Golden Plains Unified School District (PERB 1489E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GRACIELA RAMIREZ,
Charging Party,
V.
GOLDEN PLAINS UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. SA-CE-2050-E
PERB Decision No. 	1489
July 	8, 	2002
Appearances: 	Graciela Ramirez, on her own behalf; Lozano Smith by Tina R. Hunt, Attorney,
for Golden Plains Unified School District.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Graciela Ramirez (Ramirez) of a Board agent's dismissal of her
unfair practice charge. The charge alleged that the Golden Plains Unified School District
(District) failed to reelect her under the procedures of Education Code section 44929 .21 1 for
1Education Code section 44929.21 provides, in pertinent part:
(b) Every employee of a school district of any type or class
having an average daily attendance of 250 or more who, after
having been employed by the district for two complete
consecutive school years in a position or positions requiring
certification qualifications, is reelected for the next succeeding
school year to a position requiring certification qualifications
shall, at the commencement of the succeeding school year be
classified as and become a permanent employee of the district.

reasons which violated the Educational Employment Relations Act (EERA).2 Ramirez alleged
that the District discriminated against her soon after she sought assistance from her union
representative and chose to reelect a similarly-situated employee, and that this conduct
constituted a violation
of
BERA section 3543.5(a).3 After reviewing the entire record
in
this
matter, the Board holds that Ramirez stated a prima facie violation
of
BERA section 3543.5(a)
and remands the case to the Office
of
the General Counsel for issuance
of
a complaint.
The governing board shall notify the employee, on or before
March 15
of
the employee's second complete consecutive school
year
of
employment by the district in a position or positions
requiring certification qualifications,
of
the decision to reelect or
not reelect the employee for the next succeeding school year to
the position. In the event that the governing board does not give
notice pursuant to this section on or before March 15, the
employee shall be deemed reelected for the next succeeding
school year.
This subdivision shall apply only to probationary employees
whose probationary period commenced during the 1983-84 fiscal
year or any fiscal year thereafter.
2EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
3Section 3543.5 states, in pertinent 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.
2

BACKGROUND
Ramirez is a probationary teacher with the District and is a member of the Golden
Plains Teachers Association, CTA (Association), the exclusive representative for the District's
certified employees. Ramirez alleges that, at a February 13, 2001 4 District Board of Trustees
(board) meeting, the board heard complaints from parents regarding Ramirez's performance as
a teacher. Ramirez contends that the way the complaints were handled violated the collective
bargaining agreement (CBA) between the District and the Association. Soon after, Ramirez
contacted her Association representative and informed her supervisor that she had made this
contact. On or around March 7, the Association representative contacted her supervisor to
request information regarding the board proceedings on February 13, but the supervisor did not
respond. 	On or around March 14, Ramirez received a notice of non-reelection by the District.
She alleges that up to this point, her evaluations showed her performance to be satisfactory.
On or around March 20, Ramirez filed a grievance about the circumstances surrounding
her non-reelection. The grievance alleged that the District did not notify her of the complaint
and did not provide her with an opportunity to exercise her rights regarding the complaint in
violation of maintenance of standards provisions of the CBA.5 On or around April 4, the
District denied her grievance. She appealed to the next level on April 11. On or around
April 24, the District denied her grievance. The District did not meet with her regarding the
grievance until after the third level; however, there is no information in the charge as to
whether she or the Association requested such meetings.
4All dates refer to the year 2001.
5In reviewing the CBA, it appears that Ramirez may actually be referring to Article XX,
Public Charges, which addresses the handling of complaints against teachers and allows for the
Superintendent to render a final decision in the matter.
3

According to Ramirez, the CBA does not allow for binding arbitration of this issue. 6
She alleges that she was the only probationary teacher to exercise her rights under the CBA
and thus, the only probationary teacher whose employment was not renewed during both that
year and the previous school year. She also stated that, unlike she, no other employees had
threatened the District to have the Association represent them. On the contrary, she asserts that
parents had also complained about another first-year employee who did not protest to the
Association; that employee was reelected for employment the following school year.
In her unfair practice charge, Ramirez asks that PERB order the District to reelect her
and thus provide her with permanent status.
In the dismissal, the Board agent stated that the charge failed to state a prima facie case
under the test set forth in Novato Unified School District (1982) PERB Decision No. 210
(Novato) in that it did not show sufficient nexus between the protected conduct and the
District's adverse action except for the temporal proximity of the events. The Board agent
concluded that the only factors showing a nexus were Ramirez's contact with the Association
after the February 13 hearing and then notification of her supervisor. The Board agent further
found that the District's failure to comply with the CBA did not demonstrate nexus because it
occurred before Ramirez's non-reelection. In response to Ramirez's claim that her supervisor
did not respond to the Association representative's inquiries, the Board agent observed that
individual employees do not have standing to allege that the employer failed to provide the
"necessary and relevant" information to the Association required to discharge its duty of fair
representation. 	(Oxnard School District (Gorcey and Tripp) (1988) PERB Decision No. 667.)
6See footnote 5, above.
4

The Board agent also said that, at the February District board meeting, the board heard
a petition from several parents complaining about Ramirez's performance and seeking her
dismissal. In response to Ramirez's claims that she was treated differently from another
probationary teacher who received parent complaints, the Board agent found that the
complaints about the other probationary teacher described that teacher's assignments as too
easy. The Board agent determined that the complaints against Ramirez were more serious than
those against the other teacher. 7 The Board agent als~ found that there was insufficient nexus
in the District's failure to inform Ramirez of the reason for her dismissal because, under the
law, a school district is not required to inform a probationary employee of its reasons for
dismissal. (Grimsley v. Board of Trustees (1987) 189 Cal. App.3d 1440, 1443-1444 [235
Cal.Rptr. 85] (Grimsley) (interpreting former Education Code, sec. 44882, the language of
which is now contained in sec. 44929.21).)
On appeal, Ramirez asserts that sufficient nexus exists between her protected activities
and the notice of non-reelection to state a prima facie case. First, the District treated the two
probationary teachers who received complaints from parents differently. 	Only Ramirez talked
to the Association about the complaint. Also, the District policy does not distinguish between
the handling of serious versus non-serious complaints. Second, the timing of the letter of non-
reelection occurred shortly after Ramirez talked to the Association and the Association
representative contacted the District.
7 Other than the Board agent's dismissal, there is nothing in the record describing the
nature of the complaints against either Ramirez or the other probationary teacher.
Furthermore, there is nothing in the record describing the substance ofthe complaints against
Ramirez.
5

In response to Ramirez's appeal, the District requests that PERB dismiss the appeal.
Generally, the District asserts that the appeal fails to meet the technical requirements for
appeals in PERB Regulation 32635. 8
DISCUSSION
For the reasons which follow, the Board finds that Ramirez has stated a prima facie
violation of EERA section 3543.S(a).
To determine whether a charge alleges a prima facie case, the Board must assume that
the essential facts alleged in the charge are true. (San Juan Unified School District (1977)
EERB Decision No. 12.9) It is not the function of the Board agent to judge the merits of the
charging party's dispute. (Saddleback Community College District (1984) PERB Decision
No. 433; Lake Tahoe Unified School District (1993) PERB Decision No. 994.) Disputed facts
or conflicting theories of law should be resolved in other proceedings after a complaint has
been issued. (Eastside Union School District (1984) PERB Decision No. 466, pp. 6-7.) In this
case, where appropriate to deciding this matter, issues such as assessing the relative severity of
the undisclosed complaint against Ramirez, comparing the complaints against the two
probationary teachers with the subsequent actions taken by the District against each teacher,
and evaluating the District's application of Article XX of the CBA to each teacher, should be
left to the Board's hearing process.
To demonstrate a violation of EERA section 3543.S(a), the charging party must show
that: 	(1) the employee exercised rights under EERA; (2) the employer had knowledge of the
8PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
9Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
6

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; Carlsbad Unified School
District (1979) PERB Decision No. 89.)
Ramirez exercised protected rights by complaining to the Association about the
District's failure to follow the procedure in the CBA for parent complaints about teachers and
by the Association contacting the District on her behalf. The District had knowledge of
Ramirez's protected conduct both because she informed her supervisor of her complaint to the
Association and because the Association representative contacted her supervisor requesting
information regarding the February District board meeting.
Evidence of adverse action is also required to support a claim of discrimination or
reprisal under the Novato standard. (Palo Verde Unified School District (1988) PERB
Decision No. 689.) It is clear that by non-election of her employment, the employer took
adverse action against Ramirez.
The key question becomes whether there is a sufficient nexus between Ramirez's
protected activity and the adverse action taken by the District. For the reasons which follow,
the Board concludes that a sufficient nexus exists. Ramirez complained to the Association and
informed her supervisor of that complaint. Shortly afterward, the Association contacted her
supervisor. Within a couple of weeks, Ramirez received the notice of non-reelection from the
District. 10
10Under Education Code section 44929.21, the District is required to give notice of
non-reelection by March 15 of the previous year during the teacher's second year of
employment. Therefore, the District had to take this action in order to terminate Ramirez's
employment by that date, if for lawful reasons.
7

The timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264 (North Sacramento)), but 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 (State of California (Department of Transportation) (1984) PERB
Decision No. 459-S); (2) the employer's departure from established procedures and standards
when dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. 104); (3) the employer's inconsistent or contradictory justifications for its actions (State of
California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (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; (6) employer animosity towards union activists (Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento.)
The District refused to provide either Ramirez or her Association reasons for its failure
to renew her employment. As a rule, the District is not required to provide a reason for her
non-reelection as a probationary employee. (Grimsley, at 1443-1444.) However, although
PERB may not review the sufficiency of the reason for denying reelection, the District is still
subject to the scrutiny of PERB when such denial is alleged to result from retaliation for
exercise of a protected right. (McFarland Unified School District v. Public Employment
Relations Board (1991) 228 Cal. App. 3d 166, 169 [11 Cal.Rptr.2d 405] (McFarland).)
8

Looking at the facts alleged by Ramirez, the District treated Ramirez differently from
the only other probationary teacher receiving parent complaints; the District did not renew
Ramirez's employment for the following school year but chose to reelect the other teacher.
Ramirez had contacted her Association representative but the other teacher did not. Only
Ramirez, and not the other teacher, told her supervisor that she contacted the Association. The
Association representative called the supervisor for information only on Ramirez's behalf, and
not for the other teacher. The supervisor did not return the Association representative's call.
11
Therefore, Ramirez has stated a prima facie case, based on allegations
of
proximity in
time between her protected activities and the adverse action taken
by
the District, and
of
the
District's disparate treatment
of
her in comparison with the other probationary teacher who
received parent compiaints.
12
Under these circumstances, the Board finds it appropriate to
remand this case to the Board agent for issuance
of
a complaint.
11
Although the Board agent correctly states that individual employees lack standing to
allege that the employer failed to provide the "necessary and relevant" information to the union
required to discharge its duty
of
fair representation (Oxnard School District (Gorcey and Tripp)
(1988) PERB Decision No. 667), the District's lack
of
responsiveness could also be evidence
of a general anti-union animus. (See McFarland Unified School District (1990) PERB
Decision No. 786, at pp. 40-41.)
12
The alleged violation of the CBA (the procedure for addressing parent complaints
against teachers) occurred before Ramirez's protected activity and so does not, on its own,
provide a basis for nexus; however, such violation may provide evidence of general anti-union
animus. (See McFarland, cited above.)
9

ORDER
The unfair practice charge in Case No. SA-CE-2050-E is hereby REMANDED to the
Office
of
the General Counsel with instructions to issue a complaint in this matter.
Members Baker and Neima joined in this Decision.