission 	from Co-Worker 	for 	Supplies
Respondent 	also 	claims 	that 	the 	charge 	that 	she 	was 	required
to 	obtain permission 	from a 	co-worker 	to 	obtain 	classroom
supplies is barred by section 3514.5 (a) (1) . 	It bases this
argument 	exclusively on a 	letter 	it 	claims 	Browhaw wrote 	to 	CYA
Director Alarcon on August 	11, 	1998. 	In this 	letter there 	is 	a
list 	of 	circumstances 	that 	Browhaw believes 	show 	she was 	being
discriminated against 	by CYA administrators. 	The 	letter 	includes
the 	following 	statement 	next 	to 	a January 	1998 	date:
. 	. 	. 	Required to work under a less qualified
teacher. 	Refused a budget, 	the ability to
give grades 	to students, 	choose my own
equipment, 	and supplies. 	Refused access 	to
administrators 	. . . . 	[Emphasis 	added.]
Respondent 	cites 	the January 1998 	date next 	to 	this
statement 	in 	support 	of 	its 	contention that 	Browhaw knew at 	that
29

time 	she 	was 	required to 	"obtain permission 	from a 	co-worker 	to
obtain 	classroom 	supplies."
There 	are 	two problems with this 	contention. 	First,
although Browhaw originally admitted writing 	the 	letter, 	she
later recanted, 	admitting only that 	she wrote 	a 	letter 	"similar
to this." 	She cites 	the 	facts 	that 	(1) 	the 	letter bore no
signature, 	(2) 	had different kinds of typing on it, 	and
(3) 	various papers were taken out 	of her drawer at 	school.
Second, 	even 	if 	it were proven that 	Browhaw wrote 	the
letter, 	the 	reference 	to January 1998 	next 	to 	the 	subject
statement 	is 	insufficient 	to 	support 	a 	finding 	that 	she 	is 	barred
by 	section 3514.5(a)(1) 	from pursuing her charge.
Therefore, 	respondent's motion for dismissal 	of 	the part 	of
the 	complaint 	that 	concerns 	a 	requirement 	she 	obtain 	supplies
from a 	co-worker 	is 	hereby denied.
ISSUE NO. 	2. 	Did CYA discriminate 	against 	Browhaw due 	to her
protected activities, 	thereby violating subdivision 	(a) 	or 	(b) 	of
section 	3519?
Applicable 	Test
The 	Board, 	in Carlsbad Unified School 	District 	(1979) 	PERB
Decision No. 	89 	(Carlsbad), 	set 	forth the 	following test 	for
alleged violations 	of 	subdivision 	(a) 	of 	section 3543.5:
1. 	A single 	test 	shall 	be 	applicable 	in all
instances 	in which violations 	of 	section
3543.5(a) 	are alleged;
2. 	Where 	the 	charging party establishes
that 	the 	employer's 	conduct 	tends 	to or does
result 	in 	some 	harm to 	employee 	rights
granted under 	the 	EERA, 	a prima 	facie 	case
shall 	be 	deemed to exist;
30

3. 	Where the harm to the employees' 	rights
is 	slight, 	and the employer offers
justification 	based 	on 	operational 	necessity,
the 	competing 	interest 	of 	the 	employer 	and
rights 	of 	the 	employees 	will 	be 	balanced and
the 	charge 	resolved 	accordingly;
4. 	Where 	the 	harm is 	inherently destructive
of 	employee rights, 	the 	employer's conduct
will 	be 	excused only on proof 	that 	it 	was
occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course of 	action was 	available;
5. 	Irrespective of 	the 	foregoing, 	a charge
will 	be 	sustained where 	it 	is 	shown 	that 	the
employer would not 	have 	engaged 	in the
complained-of 	conduct 	but 	for an unlawful
motivation, 	purpose or intent. 	[Emphasis
added.]
In Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210 	(Novato), 	the Board clarified the Carlsbad test 	for
retaliation or discrimination 	in 	light 	of 	the 	National 	Labor
Relations Board decision in Wright Line, 	Inc. 	(1980) 	251 NLRB
1083 	[105 LRRM 1169] 	enforced in part 	(1st Cir. 	1981) 	662 	F.2d
899 	[108 	LRRM 2513]. 	In Novato, 	the Board made 	it 	clear that
unlawful 	motivation must 	be proven 	in order 	to 	find a violation.
In addition, 	a nexus 	or connection must 	be demonstrated between
the 	employer's 	conduct 	and the 	exercise 	of 	a protected 	right
resulting 	in harm or potential 	harm to 	that 	right.
In order to establish a prima 	facie 	case, 	the 	charging party
must 	first 	prove 	that 	the 	subject 	employee 	engaged 	in protected
activity.18 Next, 	it 	must 	establish that 	the 	employer had
18Section 3515 	grants 	state 	employees:
. 	. 	. 	the right to form, 	join, 	and
participate 	in the 	activities 	of 	employee
31

organizations 	of 	their own choosing 	for 	the
purpose 	of 	representation on all 	matters 	of
employer-employee relations. 	. 	. 	.
knowledge of 	such protected activity. 	Last, 	it 	must prove 	that
the 	subject 	adverse action(s) 	were taken in whole or in part, 	as
a 	result 	of 	such protected activity.
Existence 	of 	an Adverse Action
Respondent 	contends 	that 	(1) 	the mere 	initiation of 	an
investigation, 	(2) 	a requirement 	that budgetary requests be
reviewed by a 	fellow employee, 	and 	(3) 	a performance 	appraisal
that 	does 	not 	include a majority of 	substandard ratings, 	do not
constitute 	"adverse 	actions" 	or 	"harm to 	employee 	rights" 	under
the Dills Act.
PERB, 	in Newark Unified School 	District 	(1991) 	PERB Decision
No. 	864, 	interpreting Palo Verde Unified School District 	(1988)
PERB Decision No. 	689 	(Palo Verde), 	stated, 	in pertinent part:
Furthermore, 	Palo Verde necessitates 	an
objective 	finding of adverse action; 	thus, 	as
stated above, 	the question is not whether
Bookout 	personally 	found 	the 	transfer
undesirable, 	but 	whether a reasonable person
under 	the 	same 	circumstances 	would 	consider
the 	transfer to have 	an 	adverse 	impact 	on 	the
employee's 	employment. 	[Emphasis 	in
original.]
Initiation 	of 	Investigation
Certainly, 	any teacher being 	investigated 	for 	allegedly
being 	"discourteous 	in your treatment" 	of 	assigned 	students,
would 	reasonably 	consider 	such 	action 	as 	having 	an 	adverse 	impact
on his/her 	employment.
32

Permission 	from 	Co-worker 	for 	Supplies
Likewise, 	any teacher required to 	obtain permission 	from a
peer 	for 	the 	requisition of 	her classroom supplies 	would
reasonably 	consider 	such 	action 	to 	be 	demeaning 	and 	have 	an
adverse 	impact 	on his/her 	employment.
In 	this 	case 	the 	fellow teacher was 	elevated to 	a
coordinator position and 	it 	was 	this 	elevation that 	granted 	the
peer 	such 	responsibility. 	These 	circumstances 	may have 	an 	impact
on 	the 	ultimate 	decision of 	whether 	there 	was 	unlawful
motivation, 	but 	not 	on whether such action was 	adverse 	to 	the
employee.
Adverse 	Performance 	Report
Respondent 	cites 	a provision of 	the parties' 	memorandum of
understanding 	(MOU) 	that 	only permits 	a grievance 	to be 	filed
against 	a performance 	report 	when 	such 	report 	contains 	a majority
of 	substandard ratings. 	However, 	the Palo Verde 	standard is not
controlled by the provisions of the parties' 	MOU. 	Certainly, 	a
reasonable 	person would 	consider 	a 	performance 	report 	that
included 	substandard 	ratings 	for 	"relationships 	with people" 	and
"analyzing 	situations 	and materials" 	to have 	an adverse 	impact 	on
his/her 	employment.
Summary
Therefore, 	the 	respondent's 	contention that 	each of 	the
complaint 	allegations 	failed 	to 	constitute 	"adverse 	action"
within the provisions 	of 	the Dills Act 	is 	rejected.
33

Proof 	of 	Unlawful 	Motivation
Proving 	the 	existence 	of 	unlawful 	motivation can be 	a
difficult 	burden. 	The Board acknowledged this 	when 	it 	stated the
following 	in 	Carlsbad:
Proof 	Of 	Unlawful 	Intent 	Where 	Offered Or
Required
Unlawful 	motivation, 	purpose or intent 	is
essentially a 	state of mind, 	a 	subjective
condition generally known 	only 	to 	the 	charged
party. 	Direct 	and affirmative proof 	is 	not
always 	available or possible. 	However,
following 	generally 	accepted 	legal 	principles
the presence of 	such unlawful 	motivation,
purpose 	or 	intent 	may be 	established by
inference 	from the 	entire 	record. 	[Fn.
omitted.]
In addition, 	the Board, 	in Novato, 	set 	forth examples of the
types 	of 	circumstances 	to be 	examined in a determination of
whether union animus 	is 	present 	and a motivating 	factor 	in 	the
employer's action(s). 	These circumstances are 	(1) 	proximity of
time 	between participation 	in 	the 	protected 	activity 	and 	the
adverse action, 	(2) 	disparate treatment of the affected
employee(s), 	(3) 	inconsistent explanations of the employer's
action(s), 	(4) 	departure from established procedures or
standards, 	and 	(5) 	inadequate investigation(s). 	(See also
Baldwin Park Unified School 	District 	(1982) 	PERB Decision No. 	221
(Baldwin 	Park).)
Protected Activity 	and Management's 	Knowledge 	Thereof
The 	evidence 	is 	clear that 	Browhaw engaged 	in protected
activities 	and that 	the decision makers, 	Jones, 	Fine 	and Davis
were 	aware 	of 	such activity. 	Her CSEA steward 	status 	was 	known
34

to both Jones 	and Davis 	as was 	her participation 	in the DFL
lawsuit.19 Although Fine 	insists 	that 	she was 	unaware 	of
Browhaw's 	stewardship until 	after 	the 	November 	1998 	performance
evaluation, 	she was 	aware of 	the DFL 	lawsuit prior to her arrival
at 	KHS. 	She undoubtedly became 	aware of Browhaw's participation
in that 	suit 	shortly after her arrival 	at 	KHS.
Respondent 	correctly points 	out 	that 	the 	quantum of
Browhaw's 	representational 	activity was 	not 	supported by
empirical 	evidence, 	but 	rather by her statements 	alone. 	However,
her 	filing 	of 	an unfair practice 	charge 	in December 	1997 	and her
appeals 	from various 	negative 	personnel 	actions 	constitute
sufficient 	evidence 	to 	support 	a 	finding 	she 	engaged 	in protected
activity.
Nexus 	Between 	such Activity and Adverse 	Personnel 	Actions
Timing
The 	record 	is 	replete 	with 	charges 	and 	counter 	charges
between these parties 	from early 	1996 	through 	1998. 	The 	evidence
sets 	forth a 	chronology of 	Browhaw's 	protected 	activities
intertwined with 	a 	corresponding 	chronology of 	negative 	CYA
personnel 	actions.
Some 	examples 	of 	this 	chronological 	interrelationship 	are:
19There 	is 	a 	question of whether or not 	Browhaw's
participation 	in 	the 	DFL 	lawsuit 	would qualify as 	protected
activity under the Dills Act. 	However, 	due 	to Browhaw's other
actions 	on behalf 	of 	CSEA, 	this 	issue need not 	be 	resolved.
35

(1) 	In 	1994-5 	Browhaw 	actively 	engages 	in 	the 	lawsuit
against 	CYA with 	regard 	to 	the 	DFL 	program. 	In 	February 	1996 	she
receives 	an 	adverse 	action;
(2) 	Throughout 	1996-97 	Browhaw 	represents 	employees 	on
various 	issues. 	In May 	1997 	Jones 	denies 	Browhaw's 	request 	for
educational 	leave;
(3) 	On December 	5, 	1997, 	Browhaw 	files 	an unfair practice
charge 	against 	CYA. 	In 	December 	1997 	Browhaw 	receives 	a 	negative
performance 	report; 	and
(4) 	In April 	1998 	Browhaw 	complains 	about 	disrespect 	shown
her 	by Manny 	Borges; 	in 	May 	she 	complains 	about 	Fine's
supervisorial 	actions; 	and 	in 	June 	she 	complains 	about 	not
receiving 	the 	IASA 	coordinator 	position. 	In 	late 	November
Browhaw 	(a) 	receives 	a negative performance 	report, 	and 	(b) 	is
told 	one-half 	of 	her 	requested 	materials 	were 	rejected 	by 	Jones.
All 	of 	these 	circumstances 	lend 	support 	to 	an 	inference 	of
unlawful 	motivation. 	However, 	PERB 	has 	made 	it 	clear 	that 	timing
alone 	is 	insufficient 	to 	create 	an 	inference 	of 	a 	nexus 	between
protected 	activity 	and 	negative 	personnel 	actions. 	(Moreland
Elementary School 	District 	(1982) 	PERB 	Decision N o . 	2 2 7 ; 	Charter
Oak Unified 	School 	District 	(1984) 	PERB 	Decision N o . 	404.)
Disparate 	Treatment
Unlawful 	motivation 	may 	also 	be 	inferred 	from 	disparate
treatment 	of 	the 	employee. 	Charging 	party 	contends 	that 	CYA's
decision 	to 	conduct 	a 	level 	two 	investigation, 	with 	the 	use 	of
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IAU investigators, 	rather than a 	lesser 	level 	investigation with
the use 	of NCYC or 	in-house 	investigators, 	was 	disparate
treatment 	of 	Browhaw.
Charging 	Party's 	contention is without 	merit. 	There was no
evidence 	that 	either 	Fine 	or Davis 	requested a 	level 	two
investigation. 	The 	choice 	of 	the 	investigatory 	level 	was 	made 	by
the 	IAU. 	Given Browhaw's 	litigious background, 	prior adverse
actions, 	and multiple 	complaints 	to various 	high level 	CYA
administrators, 	it 	is 	reasonable 	that 	the 	IAU would want 	to
assure 	itself 	that 	the 	investigation was 	conducted by 	trained
professionals, 	rather than the 	local part-time 	investigators.
The 	choice 	of 	a 	level 	two 	investigation of 	Fine's 	allegation does
not 	support 	an 	inference 	of unlawful 	motivation.
Inadequate 	Investigation
An 	inadequate 	investigation can also provide 	evidence 	of
unlawful 	motivation. 	(See Baldwin Park.) 	A case 	can be made
that 	Fine's 	investigation of 	the 	ward 	allegations 	prior 	to 	her
request 	for an 	IAU investigation was 	inadequate. 	She 	did not
speak 	to 	the 	classroom aides, 	the volunteer grandmother or
Browhaw, 	herself, 	before requesting an investigation. 	Nor was
there 	any evidence 	that 	she 	examined the wards' 	disciplinary
history 	in Browhaw's 	classroom.
In addition, 	she 	referenced the 	existence 	of written
complaints 	in her 	initial 	discussions with Davis, 	and was
directed 	to 	reduce 	all 	verbal 	ward complaints 	to writing. 	And
yet, 	even though a 	subpoena duces 	tecum for 	such documentation
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was 	served on 	the 	CYA, 	no 	such writings 	were 	produced. 	These
circumstances 	raise 	questions 	of 	Fine's 	ability 	to 	conduct 	a
competent 	preliminary 	investigation. 	As 	the 	more 	formal
investigation 	learned, 	the 	charges 	of 	the 	five 	wards 	were 	not
substantiated 	by 	any 	of 	the 	other 	twenty-six 	witnesses
interviewed.
The 	inadequacies 	of 	Fine's 	investigation, 	prior 	to 	her
initiating the 	IAU investigation, 	support, 	to 	some 	extent, 	an
inference 	of 	unlawful 	motivation.
There 	is 	no 	credible 	evidence 	with 	regard 	to 	any
(1) 	inconsistent 	explanations 	of 	the 	employer's 	action 	or
(2) 	departure(s) 	from established procedures 	or 	standards.
Summary 	of 	"Novato" 	and 	"Baldwin 	Park" 	Circumstances
With 	regard 	to 	the 	(1) 	peer 	review 	of 	supply 	requisitions
and 	(2) 	the 	negative 	rankings 	in her 	1998 	performance 	appraisal,
it 	is 	determined 	there 	is 	insufficient 	evidence 	to 	support 	an
inference 	of 	unlawful 	motivation 	and 	these 	charges 	shall 	be
dismissed.
With 	regard 	to 	the 	allegation 	of 	improperly 	initiating 	an
investigation 	of 	Browhaw, 	there 	was 	some 	evidence 	supporting 	an
inference 	of 	unlawful 	motivation. 	However, 	the 	harm to 	Browhaw
was 	slight 	and 	the 	respondent 	insists 	that 	a 	charge 	of
discourtesy 	towards 	wards, 	especially 	one 	that 	includes
allegations 	of 	improper use 	of 	sexual 	language, 	was 	serious
enough 	to 	justify 	a 	formal 	investigation.
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Under 	these 	circumstances 	the 	competing 	interests 	of 	the
employer 	and 	the 	rights 	of 	the 	employee 	will 	be 	balanced 	and 	the
charge 	resolved 	accordingly.
In any attempt 	to balance 	the rights of the parties, 	it must
be pointed out 	that 	Fine, 	Jones 	and Davis 	were 	faced with an
employee 	who has 	had numerous 	conflicts 	with others 	in the
past.20 It 	is 	not 	unreasonable 	for 	them to be 	concerned that
this 	predilection 	for 	conflict 	would 	carry over 	to 	her 	classroom
demeanor.
Although, 	the 	record clearly shows numerous 	incidents 	in
which Browhaw was 	in conflict 	with her 	supervisors, 	there was
little, 	if any, 	evidence that 	such conflicts were the result of
her protected activities. 	There 	is no doubt 	that 	the
overwhelming weight 	of 	the 	evidence 	dictates 	the 	charge 	be
resolved 	in 	favor of 	the 	employer.
Summary
After an examination of 	the 	foregoing, 	it 	is 	determined that
there 	is 	insufficient 	evidence 	to 	support 	a 	charge 	that
Browhaw's 	adverse personnel 	actions were 	the 	result 	of 	her
protected 	activities.
PROPOSED 	ORDER
Based on the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law
and the 	entire 	record in this 	case, 	it 	is 	found that 	the 	State of
20Her own 	contemporaneous 	writings 	show that 	she 	believed her
conflicts 	with 	others 	were 	' the 	result 	of 	their 	racial
discrimination. 	However, 	in her testimony she states she believes
her 	protected 	activities 	are 	equally 	to 	blame 	for 	her 	problems.
The 	evidence 	does 	not 	support 	this 	testimony.
39

California 	(Department 	of 	Youth Authority) 	did 	not 	violate 	the
Ralph C. 	Dills Act, 	Government 	Code 	section 3519(a) 	or 	(b), 	when
it 	(1) 	initiated 	an 	internal 	affairs 	investigation 	against 	her,
(2) 	failed 	to 	select 	her 	for promotion 	to vice-principal,
(3) 	denied her educational 	leave 	opportunities, 	(4) 	required her
to 	obtain 	classroom 	supplies 	through 	the 	Instructing 	America's
Students 	Act 	coordinator, 	or 	(5) 	gave 	her 	an 	annual 	review with
two 	low 	rankings. 	It 	is 	ORDERED 	that 	all 	aspects 	of 	the 	charge
and 	complaint 	in Case No. 	SA-CE-1201-S, 	California 	State
Employees 	Association v. 	State 	of 	California 	(Department 	of 	Youth
A u t h o r i t y ) , 	are hereby DISMISSED.
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 	Board 	itself
within 	twenty 	days 	of 	service 	of 	this 	Proposed 	Decision. 	The
Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals 	Assistant
1031 	18th 	Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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. 	(See Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32300.)
A 	document 	is 	considered 	"filed" 	when 	actually 	received
before 	the 	close 	of 	business 	(5 	p.m.) 	on 	the 	last 	day 	set 	for
filing 	or 	when 	mailed 	by 	certified 	or 	Express 	United 	States 	mail,
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as 	shown on the postal 	receipt 	or postmark, 	or delivered to a
common carrier promising 	overnight 	delivery, 	as 	shown on 	the
carrier's 	receipt, 	not 	later than the 	last 	day set 	for 	filing.
(See Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32135(a); 	see also Cal.
Code Regs., 	tit. 	8, 	sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by
facsimile 	transmission before 	the 	close 	of 	business 	on the 	last
day 	for 	filing, 	together with a 	Facsimile 	Transmission Cover
sheet which meets the requirements of Cal. 	Code Regs., 	tit. 	8,
sec. 	32135(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, 	secs. 	32135(b), 	(c)
and 	(d); 	see also Cal. Code Regs., 	tit. 	8, 	secs. 	32 090 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 of 	Regs.,
tit. 	8, 	secs. 	32300, 	32305, 	32140 and 32135(c).)
Allen R. 	Link
Administrative Law Judge
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