Sacramento City Unified School District (Vellanoweth) (PERB 1356E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
•
ALEXANDER P. 	VELLANOWETH,
Charging 	Party,
v.
SACRAMENTO CITY UNIFIED SCHOOL
DISTRICT,
Respondent.
)
)
) 	Case No. 	SA-CE-1909
PERB Decision No. 	1356
October 	7, 	1999
)
)
)
)
)
)
)
Appearances: 	Alexander P. 	Vellanoweth, 	on his own behalf;
Atkinson, 	Andelson, 	Loya, 	Ruud & Romo by James S. 	Yarnell,
Attorney, 	for Sacramento City Unified School District.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment Relations Board 	(Board) 	on appeal by Alexander P.
Vellanoweth 	(Vellanoweth) 	of 	a Board agent's 	dismissal 	(attached)
of his unfair practice charge. 	In the charge, 	Vellanoweth
alleged 	that 	the 	Sacramento 	City Unified 	School 	District
(District) 	retaliated against him for his 	exercise of protected
conduct 	and violated section 	3543.5(a) 	of 	the 	Educational
Employment Relations Act 	(EERA)1 when it 	failed to hire him as a
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

summer 	school 	coordinator 	or 	summer school 	principal.
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including Vellanoweth's 	original 	and amended unfair practice
charge, 	the Board agent's warning and dismissal 	letters,
Vellanoweth's 	appeal 	and 	the District's 	response 	thereto. 	The
Board 	finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and hereby adopts 	them as 	the 	decision 	of 	the
Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	SA-CE-1909 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
•
J u l y 	3 0 , 	1999
Alexander 	P. 	Vellanoweth
Re: 	DISMISSAL 	LETTER
Alexander -P. 	Vellanoweth v. 	Sacramento 	City Unified School
District
Unfair 	Practice 	Charge 	N o . 	SA-CE-1909
Dear Mr. 	Vellanoweth:
On 	June 	2 4 , 	1999, 	you 	filed 	the 	above-referenced unfair practice
charge 	in 	which 	you 	allege 	that 	the 	Sacramento 	City 	Unified
School 	District 	(District) 	violated 	section 	3543.5 	(a) 	of 	the
Educational 	Employment 	Relations Act 	(EERA) 	when 	it 	retaliated
against 	you 	in 	February, 	1999, 	by 	failing 	to 	hire 	you 	as 	either
Middle 	School 	Summer 	Coordinator 	or 	Summer 	School 	Principal.
Your 	charge 	asserts 	that 	the 	District 	failed 	to 	hire 	you 	for
these 	extra 	assignments 	as 	a 	result 	of 	your 	having 	engaged 	in
earlier protected 	conduct 	including 	the 	filing 	of 	an unfair 	.
practice charge. 	(PERB Case No. 	SA-CE-1831).
You 	describe 	your 	protected 	conduct 	a s :
(1) 	Speaking at 	a District 	Board meeting on May 	12, 	1997. 	You
assert 	you 	objected 	to 	the 	reorganization 	of 	the 	District
and 	the 	downsizing 	of 	the 	bilingual 	department.
(2) 	Filing grievances 	in 	1997 	and 	1998 	through your 	exclusive
representative, 	the 	Sacramento 	City Teachers Association
(SCTA), 	as 	a result 	of 	the District's personnel practices.
(3) 	Filing 	and processing 	of 	the 	above-referenced 	PERB 	unfair
practice 	charge 	No. 	SA-CE-1831. 	This 	charge 	resulted 	in a
settlement 	in 	September 	1998 	which 	you 	assert 	placed 	you 	as
a 	resource 	teacher 	at 	Oak 	Ridge 	Elementary 	School 	with 	the
commitment 	that 	the 	District 	would 	not 	impose 	any 	further
retaliation.
I 	indicated 	to you, 	in my attached 	letter 	dated July 20, 	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 	July
30, 	1999, 	the 	charge would be 	dismissed.

SA-CE-1909
Dismissal 	Letter
Page 2
On July 29, 	1999, 	you 	filed an amended charge which attempts 	to
perfect 	the 	deficiencies 	as 	spelled out 	in my July 20 	letter.
First, 	you attempt 	to demonstrate 	nexus 	by providing a 	list 	of
summer 	school 	management 	positions 	from 	1998 	which 	lists 	35
management 	positions. 	You 	contend that 	of 	the 	35 	named
individuals 	from the 	1998 	list, 	13 	were 	rehired 	for 	summer school
1999. 	(7 	of 	the 	28 	1998 	summer school principals were rehired as
summer 	school 	principals 	for 	1999.)
Next, 	to demonstrate 	that 	the persons making decisions 	as 	to
summer employment 	had knowledge 	of 	your protected activity, 	you
have provided a 	September 21, 	1998 	letter 	from Lorraine Emery,
Director of 	Certificated Personnel 	for the 	District, 	addressed to
you 	and 	copied 	to 	the 	Superintendent, 	Associate 	Superintendents
and Directors. 	You assert 	that 	this 	letter despite 	its benign
contents, 	served as 	a poison pill 	that 	has 	tainted you as 	a
troublemaker 	and thus, 	caused the 	summer 	school 	selection
committee 	to bypass 	you.
This 	additional 	information does 	not 	perfect 	the 	deficiencies 	of
the 	charge 	and 	therefore 	I 	am dismissing 	the 	charge 	based on the
facts 	and reasons 	contained in my July 20, 	1999, 	letter.1
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by filing
an appeal 	to 	the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the Board must 	contain
the 	case 	name 	and number, 	and the original 	and five 	(5) 	copies 	of
all 	documents 	must 	be provided 	to 	the 	Board.
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, 	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. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 32135(a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
•"•o the 	extent you contend that your speaking at 	a public
meeting 	and 	filing grievances 	was 	your organizational 	activity,
your charge 	may also be 	deferrable 	under 	the provisions 	of
Article 	18.1 	of 	the 	written 	agreement 	between 	the 	District 	and
SCTA and 	PERB precedent. 	See 	Lake 	Elsinore 	School 	District 	(1987)
PERB Decision No. 	646.
T
(

SA-CE-1909
Dismissal 	Letter
Page 3
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. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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
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 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. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(c) .)
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 Regs., 	tit. 	8, 	sec. 	32132.)
(

SA-CE-1909
Dismissal 	Letter
Page 4
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By Roger 	Smith
Board 	Agent
Attachment
cc: 	James Scot Yarnell

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
•
July 20, 	1999
Alexander 	P. 	Vellanoweth
Re: 	WARNING 	LETTER
Alexander 	P. 	Vellanoweth 	v. 	Sacramento 	City 	Unified 	School
District
Unfair 	Practice 	Charge 	N o . 	SA-CE-1909
Dear Mr. 	Vellanoweth:
On June 	2 4 , 	1999, 	you 	filed 	the 	above-referenced unfair practice
charge 	in 	which 	you 	allege 	that 	the 	Sacramento 	City 	Unified
School 	District 	(District) 	violated section 3543.5 	(a) 	of 	the
Educational 	Employment 	Relations 	Act 	(EERA) 	when 	it 	retaliated
against 	you 	in 	February, 	1999, 	by failing 	to 	hire 	you 	as 	either
Middle 	School 	Summer 	Coordinator 	or 	Summer 	School 	Principal.
Your 	charge 	asserts 	that 	the 	District 	failed 	to 	hire 	you 	for
these 	extra 	assignments 	as 	a 	result 	of 	your 	having 	engaged 	in
earlier 	protected 	conduct 	including 	the 	filing 	of 	an 	unfair
practice charge. 	(PERB Case N o . 	SA-CE-1831).
You 	describe 	your protected 	conduct 	as:
(1) 	Speaking 	at 	a District 	Board meeting on May 	12, 	1997. 	You
assert 	you 	objected 	to 	the 	reorganization 	of 	the 	District
and 	the 	downsizing 	of 	the 	bilingual 	department.
(2) 	Filing 	grievances 	in 	1997 	and 	1998 	through your 	exclusive
representative, 	the 	Sacramento City Teachers Association, 	as
a 	result 	of 	the 	District's 	personnel 	practices.
(3) 	Filing 	and processing 	of 	the 	above-referenced 	PERB 	unfair
practice 	charge No. 	SA-CE-1831. 	This 	charge 	resulted 	in a
settlement 	in 	September 	1998 	which you 	assert 	placed you 	as
a 	resource 	teacher 	at 	Oak 	Ridge 	Elementary 	School 	with 	the
commitment 	that 	the 	District 	would 	not 	impose 	any 	further
retaliation.
Your 	charge 	contends 	that 	in December 	1998, 	you 	applied 	for
Middle 	School 	Coordinator 	and 	Elementary 	Summer 	School 	Principal.
You 	assert 	that 	you 	served 	as 	Middle 	School 	Coordinator 	for 	the
District 	in 	1995 	and 	that 	you 	were 	hired 	as 	a 	Summer 	School
Principal 	for 	the 	years 	1996-1999 	at 	Earl 	Warren, 	John Bidwell
and Ethel 	I. 	Baker 	elementary 	schools. 	You provided 	evidence
that 	your 	previous 	summer 	work 	was 	praiseworthy.

C
Warning 	Letter
SA-CE-1909
July 20, 	1999
Page 2
You 	state 	that 	you believe 	that 	but 	for your having 	filed the
earlier 	PERB 	charge, 	the 	filing of grievances, 	and 	speaking out
about 	the 	reorganization of 	the 	District, 	the 	District 	would have
hired you 	again as 	either 	a 	summer 	school 	coordinator 	or
principal.
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.)
You have provided no 	facts 	to 	demonstrate 	that 	the 	persons 	making
decisions 	regarding 	summer 	employment 	had 	any knowledge 	of 	your
earlier protected conduct, 	thus, 	failing to demonstrate 	employer
knowledge. 	You indicate 	that 	the District's personnel
administrator, 	Don Giusti, 	was present at this year's 	interviews,
but 	hadn't 	been present 	at 	interviews 	in the past 	when you scored
higher in your evaluations. 	Yet, 	you point 	out 	that 	Giusti was
not 	an evaluator, 	but 	rather, 	he served as a 	facilitator.
The 	timing of 	the 	employer's 	adverse 	action 	in 	close 	temporal
proximity 	to 	the 	employee's 	protected 	conduct 	is 	an 	important
factor, 	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; 	(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.)----------
You have 	not 	demonstrated any 	"nexus" 	between your being 	denied
the 	summer 	employment 	and your protected conduct. 	You 	indicate
( 	(

Warning 	Letter
SA-CE-1909
July 20, 	1999
Page 3
in your charge that you did not 	score well 	in the interview and
evaluation process.
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this 	letter or additional 	facts which would correct the
deficiencies explained above, 	please amend the charge. 	The
amended charge 	should be prepared on a standard PERB unfair
practice charge form, 	clearly labeled First Amended Charge,
contain all 	the facts and allegations you wish to make, 	and
be 	signed under penalty of perjury by the charging party. 	The
amended charge must 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 July 30, 	1999, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	327-8387.
Roger Smith
Board Agent