Los Angeles Community College District (PERB 1325E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DAVID 	JOHN SANCHEZ,
Charging 	Party,
v.
LOS ANGELES 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
) 	Case No. 	LA-CE-4006
PERB Decision No. 	1325
April 13, 	1999
)
)
)
)
Appearance: 	David John Sanchez, 	on his 	own behalf.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before 	the 	Public Employment
Relations 	Board 	(Board) 	on appeal 	of 	a Board agent's 	dismissal
(attached) 	of David Sanchez' 	(Sanchez) 	unfair practice charge.
Sanchez' 	charge 	alleged that 	the Los Angeles Community College
District 	violated 	section 	3543.5(a) 	of 	the 	Educational 	Employment
Relations Act 	(EERA)1 when it 	terminated his 	employment 	in
retaliation 	for 	his 	protected 	activities.
1EERA is 	codified at Government Code section 3540 	et 	seq.
Section 3543.5 provides, 	in relevant part:
It shall be unlawful 	for a public school
employer to do any of the 	following:
(a) 	Impose or threaten to impose reprisals on
employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because of their exercise of rights
guaranteed by this 	chapter. 	For purposes of
this subdivision, 	"employee" includes an
applicant 	for employment or reemployment.
I)

The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the 	unfair practice 	charge, 	the 	Board 	agent's 	warning
and dismissal 	letters, 	and Sanchez' 	appeal. 	The Board finds 	the
warning 	and 	dismissal 	letters 	to 	be 	free 	from prejudicial 	error
and adopts 	them as 	the 	decision 	of 	the 	Board itself.
ORDER
The 	unfair practice 	charge 	in Case No. 	LA-CE-4006 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey 	and Member Amador 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(41 5) 439-6940
PERO
January 21, 	1999
David 	Sanchez 	Ph.D.
RE: 	David John Sanchez v. 	Los Angeles 	Community College
District
Unfair 	Practice 	Charge No. 	LA-CE-4006
DISMISSAL AND 	REFUSAL 	TO 	ISSUE 	A 	COMPLAINT
Dear Dr. 	Sanchez:
In 	the 	above-referenced 	charge 	you 	allege 	the 	Los Angeles
Community 	College 	District 	violated 	the 	Educational 	Employment
Relations Act 	(EERA or Act) 	§ 	3543.5 (a) 	and 	(b) 	by retaliating
against 	you 	for your participation 	in protected 	activities.
I 	indicated to you, 	in my attached letter dated January 13, 	1999,
that 	the 	above-referenced charge 	did not 	state 	a prima 	facie
case. 	You were 	advised that, 	if 	there were 	any factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should 	amend 	the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew 	it 	prior 	to
January 20, 	1999, 	that 	the charge would be dismissed.
I 	have 	not 	received 	either 	an amended 	charge 	or 	a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing the 	charge based on the
facts 	and reasons 	contained in my January 13, 	1999, 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing
an appeal 	to the Board itself within twenty 	(2 0) 	calendar days
after service of this dismissal. 	(Cal. 	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 p.m.) 	or Sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of 	Civil 	Procedure 	section 	1013 	shall 	apply.
The 	Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
===-- 	-- -

LA-CE-4006
Dismissal 	Letter
Page 2
If you file a timely appeal of the refusal 	to issue a complaint,
any other party may file with the Board an original 	and five
copies of a statement 	in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents authorized to be 	filed herein must also be 	"served"
upon all parties to the proceeding, 	and a 	"proof of service"
must 	accompany each copy of a document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample form.) 	The
document will be considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension of Time
A request 	for an extension of time, 	in which to file a document
with the Board itself, 	must be in writing and filed with the
Board at 	the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of service of 	the request upon each
party. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become 	final when the time 	limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
TAMMY L. SAMSEL
Regional Director
Attachment
cc: 	Herbert C. 	Spillman

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
January 13, 	1999
David Sanchez Ph.D.
RE: 	David John Sanchez v. 	Los Angeles Community College
District
Unfair Practice Charge No. 	LA-CE-4006
WARNING LETTER
Dear Dr. Sanchez:
In the above-referenced charge you allege the Los Angeles
Community College District violated the Educational 	Employment
Relations Act 	(EERA or Act) 	§ 3543.5(a) 	and 	(b) 	by retaliating
against you for your participation in protected activities. 	My
investigation revealed the 	following information.
On August 4, 	1998, 	Dean of Academic Affairs David Morin dismissed
you from your teaching position at the East Los Angeles College.
Your charge alleges 	the District took this action because of your
union and political activities. 	The charge provides, 	in
pertinent part:
Terminated 	for my union and political
activities. 	The Chicano Studies Department
was distributing anti-David Sanchez literature
on campus 	to turn students and faculty
against me. 	(La Verdad Newspaper) 	Also the
East Los Angeles Campus News was writing
articles against David Sanchez to as a form
of charactor assasination. 	The Department
Chair for Chicano Studies wrote an article
against David Sanchez 	in the student
newspaper. 	(E.L.A. 	College Campus News.
This 	resulting from the fact that David
Sanchez is active in the Teachers Union and
is active in civil rights group known as the
-Brown Berets.* [sic]
Terminated for retaliation and filing of past
grievances. 	David Sanchez had questioned the
Chicano Studies Dept. 	as to why were hourly
staff being hired after the start of the
semester thus giving more working hours to
full-time instructors. 	This causing the
Department 	to retaliate against David
Sanchez.
'
' (

LA-CE-4006
Warning Letter
Page 2
The 	charge alleges 	the above-referenced protected activities
motivated the District to retaliate against you. 	You allege that
the 	connection between your protected activities and the adverse
action taken against you is demonstrated by the District's
failure to follow proper evaluation procedures, 	and a newspaper
article written by the Department Chair against you. 	More
specifically, 	the charge states:
This department was using information
received from students 	instead of 	talking to
David Sanchez. 	The evaluation was bases on a
ten-minute observation of 	teachers
performance in the classroom. 	Total bias to
academic freedom. 	All teachers do not teach
the same. 	Chicano Studies instructors are
not qualified to evaluate a Ph.D. 	instructor
since evaluators had a lessor academic
degree. 	Evaluation was judged upon
retaliation, 	[sic]
The above-stated information fails to state a prima facie
violation of the EERA for the reasons that follow.
To demonstrate a violation of EERA section 3543.5(a), 	the
charging party must show that: 	(1) 	the employee exercised rights
under EERA; 	(2) 	the employer had knowledge of the exercise of
those rights; 	and 	(3) 	the employer imposed or threatened to
impose reprisals, 	discriminated or threatened to discriminate,
or otherwise 	interfered with, 	restrained or coerced the employees
because of the exercise of those rights. 	(Novato Unified School
District 	(1982) 	PERB Decision No. 	210; 	Carlsbad Unified School
District 	(1979) 	PERB Decision No. 	89; Department of Developmental
Services 	(1982) 	PERB Decision No. 228-S; 	California State
University 	(Sacramento) 	(1982) 	PERB Decision No. 	211-H.)
Although the timing of the employer's adverse action in close
temporal proximity to the employee's protected conduct 	is an
important factor, 	it does not, without more, 	demonstrate the
necessary connection or 	"nexus" between the adverse action and
the protected conduct. 	(Moreland Elementary School District
(1982) 	PERB Decision No. 	227.) 	Facts establishing one or more
of 	the following additional 	factors must also be present:
(1) 	the employer's disparate treatment of the employee; 	(2) 	the
employer's 	departure 	from established procedures 	and standards
when dealing with the employee; 	(3) 	the employer's inconsistent
or contradictory justifications for its actions; 	(4) 	the
employer's cursory investigation of the employee's misconduct;
(5) 	the employer's failure to offer the employee justification at
the time it took action or the offering of exaggerated, 	vague, 	or
ambiguous reasons; 	or 	(6) 	any other facts which might demonstrate
(

LA-CE-4006
Warning Letter
Page 3
the employer's unlawful motive. 	(Novato Unified School District.
supra; 	North Sacramento School District 	(1982) 	PERB Decision
- -No. 264.)
Although the 	charge alleges you engaged in protected activities
the charge fails to indicate when you engaged in these
activities. 	Without this information the charge fails to
establish any temporal proximity between your protected
activities and the adverse action. 	A charging party must allege
the "who, what, when, where, and how" of an unfair practice.
(United Teachers-Los Angeles 	(Ragsdale) 	(1992) 	PERB Decision
944.) 	Mere legal conclusions are insufficient. 	(See State of
California 	(Department of Food and Agriculture 	(1994) 	PERB
Decision No. 	1071-S.)
My investigation revealed that you filed only one grievance at
the East Los Angeles College. 	You filed that grievance in 1995.
The several year lapse in time between the filing of that
grievance and the alleged retaliation does not support a finding
of nexus. 	Nor does the charge provide other facts indicative of
nexus.
The 	charge alleges 	the Department Chair wrote an article which
demonstrates his or her bias against you. 	The charge did not
include any newspaper article. 	My investigation revealed only
one newspaper article about you. 	The East Los Angeles Campus
News 	included an article entitled, 	"Instructor selling textbooks
in class violates policy." 	However, 	that article was not written
by the Department Chair, 	but by a student Laurette Espinoza. 	Nor
did that article refer to your involvement 	in protected
activities. 	Thus, 	the charge fails to provide facts
demonstrating the Department Chair's bias motivated the District
to dismiss you.
The charge similarly fails 	to demonstrate that the District
failed to follow proper evaluation procedures by allowing
evaluators with 	"lessor degrees" 	to evaluate you. 	The charge
does not provide, 	and my investigation did not reveal that the
District is required to use Ph.D. 	level individuals to evaluate
an instructor with a Ph.D. 	Thus, 	the charge does not provide
facts 	demonstrating the District departed from established
procedures.
For the above-stated reasons, 	the charge fails to state a prima
facie violation of the EERA. For these reasons the charge, 	as
presently written, 	does not state a prima facie case. 	If there
are any factual 	inaccuracies 	in this letter or additional 	facts
which would correct the deficiencies explained above, 	please
amend the charge. 	The amended charge should be prepared on a
standard PERB unfair practice charge form, 	clearly labeled First

LA-CE-4006
Warning 	Letter
Page 4
Amended Charge, 	contain all 	the facts and allegations you wish to
make, 	and be signed under penalty of perjury by the charging
party. 	The amended charge must have the case number written on
the top right hand corner of the charge form. 	The amended charge
must be served on the respondent's representative and the
original proof of service must be filed with PERB. 	If I do not
receive an amended charge or withdrawal 	from you before
January 20. 	1999. 	I shall dismiss your charge. 	If you have any
questions, please call me at 	(415) 	439-6940.
Sincerely,
TAMMY SAMSEL
Regional Director