Los Angeles Unified School District (Seliga) (PERB 1300E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PAULA J. 	SELIGA,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-3946
PERB Decision No. 	1300
November 24, 	1998
Appearance: 	Paula J. 	Seliga, 	on her own behalf.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before 	the Public Employment
Relations 	Board 	(Board) 	on appeal 	of 	a Board agent's 	dismissal
(attached) 	of Paula J. 	Seliga's 	(Seliga) 	unfair practice charge.
Seliga's 	charge 	alleged 	that 	the 	Los Angeles 	Unified School
District violated section 	3543.5(a) 	of 	the 	Educational 	Employment
Relations Act 	(EERA)1 when it 	transferred her from Bertrand
School 	to Hazeltine 	School 	in 	retaliation 	for her protected
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.
)
)
)
)
)
)
)
)
)
)
______________ )

activities.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the unfair practice 	charge 	and amendments 	thereto, 	the
warning and dismissal 	letters, 	and Seliga's 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-3946 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman Caffrey and Member Johnson 	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
PER
September 16, 	1998
Paula J. 	Seliga
Re: 	Paula J. 	Seliga 	v. 	Los Angeles Unified School District
Unfair Practice 	Charge No. 	LA-CE-3946
DISMISSAL 	LETTER, 	Second Amended 	Charge
Dear Ms. 	Seliga:
In the above-referenced charge, 	Paula Seliga 	(Seliga) 	alleges 	the
Los Angeles 	Unified School 	District 	(District) 	violated 	the
Educational 	Employment Relations Act 	(EERA) 	§ 	3543.5(a) 	by
involuntarily 	transferring her 	to another 	school 	because 	she
engaged in protected activities. 	On or about June 24, 	1998, 	I
asked Seliga 	several 	questions 	regarding 	her charges. 	On July
23, 	1998, 	Seliga filed a first amended charge.1
On September 2, 	1998, 	I 	issued a Warning Letter indicating the
original 	and 	first 	amended 	charges 	failed 	to 	state 	a prima 	facie
discrimination violation because 	the 	charges 	lacked nexus. 	More
specifically, 	the warning letter noted: 	(1) 	the adverse action
did not 	occur close 	in time 	to any protected activity; 	(2) 	the
facts 	did not 	demonstrate 	the 	District 	departed 	from established
procedures; 	and 	(3) 	the facts did not demonstrate the District
shifted 	its 	justification 	for 	transferring 	Seliga. 	On
September 9, 	1998, 	Seliga filed a second amended charge. 	The
second amended 	charge 	did not 	correct 	the 	above-stated
deficiencies 	for 	the 	reasons 	stated below.
The 	Warning 	Letter 	indicated 	the 	District's 	alleged adverse
action occurred 	6 	months 	after Seliga 	reported the District 	to
the Department 	of 	Education. 	The 	second amended charge 	indicates
the District's adverse action occurred 5 months, 	not 	6 months
after 	she 	reported 	the District. 	Taking 	the 	Charging 	Party's
facts 	as 	true, 	the 	second amended charge 	still 	fails 	to establish
the 	adverse 	action 	followed 	close 	in 	time 	to Seliga's 	report 	to
the Department 	of 	Education.
The Warning 	Letter also 	indicated 	it 	did not appear 	the
District's 	adverse 	action occurred 	close 	in time 	to Seliga's
other alleged protected activities, 	filing 	grievances 	and her
actions 	as 	a member of 	the United Teachers 	of 	Los Angeles 	(UTLA)
1The first 	amended charge did not 	add new allegations, 	but
merely 	restated 	the 	information provided 	in 	the 	original 	charge.

LA-CE-3946
Dismissal 	Letter
Page 2
House 	of 	Representatives. 	The 	second amended charge 	did not
provide 	any 	information 	indicating 	that 	these 	activities 	were
close 	in 	time 	to 	the District's 	adverse 	action.
The Warning 	Letter 	further 	indicated 	that 	even 	if 	close 	in 	time,
the 	original 	and 	first 	amended 	charges 	did not 	demonstrate 	any-
other 	factors 	indicative 	of 	a nexus between Seliga's 	protected
activities 	and 	the alleged adverse action. 	The 	original 	and
first 	amended 	charges 	alleged 	the 	District 	departed 	from
established procedures 	by 	failing 	to provide 	her with 	a 	copy 	of
an April 	28, 	1998 	letter within 30 	days 	of 	its 	receipt by the
District.2 The Warning 	Letter 	indicated 	the District 	attempted
to meet with Seliga 	twice within the 	30-day time period, 	on May
18, 	and May 26, 	but 	that 	Seliga 	refused to meet with the District
on those dates. 	In the 	second amended charge 	Seliga acknowledges
the District 	attempted 	to meet 	with her on these 	dates, 	but
alleges 	she 	was 	not 	available 	for these meetings 	due 	to 	calendar
conflicts, 	"evasive agendas," 	and Dr. 	Leidner's 	failure to set a
particular time 	for 	the 	first meeting. 	These allegations 	do not
correct 	the 	deficiency noted 	in 	the Warning Letter. 	The 	facts
demonstrate 	the District attempted, 	at least 	twice, 	to meet
Seliga within the 	30 	days 	following 	its 	receipt 	of 	the April 	28,
1998 	letter.3 The District's 	failure 	to provide 	Seliga with the
April 28, 	199 8 	letter, 	does not demonstrate an unlawful
motivation given 	that 	Seliga's 	own 	failure 	to 	attend 	either 	of
the 	scheduled meetings was a contributing factor. 	Moreover, 	the
exact 	language 	of 	the 	CBA section 	setting 	the 	30-day 	time 	limit
for providing 	the 	letter indicates, 	in pertinent part:
Except 	in compelling 	circumstances, 	the
employee 	shall 	be 	furnished a 	copy within 	3 0
days 	of 	the District's 	receipt 	of 	the
document. 	[Article X, 	Section 9.0(a)
emphasis 	added.]
The parties' 	CBA comprehends 	that 	the 30-day time 	limit may be
extended in compelling circumstances. 	Thus, 	it appears 	the
District 	did not 	depart 	from established procedures.
2The 	second amended 	charge 	indicates 	that 	Seliga 	received
the 	letter after the 	30 	days 	had elapsed, 	but 	did not provide a
specific 	date.
3My 	investigation revealed 	only 2 	specific 	dates 	scheduled
by the District, 	however there may have been more. 	A June 	2,
1998, 	letter from Dr. 	Deborah Leidner indicated that 	the District
attempted to meet 	on 3 	occasions with Seliga.

LA-CE-3946
Dismissal 	Letter
Page 3
In support of nexus, 	the original 	charge also indicated there had
been a 	"shift 	in justification." 	The Warning Letter indicated
that during my conversation with Seliga on or about, 	June 24,
1998, 	Seliga indicated the District's justification for her
transfer had always been 	"disharmonious" behavior. 	The second
amended charge again alleges a 	"shift 	in justification."
However, 	the charge does not provide any facts supporting this
allegation.
The 	second amended charge also alleges 	the District 	failed to
conduct an investigation into the allegations about Seliga in the
April 28, 	1998 letter. 	Article X, 	Section 9.0(a) 	of the 1995-
1998 Collective Bargaining Agreement 	(CBA) 	between the District
and UTLA indicates that 	if the District 	receives a document
critical of an employee from a member of the public, 	the District
is 	required to first 	investigate the matter before 	retaining the
document or placing it an employees personnel 	file. 	Article X,
Section 9.0(b) 	of the CBA indicates that if the document is not
from a member of the public, 	but from District personnel, 	the
investigation required by Section 9.0(a) 	may not be necessary or
appropriate. 	The April 28, 	1998, 	document in question in this
charge was from District personnel. 	Therefore, 	the District did
not depart 	from procedures 	if 	it did not conduct an
investigation.
The 	second amended charge 	fails 	to state a prima facie violation
and 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
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

LA-CE-3946
Dismissal 	Letter
Page 	4
copies 	of a statement 	in opposition within twenty 	(2 0) 	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.)
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: 	Shirley Woo

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
September 2, 	1998
Paula J. 	Seliga
Re: 	Paula J. Seliga v. 	Los Angeles Unified School District
Unfair Practice Charge No. 	LA-CE-3946
WARNING LETTER
Dear Ms. Seliga:
In the above-referenced charge, 	Paula Seliga 	(Seliga) 	alleges the
Los Angeles Unified School District 	(District) 	violated the
Educational Employment Relations Act 	(EERA) 	§ 3543.5(a) 	by
involuntarily transferring her to another school because she
engaged in protected activities. 	On or about June 24, 	1998, 	I
asked Seliga several 	questions regarding her charges. 	On July
23, 199 8, Seliga filed a first amended charge.1 My investigation
revealed the 	following information.
Paula Seliga was a bilingual 	teacher for the District at the
Bertrand School. 	Seliga alleges she reported the District's
misuse of Title I funds 	to the California Department of Education
in January of 1998. 	Seliga alleges she has participated in
activities for the United Teachers of Los Angeles 	(UTLA) 	during
the 1997-1998 school year by being a member of its House of
Representatives. 	Seliga further alleges 	she filed several
grievances during the 1997-1998 school year.
On April 28, 	1998, 	several District employees wrote to Cluster
Administrator, 	Deborah Leidner and requested that Seliga not be
allowed to return to the Bertrand School.
Article X, 	Section 9.0(b) 	of the 1995-1998 	collective bargaining
agreement between the District and UTLA indicates that 	if the
District 	receives a letter from a District 	employee critical 	of
the performance of another District employee, 	the District must
supply a copy of the letter to the employee in question within 30
days. 	Seliga alleges 	the District did not provide her with a
copy of the April 28, 	1998 letter to Leidner.
On or about June 2, 	1998, 	Leidner, 	notified Seliga that she had
been transferred to the Hazeltine School. 	Leidner's June 2,
1998, 	letter indicated Seliga was being transferred due to her,
1The first amended charge did not add new allegations, 	but
merely restated the information provided in the original 	charge.

LA-CE-3946
Warning 	Letter
Page 	2
"inharmonious 	relationships 	with both 	the 	staff 	and principal 	at
Bertrand 	Elementary 	School 	. . . "
The 	above-stated 	information 	fails 	to 	state 	a prima 	facie
violation 	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 	(19 82) 	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.)
Although 	Seliga participated 	in protected activities, 	the
original 	and 	first 	amended 	charges 	fail 	to 	demonstrate 	the
requisite nexus. 	The 	charges 	do not 	indicate 	the 	timing of
Seliga's 	protected activities 	were 	close 	in 	time 	to 	the 	alleged
adverse 	action. 	The District 	transferred 	Seliga 	six months 	after
she 	reported the 	school 	to 	the Department 	of 	Education. 	The
charges 	do not 	provide more 	specific 	information 	regarding 	the
timing 	of 	Seliga's 	grievances 	or any actions 	she may have 	taken
as 	a member of UTLA's 	House of Representatives.
Even 	if 	close 	in time, 	the 	original 	and 	first 	amended charges 	do
not 	demonstrate 	any other 	factors 	indicative 	of 	a nexus 	between
Seliga's 	protected activities 	and 	the alleged adverse 	action. 	In

LA-CE-3946
Warning 	Letter
Page 3
support of nexus, 	Seliga alleges the District departed from
established procedures. 	More specifically, 	Seliga alleges the
District failed to provide her with a copy of the April 28, 	1998,
letter within 30 days of its receipt. 	However, 	my investigation
indicates 	the District attempted to meet with Seliga and provide
the letter on May 18, 	and May 26. 	Seliga refused to attend those
meetings.
In support of nexus, 	the original charge also indicated there had
been a 	"shift 	in justification." 	However, 	during my conversation
with Seliga on or about, 	June 24, 	1998, 	Seliga indicated the
District's 	justification for her transfer had always been
"disharmonious" behavior. 	Thus, 	the charge fails to demonstrate
the requisite nexus and must be dismissed.
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
second amended charge 	should be prepared on a standard PERB
unfair practice 	charge form, 	clearly labeled Second 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 September 9. 	1998, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
Tammy L. 	Samsel
Regional Director