Lindsay Unified School District (PERB 0936E)

STATE 	OP 	CALIFORNIA
DECISION OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LETICIA 	GONZALEZ,
Charging 	Party,
v.
LINDSAY UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1447
PERB Decision No. 	936
May 22, 	1992
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Appearances: 	Leticia Gonzalez, 	on her own behalf; 	Lozano, 	Smith,
Smith, 	Woliver & Behrens by Ellen M. 	Jahn, 	Attorney, 	for Lindsay
Unified 	School 	District.
Before Hesse, 	Chairperson; 	Camilli and Caffrey, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by Leticia Gonzalez
(Gonzalez) 	of a PERB Board agent's dismissal 	(attached hereto) 	of
her unfair practice charge. 	In her charge, 	Gonzalez 	alleged that
the 	Lindsay Unified School 	District violated 	section 	3543.5(a) 	of
the 	Educational Employment Relations Act 	(EERA)1 by refusing to
rehire 	her after 	she 	advocated 	for bilingual 	education 	issues.
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Section 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.
(
.,,

The 	Board has 	reviewed the Board agent's warning and
dismissal 	letters, 	and 	finding them to be 	free of prejudicial
error, 	adopts 	them as the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	S-CE-1447 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
N
	2

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
February 10, 	1992
Leticia 	Gonzalez
Re: 	Leticia Gonzalez v. 	Lindsay Unified School 	District
Unfair Practice Charge Case No. 	S-CE-1447
DISMISSAL 	LETTER
Dear Ms. 	Gonzalez:
On August 30, 	1991, 	you filed a charge that the Lindsay Unified
School 	District 	(District) 	violated Government Code 	section
3543.5(a) 	(the EERA). 	Specifically, 	you allege that the District
retaliated 	against you by refusing 	to 	rehire 	you 	because 	you
advocated 	for 	and 	raised 	issues 	concerning 	Limited 	English
Proficient 	(LEP) 	students 	and the 	Bilingual 	Education Program at
Jefferson Elementary 	School.
I 	indicated to you 	in my attached 	letter dated October 4, 	1991,
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 	that would 	correct 	the
deficiencies 	explained in that 	letter, 	you 	should amend the
charge accordingly. 	You were 	further advised 	that unless 	you
amended the 	charge to 	state a prima 	facie 	case, 	or withdrew it
prior to October 	15, 	1991, 	the charge would be dismissed. 	You
requested additional 	time 	to 	file 	an amended charge. 	We 	agreed
to an extension of time until October 21, 	1991. 	On October 	21,
1991, 	you filed your first amended charge. 	In addition, 	you also
submitted numerous 	unorganized 	notes 	and 	exhibits 	(totalling 	154
pages) 	in support of your amended 	charge.
Your amended charge 	alleges 	the 	following new facts, 	which 	I 	have
summarized:
1. 	You discussed your 	concern of 	discrimination against 	the
teachers 	and the 	Bilingual 	Program with 	the 	School's 	Bilingual
Resource Teacher, 	Irene Rosales. 	Ms. 	Rosales 	admitted to knowing
about 	the problems 	but discouraged you 	from pursuing 	the 	matter.
You 	suggested 	to her that you 	seek the 	assistance 	of 	the 	Lindsay
Teachers' 	Union and 	she responded that 	the Union was 	not 	Pro-
Bilingual. 	In addition, 	Pat Baker, 	the School's English Resource
Teacher, 	also warned you not to 	speak out on concerns. 	Ms 	Baker

S-CE-1447
Page 2
informed you that 	the District 	had ways 	of dealing with teachers
who do.
2. 	On or about October 24, 	1990, 	you confronted Melissa Lucas,
Grade Level 	2 	representative 	about 	not being informed of 	the
changes 	in the 	schedule. 	Ms. 	Lucas responded that 	she assumed
someone would tell 	you.
3. 	On or about January 24, 	1991 	you met with Principal Mike
McQuary 	and 	Second 	Grade 	Level 	Representative 	Lucas 	in order 	to
resolve 	the problems 	of 	your being 	excluded 	from being 	informed
of 	grade 	level 	events 	and having the 	opportunity to give 	input 	on
decisions. 	During the meeting you offered 	suggestions 	to 	insure
communication with 	grade 	level 	and between 	teachers 	and 	the
Principal.
4. 	After this 	meeting you again confronted Principal 	McQuary
and pointed out 	that 	the 	communications problems 	still 	continued
and 	you were 	still 	being 	excluded 	from decision making.
5. 	On February 	19, 	1991, 	Principal McQuary held a meeting,
which you were 	informed had 	been cancelled, 	and met with 	only the
White, 	English only grade 	2 	teachers 	to discuss 	the 	integration
period.
6. 	On February 	19, 	1991, 	you contacted Rita Henry, 	Bilingual
Resource Teacher of Washington School 	about your concerns 	of
problems of communication, 	exclusion, 	discrimination at Jefferson
School 	and the discourteous behavior of ten White teachers. 	Ms.
Henry responded that 	she was 	aware 	of 	the problems 	and how Ms.
Lucas and the other 	(white) 	teachers 	ran things. 	She also
discouraged 	you 	from pursuing 	the 	matter.
7. 	On February 28, 	1991, 	during a 	school wide 	staff meeting you
objected 	to 	the 	exclusion of 	Bilingual 	teachers 	from 	staff
meetings 	and 	from having 	input 	in policy decisions 	affecting
language minority students, 	when white, 	English only teachers
were 	offered 	such opportunities.
8. 	Immediately after the 	school 	staff 	meeting of 	February 	28,
1991, 	Principal 	McQuary approached you and requested that you
arrange 	a 	meeting with him to 	settle 	the matter.
9. 	On March 	1, 	1991, 	Principal McQuary informed you that the
District 	had 	directed 	him 	to 	not 	rehire 	you 	for 	employment 	for
the 	1991-92 	school 	year. 	McQuary 	informed you at 	this 	time that
you were 	not being rehired because 	of 	the budget 	crisis. 	Later
in 	the day you 	again 	asked 	McQuary 	his 	reason 	for 	not 	rehiring
you 	and 	he 	responded 	that 	he 	had 	heard 	that 	you were 	not 	getting
along with other 	teachers 	and 	refused 	to 	discuss 	the 	issue with
you 	further.

S-CE-1447
Page 3
Based on the 	allegations 	set 	forth 	above 	and 	the 	reasons
contained in this 	letter and my letter of October 4, 	1991, 	I 	find
that you have 	failed to 	state 	a prima 	facie violation 	that 	the
District violated EERA section 	3543.5(a).
In order 	to 	state a prime 	facie 	case 	a Charging Party must 	allege
and 	ultimately 	establish 	that 	the 	conduct complained 	of 	either
occurred 	or was 	discovered within 	the 	six-month 	period
immediately preceding the 	filing of 	the 	charge. 	(San Dieguito
Union High School 	District 	(1982) 	PERB Decision No. 	194.)
Government Code 	section 3514.5(a) 	states 	in relevant part:
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, 	. 	. 	.
Your charge was 	filed with PERB on August 	30, 	1991, 	which means
that 	any 	alleged 	unfair practice 	should have 	occurred 	during 	the
six-month 	statutory period which began on February 	26, 	1991. 	The
allegations 	contained 	in paragraphs 	1-6 	above describe 	conduct by
the District which occurred prior to February 26, 	1991. 	This 	is
beyond the 	six-month statute of limitations, 	therefore, 	those
allegations 	contained in your 	charge must be dismissed.
The 	allegations 	contained 	in paragraphs 	7-8 	appear 	to 	allege 	that
the District violated EERA section 	3543.5(a) 	by 	refusing to
rehire you. 	To demonstrate 	a violation of 	EERA 	section
3543.5(a), 	you must show that: 	(1) 	the employee exercised rights
under the 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.)
Your 	amended 	charge 	fails 	to 	demonstrate 	that 	the 	District's
refusal 	to 	rehire 	you was 	because 	of 	your 	exercise 	of 	rights
protected by the EERA. 	Accordingly, 	your 	charge 	fails 	to 	state 	a
prima 	facie violation of 	section 	3543.5(a) 	and 	I 	am dismissing
your 	charge based 	on 	the 	facts 	and 	reasons 	contained 	in 	this
letter and my 	letter of October 4, 	1991.

S-CE-1447
Page 4
I 	have 	also 	considered 	the 	notes 	and 	exhibits 	you 	submitted 	in
support of your amended charge. 	This 	material was 	not 	organized
and I was unable to determine what connection, 	if any, 	this
material had in reference to your charge. 	PERB Regulation 	32615
(California Code of Regs., 	tit. 	8, 	sec. 	32615) 	requires that your
charge 	contain a 	clear and 	concise 	statement of 	the 	facts 	and
conduct 	alleged 	to 	constitute 	an unfair practice. 	Your notes 	and
exhibits 	fail to meet this 	standard, 	therefore, 	the allegations,
if any, 	contained 	in them are also dismissed.
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 	(California Code of Regs., 	tit. 	8,
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 	(5:00 p.m.) 	or sent by telegraph,
certified 	or Express 	United 	States 	mail postmarked no 	later 	than
the last date 	set for filing 	(California Code of Regs., 	tit. 	8,
sec. 	32135). 	Code of Civil Procedure section 	1013 	shall apply.
The Board's address 	is:
. . ..
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 	calendar days
following the date 	of 	service of 	the 	appeal 	(California 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 California 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 	calendar days 	before 	the 	expiration of

S-CE-1447
Page 5
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 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32132).
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By .
Michael E. 	Gash
Regional 	Attorney
Attachment
cc: 	Ellen M. 	Jahn
Lozano, 	Smith, 	Smith, 	Woliver & Behrens
2444 Main St., 	Suite 26,0
Fresno 	CA 	93721

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT RELATIONS BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
October 4, 	1991 	. .
Leticia 	Gonzalez
Re: 	Leticia Gonzalez v. 	Lindsay Unified School 	District
Unfair Practice Charge No. 	S-CE-1447
WARNING 	LETTER
Dear Ms. Gonzalez:
On August 30, 	1991, 	you filed a charge that the Lindsay Unified
School 	District 	(District) 	violated Government Code 	section
3543.5(a) 	(the EERA). 	Specifically, 	you allege that the District
refused 	to 	rehire 	you because 	you 	advocated 	for 	and 	raised 	issues
concerning Limited English Proficient 	(LEP) 	students 	and the
Bilingual 	Education Program at Jefferson Elementary School. 	My
investigation revealed 	the 	following 	facts.
In about December 	1990, 	Charging Party confronted Principal, 	Mike
McQuary, 	about 	not being 	informed about the 	new School publishing
center. 	McQuary 	admitted 	to Charging 	Party 	that 	he 	had 	selected
those 	employees who would be 	informed.
Throughout 	the 	1990-91 	school 	year Charging 	Party was 	not
informed of grade 	level 	events, 	or was 	given notice at the 	last
minute which prevented Charging 	Party 	from participating 	in the
events. 	Charging Party was 	excluded 	from the 	staff planning of
such events.
On or about February 28, 	1991, 	during the grade 2 	staff meeting,
Charging Party 	objected 	to 	the 	exclusion of 	Bilingual 	teachers
from 	staff 	meetings 	and 	from having 	input 	in policy decisions
affecting 	language 	minority 	students.
On or about March 	1, 	1991, 	during a meeting with the Principal
and the School union representative, 	Harry Schein, 	the Principal
informed Charging Party that her 	contract was 	not 	going 	to be
renewed 	for the 	1991-92 	school 	year.

Charging Party contends 	District Superintendent, 	Ena Soflin,
stated in a newspaper article dated March 	6, 	1991, 	that the
emergency 	credentialed 	Bilingual 	teachers 	may be 	rehired.
Charging 	Party was 	the 	only 	regularly 	credentialed 	Bilingual
teacher who was 	laid off.
The Principal 	stated 	in Charging Party's 	final evaluation, 	which
Charging Party first examined on May 	31, 	1991, 	that Charging
Party would not 	be 	rehired 	for 	the 	1991-92 	school 	year because
she did not get along with her grade 	level teachers, 	their
Representative, 	and her administrative 	superiors.
Based on the allegations 	set 	forth above, 	I 	do not 	find that you
have 	established a prima 	facie violation of 	section 3543.5(a) 	of
the EERA.
To demonstrate a violation of EERA section 3543.5(a), 	the
charging party must 	show that: 	(1) 	the 	employee 	exercised rights
under the 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
any of 	these 	factors 	and 	therefore does 	not 	state 	a prima 	facie
violation of section 3543.5(a).
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 any additional 	facts 	that would correct 	the
deficiencies 	explained above, 	please 	amend the 	charge
accordingly. 	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 must 	be 	signed under penalty 	of perjury by the 	charging
party. 	The amended charge must be 	served on the respondent 	and
the original proof of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended 	charge 	or withdrawal 	from you 	before
October 	15, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Michael E. 	Gash
Regional 	Attorney
MEG:ere