Little Lake School District (Garcia) (PERB 1228E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VICTORIA 	GARCIA,
Charging 	Party,
v.
LITTLE 	LAKE 	SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-3 813
PERB Decision No. 	1228
November 13, 	1997
Appearances; 	Victoria Garcia, 	on her own behalf; 	Eric Bathen,
Attorney, 	for Little Lake School District.
Before Johnson, 	Dyer, 	and Jackson, Members.
DECISION
DYER, 	Member: 	This 	case 	comes before 	the 	Public 	Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of Victoria Garcia's 	(Garcia) 	unfair practice charge.
The 	charge alleges 	that 	the 	Little Lake 	School 	District
(District) 	violated section 3543.5(a) 	of 	the Educational
Employment Relations Act 	(EERA)1 when it 	harassed and terminated
Garcia.
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.

The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters, 	Garcia's appeal and the District's 	response 	thereto.
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-3813 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Jackson 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
July 9, 	1997
Victoria Garcia
Re: 	Victoria Garcia v. 	Little Lake School District
Unfair Practice Charge No. 	LA-CE-3813
DISMISSAL/REFUSAL TO 	ISSUE A COMPLAINT
Dear Ms. Garcia:
In the above-referenced charge, 	filed June 27, 	1997, you allege
the Little Lake School District 	(District) 	violated the
Educational Employment Relations Act 	(EERA or Act) 	§ 3543.5. 	On
June 27, 	1997, 	I spoke with you regarding this charge. 	I
indicated to you, 	in my attached letter dated June 30, 	1997, 	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 7, 	1997, 	the charge would
be dismissed.
On July 7, 	1997, 	we spoke about several issues raised in the
Warning Letter. 	On July 7, 	1997, 	you provided additional
information by facsimile.
During our July 7, 	1997, 	conversation you alleged this charge was
timely filed because you had sent a letter to PERB's Sacramento
office on December 12, 	1996. 	You also indicated that Deputy
General Counsel, 	Robert Thompson, 	called you and explained how to
file an unfair practice charge. 	On December 13, 	1996, 	Thompson
sent you a letter which acknowledges the receipt of your letter
and states, 	in pertinent part:
If you feel 	that your claim falls within our
jurisdiction, 	the proper way to involve PERB
in this matter is to file an unfair practice
charge with the regional attorney in the Los
Angeles Regional Office.
Thompson's 	correspondence 	included the above-stated information:
the telephone number and address of the Los Angeles office,
copies of unfair practice charge forms, 	that PERB had a six month
statute of limitations period, 	and an instructive pamphlet
explaining how to file an unfair practice charge. 	You indicated
that you received the forms in January 1997.
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LA-CE-3813
Dismissal Ltr.
July 9, 	1997
Page 2
On February 18, 	1997, 	Thompson wrote you a second letter
indicating the Sacramento office 	received one page of an unfair
practice charge 	form by facsimile. 	Thompson's letter explained
you could not file by facsimile, 	and stated, 	in pertinent part:
I must 	inform you that your charge has not
been filed. -
Thompson's 	letter quoted the California Code of Regulations
section 32605, which states:
All documents 	. 	. 	. which are required to be
"filed" by a party shall 	consist of an
original document and two copies of the
document.
Thompson's 	letter also explained PERB had a six month statute of
limitations period.
The documents you provided by facsimile also included a
July 6, 	1997, 	letter addressed to me. 	That letter states, 	in
part: As you may find my letter Dec. 	12 	to PERB was
mailed, 	though I did not get a reply until
the end of January. 	The second letter of
Jan. 	31, 	demonstrate how the District -after
weekly threats from November, Dec. and
January that if I did not resign the District
was placing me on their black lists. 	Called
other districts, 	so they would refuse to even
interview for any long term assignments.
Who: Mrs. de La "0" and the Dr. Madrid
What: 	to take away my yearly contract and use
an 	"indecent" behavior. 	Demonstrate they can
commit a crime and can get away with it,
because the District protects them.
When: 	from Sept 15 to February 1997,
January 31, 	1997, 	terminated my contract.
March: 	refuse to extend me a letter lost say
I worked for them Sept. 	to Jan. 	1997.
Where: 	in Los Angeles
How: 	Indecent or barbaric behavior Little
Lake 	in conjunction with Little Lake Union
can make a mockery of our workers. 	We target
"one" 	specially a foreign born 	(although)
( 	(

that the population they're to serve as used
them as 	"whipping boy" 	I don't believe you
even treat an animal or beast that way. 	How
they did: 	they replace me with someone
younger did not have the credential 	or the
language, 	but it was a mini battle between
the Principal and the Superintendent's office
to decide who would do the harm.
LA-CE-3813
Dismissal Ltr.
July 9, 	1997
Page 3
This will also serve as 	"nexus", 	although you
told me you will 	denied my case.[sic]
The above-stated information does not 	correct 	the deficiencies
noted in the June 30, 	1997, 	warning letter for the reasons stated
both in that letter and herein.
EERA § 3541.5(a)(1) 	provides the Public Employment Relations
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." 	It is your burden, 	as
the charging party to demonstrate the charge has been timely
filed. 	(See Tehachapi Unified School District 	(1993) 	PERB
Decision No. 	1024.)
Although you provided information indicating you sent a letter to
PERB in December 1996, 	you did not file a charge regarding the
above-stated allegations until June 26, 	1997. 	Your argument that
your letter to PERB in December 1996, 	should stay the statute of
limitations during the six months 	it took you to file this unfair
practice charge is unpersuasive. 	On December 13, 	1996, 	and
February 18, 	1997, 	Deputy General Counsel Thompson explained how
to file a unfair practice charge with this agency. 	You also
indicated you received the appropriate 	forms 	from Thompson in
January 1997. 	Thompson warned you in both the December 13, 	1996,
and the February 18, 	1997, 	letter that PERB has a six month
statute of limitations period. 	Despite these letters, 	you did
not file this charge until June 27, 	1997. 	Those allegations of
unfair practices within your knowledge on or before December 26,
1996, 	are therefore dismissed.1
The charge also alleges the District forced you to resign
effective January 31, 	1997. 	Although that allegation is timely
filed, 	the charge does not provide facts demonstrating a prima
facie violation for the reasons that follow. 	As stated in the
*Even if 	considered timely filed the charge failed to
provide facts demonstrating a prima facie violation within the
jurisdiction of PERB.
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Warning Letter, 	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.)
LA-CE-3813
Dismissal Ltr.
July 9, 	1997
Page 4
During our June 27, 	1997, 	conversation you indicated you engaged
in protected activities in October and December 1996, 	by going to
the union and filing complaints. 	You have not provided facts
demonstrating the employer had knowledge of your exercise of your
rights. 	Nor have you provided facts demonstrating the requisite
nexus. 	Thus, 	the charge fails to provide facts demonstrating a
prima facie violation within the jurisdiction of PERB and must be
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. 	(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
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.
LA-CE-3813
Dismissal Ltr.
July 9, 	1997
Page 5
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

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
June 30, 1997
Victoria Garcia
Re: 	Victoria Garcia v. 	Little Lake School District
Unfair Practice Charge No. 	LA-CE-3813
WARNING LETTER
Dear Ms. Garcia:
In the above-referenced charge, 	filed June 27, 	1997, 	you allege
the Little Lake School District violated the Educational
Employment Relations Act 	(EERA or Act) 	§ 3543.5. 	On June 27,
1997, 	I spoke with you regarding this charge. 	My investigation
revealed the 	following information.
Your charge states in its entirety:
In November Mrs. De La "O" 	called Sacramento
have my waiver for my credential, 	denied.
That is, 	this women used her administrative
power to harm teacher. 	With the indecent
consent of the building union rep. 	She 	(Mrs.
De La 	"0") 	and Mrs. 	Brown Daily they practice
barbarics acts against me. 	Example: 	had
"zero" material 	in my class whereas her
favorite had over-abundance of material,
reading books.
Second, 	the computer assigned to my class was given to
the office secretary. 	Mrs. De La "0" talked to me --
like if I was an illegal person. 	Although, 	everyone in
the school knew of her obnoxious behavior. 	The greed
of some educators was to pretend it was not happening
or join her - - as a group of hungry lionesas, 	attacking
a predetor. 	This was worse than "by pass" 	case in N.Y.
where 200 people pretend to ignore the scream of that
lady that got stabbed 50 times.
Thirdly, 	why did I take so long because this
woman Mrs. De La "0" 	threaten me daily that
she was going to have my license taken away
and she was going to accuse of improper acts.
It was not but her behavior displayed on that
campus. 	Mrs De La "0" 	is not latina or a
minority -- 	but misuse her name to climb-up
_____,l.r 	r

through the educ. 	system. 	Had to travel 3
times to Sacramento.
LA-CE-3813
Warning Letter
June 30, 1997
Page 2
Fourthly, 	there will be extensive letters to
the union because their own people took the
easy way out. 	Terminate in January 1997.
Mrs De La 	"0" with consent of the head of
personnel hired someone less qualified.
Fifth, Mrs De La "0" was fired, 	though I was
psychologically, 	mentally and professional
harm. 	Want my job back in 97/98. 	Only one
Board Member, Mrs. Trujillo assist me on
moments of crisis.[sic]
During our conversation on June 27, 	1997, 	I asked you specific
questions regarding when the events 	referred to in the charge
took place. 	I also asked you what protected activity of yours
you believed motivated the District 	to take adverse action
against 	you.1 You responded that you had gone to your union in
October 1996, 	and had filed complaints in December 1996. 	You
indicated Principal De La 0, 	began harassing you in October 1996.
EERA § 3541.5(a)(1) 	provides the Public Employment Relations
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." 	It is your burden, 	as
the charging party to demonstrate the charge has been timely
filed. 	(See Tehachapi Unified School District 	(1993) 	PERB
Decision No. 	1024.)
You filed this charge on June 26, 199 7. The allegations that
Mrs. De La "0" 	took adverse action against you in October 1996,
occurred more than six months prior to the filing of this charge.
Thus, 	these allegations are untimely filed and outside the
jurisdiction of PERB.
You also allege 	the District 	terminated your employment 	in
January 1997. 	Although that allegation appears timely filed, 	the
charge does not provide facts demonstrating a prima facie
violation for the reasons that 'follow.
1During that 	conversation you asked me what a 	"protected
activity" was, 	and what a "prima facie case" was. 	You agreed
with my explanation, 	and indicated that Regional Attorney Marc
Hurwitz had also explained these concepts to you in regard to
previously filed unfair practice charges.
r (
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LA-CE-3813
Warning 	Letter
June 30, 	1997
Page 3
A charging party should 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.) 	The charge fails
to provide 	facts demonstrating the elements of a prima facie
discrimination, 	as listed below.
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
the employer's unlawful motive. 	(Novato Unified School District.
supra-·; 	Nort----------h 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).
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
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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 July 7. 	1997, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3008.
LA-CE-3813
Warning 	Letter
June 30, 	1997
Page 4
Sincerely,
Tammy L. 	Samsel
Regional Director