Los Angeles Unified School District (Summer) (PERB 1192E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JENA ANNE 	SUMMER,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-3708
PERB Decision No. 	1192
April 9, 	1997
Appearances: 	Jena Anne Summer, 	on her own behalf; 	Rochelle J.
Montgomery, 	Attorney, 	for Los Angeles Unified School District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This case is before the Public
Employment Relations 	Board 	(Board) 	on appeal by Jena Anne 	Summer
(Summer) 	of a Board agent's dismissal 	(attached) 	of her unfair
practice 	charge. 	In the 	charge, 	Summer alleged that 	the
Los Angeles Unified School 	District 	(District) 	violated
section 3543.5(a) 	and 	(b) 	of 	the Educational Employment Relations
Act 	(EERA)1 by retaliating against her because of her exercise of
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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
)
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(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
protected 	rights.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
Board agent's warning and dismissal 	letters, 	Summer'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.
The unfair practice 	charge 	in Case No. 	LA-CE-3708 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
December 11, 	1996
Jean Anne 	Summer
Re: 	Jean Anne Summer v. 	Los Angeles Unified School District
Unfair Practice Charge No. 	LA-CE-3708
DISMISSAL 	AND 	REFUSAL 	TO 	ISSUE 	A COMPLAINT
Dear Ms. 	Summer:
In the above-referenced unfair practice 	charge, 	filed August 	9,
1996, 	you allege 	the Los Angeles Unified School District
(District) 	violated Educational 	Employment 	Relations Act 	(EERA or
Act) 	section 3543.5(a) 	and 	(b).
On October 7, 	1996, 	I 	issued a warning letter explaining the
original 	charge 	failed to demonstrate a prima 	facie violation
within the jurisdiction of PERB. 	On October 15, 	1996, 	you filed
an amended charge. 	The amended 	charge alleges 	the District:
(a) 	failed to offer reasons 	for 	its 	inappropriate actions,
(b) 	"did not 	adhere 	to 	the grievance process 	ending 	in binding
arbitration," 	(c) 	conducted a cursory investigation, 	(d) 	offered
inconsistent 	and contrary justifications 	for its 	actions, 	and
(e) 	transferred you 	from teaching the 	5th grade 	to 	the 	first
grade 	in a disparate manner.
The 	amended 	charge 	fails 	to 	state 	a prima 	facie violation within
the 	jurisdiction of 	PERB 	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.)
As 	stated 	in my October 7, 	1996 	letter, 	the only alleged adverse
action within 	the 	statute 	of 	limitations period was 	the
District's 	failure 	to 	reinstate 	you 	to your position 	on March 20,
1996. 	The 	charge 	fails 	to 	factually demonstrate 	the 	requisite
nexus 	between your protected activity and 	the District's 	failure
I 	.

LA-CE-3708
Dismissal 	Letter
December 11, 	1996
Page 2
to reinstate you to your position. 	As previously explained in
the warning letter, 	the settlement agreement to your grievance
did not require the District to reinstate you. 	The substantive
part of the agreement simply provides:
The District agrees 	to rescind the Final
Evaluation Report dated April 24, 	1995, with
an overall 	rating of Below Standard
Performance.
UTLA and the grievant agree to withdraw the
above-captioned grievance.
The charge did not provide facts 	indicating the District 	failed
to adhere to the grievance process ending in binding arbitration.
Instead the 	charge indicates your grievance did not go to binding
arbitration because 	the parties 	settled the grievance on
March 20, 1996.
The charge does not 	factually support your allegation that 	the
District 	failed to offer reasons 	for its actions. 	The settlement
agreement 	indicates 	the District offered the settlement 	to avoid
litigation. 	The charge similarly fails to factually support the
charge's conclusions that the District conducted a cursory
investigation, 	and offered inconsistent and contrary
justifications for its actions.
The amended charge also alleges 	the District transferred you in a
disparate manner. 	As a separate adverse action this allegation
is time-barred.1 Nor does this allegation factually support the
District's 	failure to reinstate you was unlawfully motivated.
The charge does not 	include facts demonstrating how or in what
manner your transfer was disparate. 	Thus for the above-stated
reasons and the reasons contained in the warning letter, 	the
above-referenced charge is dismissed.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of the charge by filing
1The appropriate six month period is between February 9,
1996 and August 9, 	1996. 	The charge indicates the District
elected not to rehire you on June 13,. .
1995. 	Therefore the
alleged transfer must have occurred prior to that date and is
outside of the appropriate statute of limitations.
I {

LA-CE-3708
Dismissal 	Letter
December 11, 	1996
Page 3
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. 	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 Regs.,
tit. 	8, 	sec. 	32135.) 	Code of Civil Procedure section 1013 shall
apply. 	The Board's address is:
Attention: Appeals Assistant
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 	(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.
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.)
(

LA-CE-3708
Dismissal 	Letter
December 11, 	1996
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
Tammy L. Samsel
Regional Director
Attachment
cc: 	Rochelle J. 	Montgomery

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
October 7, 	1996
Jean Anne Summer
Re: 	Jean Anne Summer v. 	Los Angeles Unified School District
Unfair Practice Charge No. 	LA-CE-3708
WARNING LETTER
Dear Ms. Summer:
In the above-referenced unfair practice charge, 	filed August 9,
1996, 	you allege the Los Angeles Unified School District
(District) 	violated the Educational Employment Relations Act
(EERA or Act) 	section 3543.5(a) 	and 	(b) . 	My investigation
revealed the 	following information.
You allege the District violated the EERA by the 	following
actions: 	(1) 	on March 20, 	1995, 	the District refused to allow you
a union representative during a disciplinary meeting, 	(2) 	on
March 23, 	1995, 	the District suspended you, 	(3) 	on April 26,
1995, 	the District issued a Below Standards evaluation, 	(4) 	on
June 13, 	1995, 	the District notified you of your non-reelection,
and 	(5). on March 20, 	1996, 	the District failed to reinstate you
to your job.
The above-stated facts 	fail to state a prima facie violation of
the EERA for the reasons that follow. 	EERA § 3541.5(a) 	provides
the Board shall not:
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.
In the instant charge, 	the appropriate six month period is
between February 9, 	1996 and August 9, 	1996. 	Thus the District's
actions on March 20, 	1995, March 23, 	1995, April 26, 	1995, and
June 13, 	1995, 	do not fall within the jurisdiction of PERB. 	The
only event arguably falling within the 	six months 	immediately
preceding this 	charge is the District's 	failure to make job
reinstatement part 	of 	the settlement of your grievance on March
20, 1996.
(

LA-CE-3708
Warning Letter
October 7, 	1996
Page 2
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 (19 79) 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 EERA section 3543.5(a).
Your charge alleges 	the District agreed to rescind the negative
evaluation, 	"but did not 	issue another which reflects Meet
Standards Performance nor was J. 	Summer reinstated in her
teaching job." 	It does not appear from the settlement agreement
dated March 20, 	1996, 	that the District agreed to issue an
improved evaluation or reinstate you to your position. 	Nor does
the 	charge 	factually support 	the District's action was motivated
by your participation in protected activities.
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
I

LA-CE-3708
Warning Letter
October 7, 	1996
Page 3
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 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, 	1996. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-7508.
Sincerely,
Tammy L. 	Samsel
Regional Attorney