Lake Tahoe Unified School District (PERB 0994E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SOUTH TAHOE EDUCATORS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
LAKE TAHOE UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1501
PERB Decision No. 	994
April 30, 	1993
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Appearances: 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for South Tahoe Educators Association, 	CTA/NEA; 	Girard
& Vinson by Allen R. 	Vinson, 	Attorney, 	for Lake Tahoe Unified
School District.
Before Hesse, 	Caffrey, 	and Carlyle, Members.
DECISION
HESSE, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	of 	a Board agent's
dismissal 	of 	an unfair practice 	charge 	filed by 	the 	South Tahoe
Educators Association, 	CTA/NEA 	(Association). 	The Board agent
found 	that 	the 	charge which alleged that 	the Lake Tahoe Unified
School District 	(District) 	violated sections 3543.5(a) 	and 	(b) 	of
the Educational 	Employment Relations Act 	(EERA or Act),1 failed
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	EERA 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

to 	state a prima 	facie 	case.
FACTS
On August 	12, 	1992, 	the Association filed an unfair practice
charge against 	the District 	alleging 	that 	it 	took adverse 	action
against an employee, 	Les Wright 	(Wright), 	in retaliation for his
protected activities. 	According to 	the 	charge, 	Wright had filed
a 	lawsuit 	against 	the District 	claiming disparate 	treatment 	of
female 	students 	in athletic programs 	in violation of 	federal 	law
and, 	on specified occasions, 	had openly criticized management 	and
supervisory 	employees 	on behalf 	of 	himself 	and 	other bargaining
unit 	employees.
In addition, 	protected activities 	referenced 	in the 	charge
include 	a prior unfair practice 	charge 	that 	also alleges
retaliation against Wright.2
The 	initial 	unfair practice 	charge 	includes 	three
allegations 	of 	retaliatory adverse action. 	The 	first 	concerns 	a
derogatory 	disciplinary memoranda 	issued 	to Wright 	by Mike
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2Attached to 	the unfair practice 	charge 	is 	the 	charge and
complaint 	issued 	in 	the previous 	case, 	Lake Tahoe Unified School
District. 	Case No. 	S-CE-1429. 	It details many of the same
protected activities 	as 	are 	listed 	in 	the 	instant 	charge 	and
refers 	to a dozen adverse 	actions 	allegedly taken 	in 	retaliation
for Wright's 	protected activity. 	The parties 	entered 	into a
settlement agreement 	in that 	case. 	Terms 	of 	the agreement
relevant 	to 	the 	instant 	case 	are 	quoted and discussed below.
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Greenfield 	(Greenfield), 	the Vice Principal at South Tahoe Middle
School. 	The memo, 	dated February 14, 	1992, 	is based on Wright's
alleged 	failure 	to directly 	supervise 	students 	in his 	physical
education 	class. 	A second derogatory 	disciplinary memo 	was
issued by Greenfield on April 	14, 	1992. 	It 	concerns Wright's
alleged use 	of pejorative 	statements 	when 	referring 	to his
students. 	The charge also alleges that on April 27, 	1992,
Greenfield 	issued a 	teacher 	evaluation 	report 	to Wright 	that
included a 	"performance needs 	improvement" 	rating under 	the
category of 	"personal 	qualities." 	The 	comments written 	in 	the
report 	refer to the matter described 	in the April 	14 	disciplinary
memo.
The Association 	charges 	that 	these 	adverse 	actions 	were
taken against Wright because 	of his protected activities. 	It
asserts 	that 	the District's 	unlawful motive 	is 	evidenced by the
fact 	that 	the 	allegations 	concerning Wright's misconduct 	are
false, 	exaggerated, 	misleading and based on a cursory
investigation of 	the alleged misconduct. 	The Association also
argues 	that 	the District 	has 	not 	imposed discipline 	on 	other
members 	of 	the bargaining unit 	based on 	conduct 	similar 	to 	that
described 	in 	the memos 	issued 	to Wright.
On September 15, 	1992, 	the Board agent advised the
Association that, 	after reviewing 	the Board's 	ruling 	in Novato
Unified School District 	(1982) 	PERB Decision No. 	210, 	and
Moreland Elementary School District 	(1982) 	PERB Decision No. 	227,
she 	concluded 	that 	the 	charge 	failed 	to demonstrate 	sufficient
W3

nexus 	to state a prima facie violation of EERA section 3543.5(a).
On September 26, 	1992, 	the Association filed an amended
charge 	in which 	it 	embellished 	the 	factual 	allegations 	concerning
the 	adverse 	actions 	described 	in the 	original 	charge 	and added
two additional 	allegations. 	With regard to 	the allegation
concerning 	the 	disciplinary memo 	referring 	to Wright's 	failure 	to
supervise 	students, 	the amended charge 	stated that 	Rich Alexander
(Alexander) 	personally participated 	in the District's
investigation of 	the 	incident 	and attempted 	to 	cover up his
involvement. 	According to the charge, 	Alexander, 	who is 	the
principal 	at 	South Tahoe Middle School, 	has 	a great deal 	of
personal 	animosity 	toward Wright 	because Alexander has 	frequently
been the 	focus 	of Wright's 	criticism in the past.3
The 	amended 	charge 	also asserted 	that Wright 	did not 	fail 	to
supervise his 	class 	because 	the majority of his 	students were
involved 	in a volleyball 	game 	that 	was 	being watched by another
physical 	education teacher. 	The Association claimed that 	the
District 	treated Wright 	in a 	disparate manner and departed 	from
established procedures 	and 	standards 	because 	no 	other bargaining
unit member had 	ever been disciplined 	for 	"momentarily being
3In the amended charge, 	Alexander is named in three
instances 	of alleged protected activity. 	In Case No. 	S-CE-1429,
the prior unfair practice 	charge upon which a 	settlement
agreement was 	reached, 	Alexander 	is 	alleged to have 	committed
approximately 13 	specific acts 	of 	retaliation against Wright. 	In
addition, 	paragraph six of 	the settlement agreement 	states: 	"So
long as Mr. 	Rich Alexander is 	the principal 	of 	the 	school where
Mr. 	Wright 	is assigned, 	all evaluations of Mr. 	Wright shall be
conducted by a 	site vice 	principal 	and approved by 	the
superintendent and not Mr. 	Alexander."
4

outside 	the presence 	of 	his/her 	students 	even though 	it 	happens
all 	the 	time with the knowledge 	of District 	administrators." 	The
amended charge 	stated that, 	on the day in question, 	the 20
students 	in Wright's 	class were 	involved 	in a 	"free activity day"
during which time 	it was 	not unusual 	for students 	to be 	in
different 	locations during class. 	The 	charge states:
Thus, 	it 	is a normal occurrence for Les
Wright 	to be outside 	the presence 	of 	at 	least
some 	of 	his 	students 	on a 	regular basis 	and
District 	administrators 	have 	not 	disciplined
him for 	that 	fact 	prior 	to 	this 	incident 	even
though 	they have 	had knowledge 	of 	that
practice.
The 	amended 	charge 	expanded 	on 	the 	factual 	assertions
relevant 	to Wright's 	alleged use 	of pejorative 	language. 	Again,
the 	charge 	states 	that Alexander personally participated 	in 	the
District's 	investigation and attempted 	to 	cover up 	his
involvement. 	The Association disputes 	the basis 	for the
disciplinary memo, 	claiming 	that Wright 	did not 	do what 	the memo
accuses 	him of 	doing 	and 	suggests 	that 	the 	students 	who
complained were 	upset 	with Wright 	because 	he 	had 	cut 	them 	from
the volleyball 	team. 	The Association states 	that Greenfield's
encouragement 	that 	the 	students 	put 	their 	complaints 	in writing
was 	a 	departure 	from the District's 	established practice 	in
investigating 	student 	complaints. 	The Association also argues
that 	the memo 	reflects 	a 	departure 	from established 	disciplinary
standards because 	it 	refers 	to 	comments made 	in Wright's previous
evaluation 	for which he was 	rated 	"Meets 	or Exceeds 	Districts
Standards."
5
5

The 	third 	allegation 	repeated 	from 	the 	original 	charge
concerns 	the April 	27 	evaluation 	issued by Greenfield. 	In 	the
amended charge, 	the Association asserts 	that 	the 	evaluation
contravenes 	provisions 	of 	the 	settlement 	agreement 	reached 	in
Case 	No. 	S-CE-1429 	by departing 	from the 	agreed-upon procedures
for 	the 	evaluation of Wright 	during 	the 	1991-92 	and 	1992-93
school 	years.4 The 	amended 	charge 	also 	states 	that 	the
4Provisions 	of 	the 	settlement 	agreement 	relied 	on by 	the
Association in this 	case are as 	follows:
1) 	The 	Lake Tahoe Unified School 	District
(District) 	will 	issue to Les Wright, 	a
teacher employed by 	the District, 	a new
evaluation 	covering 	the 	first 	semester 	of 	the
1991-92 	school 	year. 	This 	evaluation shall
be 	issued prior 	to 	the 	completion of 	the
first 	semester and will 	be 	identical 	to 	the
evaluation of June 7, 	1991, 	with the
following 	exceptions:
A) 	In Category III, 	Management of
Responsibilities, 	the 	rating shall 	be 	changed
from 2 	to 	1 and all 	comments 	shall be
eliminated, 	and
B) 	In Category V, 	Classroom and
Environmental 	Control, 	the 	following 	comment
shall 	be 	added 	to 	the 	comment 	already 	listed
there:
Mr. 	Wright will 	implement 	alternative
disciplinary strategies 	so as 	to 	reduce 	his
reliance 	upon detention.
5) 	The next 	formal 	evaluation of Mr. 	Wright 	following
the 	evaluation 	to be 	completed 	for 	the 	first 	semester
of 	the 	1991-92 	school 	year shall 	be 	the 	evaluation at
the 	completion of 	the 	1992-93 	school 	year. 	During 	the
time between the 	signing 	of 	this 	agreement 	and 	the
1992-93 	evaluation, 	the District will 	be 	entitled to
complete 	for Mr. 	Wright 	the 	same 	types 	of 	classroom
supervision and provide 	the 	same 	type 	of 	instructions
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settlement 	agreement was based on the provision 	in the parties'
collective bargaining agreement 	that 	limits 	the 	evaluation of 	a
tenured teacher to 	once 	every two 	school 	years.
The 	amended 	charge 	added 	two allegations 	that 	did not 	appear
in the original 	charge. 	The 	first 	involves 	the 	claim that 	on
March 9, 	1992, 	Alexander failed to thank Wright 	for assisting 	in
the after-hours 	set up of 	gym equipment. 	According 	to 	the
charge, 	Alexander 	thanked all 	other physical 	education teachers
for their help 	in the 	South Tahoe Middle 	School 	Bulletin. 	The
Association contends 	this 	omission 	is 	another example 	of 	the
District's 	disparate 	treatment 	of Wright.
The 	second allegation added 	to 	the 	amended 	charge 	concerns
Wright's 	dismissal 	as 	the girls' 	volleyball 	coach on September 9,
1992. 	According to the charge, 	Wright 	requested to continue as
coach at 	the end of 	the 	1991-92 	school year, 	but was denied the
post 	despite 	the 	fact 	that 	coaches 	are 	customarily given 	the 	same
assignment 	from year to year 	if 	they request 	it. 	Greenfield's
explanation 	that 	Wright 	was 	denied 	the 	coaching position because
he 	did not 	turn 	in a note 	requesting 	the 	assignment 	is 	false,
according 	to 	the Association, 	because Wright 	requested the
assignment 	in writing at 	the 	end of 	the prior school 	year and
because 	no 	separate 	note 	had been demanded 	in the past.
On October 19, 	1992, 	the Board agent dismissed the charge.
With 	regard 	to 	the memo 	involving Wright's 	alleged 	failure 	to
as 	it 	would 	for any other 	tenured 	teacher employed by
the District.
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supervise his 	students, 	she stated that, 	because Wright was
injured when he was 	away 	from the 	students, 	consistent with
standard procedures, 	Alexander 	investigated the 	cause 	of Wright's
injuries. 	Greenfield 	conducted 	the 	investigation 	regarding
Wright's 	supervision of his 	class.
The 	Board agent 	also 	stated 	that Wright's 	students 	were
engaged 	in 	three 	different 	activities 	and 	that 	only 	those playing
volleyball were supervised. 	In addition, 	she said, 	the teacher
who was 	supervising 	the 	game 	complained 	that Wright 	frequently
left 	his 	class 	unsupervised. 	Noting 	that 	the District 	does 	not
allow teachers 	to 	leave 	their students unsupervised, 	the Board
agent 	said 	that 	the 	charge 	failed to 	state a prima 	facie 	case.
With 	regard 	to Alexander's 	failure 	to 	thank Wright 	for his
help with the 	equipment move, 	the Board agent 	said that 	the 	list
provided 	to Alexander 	"inadvertently did not 	contain Mr. 	Wright's
name." 	In addition, 	she 	said, 	Alexander thanked Wright 	in the
very next 	bulletin when he became 	aware 	of Wright's 	involvement
in 	the move. 	She 	concluded 	that 	this 	discrimination 	claim had no
merit 	because 	the District's 	action was 	an oversight 	that 	was
quickly 	remedied.
In 	the 	Board agent's 	discussion of 	the 	adverse 	action
stemming 	from Wright's alleged use 	of pejorative 	language, 	she
acknowledged 	the Association's 	claim raised 	in 	the 	amended 	charge
that Alexander participated 	in the 	investigation. 	But 	she
reiterated her 	conclusion 	that 	the 	charge 	failed 	to 	demonstrate
the 	requisite nexus.
8

The 	Board agent 	found no merit 	in 	the Association's
assertion 	that 	the District 	had violated 	the 	terms 	of 	the
settlement 	agreement. 	She based this 	conclusion on 	the 	fact 	that
the 	teacher evaluation report 	given 	to Wright was 	required by the
terms 	of 	the 	collective bargaining agreement 	to be 	completed
before a 	teacher may be given a 	"Needs 	to 	Improve" 	rating. 	With
regard 	to 	the 	language 	in 	the 	settlement 	agreement 	granting 	the
District 	the 	right 	to 	conduct 	normal 	supervision and 	instruction
of Wright, 	the Board agent 	concluded that 	it was 	the District's
intent 	to preserve 	its 	right 	to take appropriate action, 	if
necessary.
Finally, 	the Board agent 	found the allegation that Wright's
dismissal 	as volleyball 	coach was 	retaliatory was 	without merit.
She 	said 	that 	the District 	sent 	a letter to all 	teachers 	on
August 	10, 	1992, 	requesting that they inform the principal by
September 1, 	1992, 	in writing, 	if they wished to serve in the
coaching position 	for 	the upcoming year. 	Concluding 	that Wright
failed to 	request 	in writing 	that 	he would 	like 	to 	return as
volleyball 	coach, 	the Board agent 	found that 	the District made
assignments 	based on 	the 	interest 	indicated by written notices 	it
received 	from the 	certificated 	staff.
Finding no additional 	facts 	to demonstrate 	the 	necessary
connection between 	the adverse 	action and 	the protected 	conduct,
the 	Board agent 	dismissed 	the 	charge.
9
9

Association's 	Appeal
On November 	12, 	1992, 	the Association 	filed an appeal 	of 	the
dismissal. 	In addition 	to 	arguing 	that 	the 	factual 	allegations
were 	sufficient 	to 	establish 	a prima 	facie 	case 	of 	retaliation,
the 	Association 	took 	issue 	with 	the 	manner 	in which 	the 	unfair
practice 	charge was 	processed. 	In particular, 	it was 	critical 	of
the 	fact 	that 	the 	Board 	agent 	failed 	to 	telephone 	the 	Association
before 	issuing 	either 	the 	warning 	letter 	or 	the 	letter 	of
dismissal 	and, 	in 	so 	doing, 	failed 	to 	comply with 	PERB Regulation
32620.5 The 	Association 	also 	asserted 	that 	the 	Board 	agent
5PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001, 	et 	seq. 	PERB Regulation
32620 	pertains 	to 	charge processing. 	It 	states:
(a) 	When a 	charge 	is 	filed, 	it 	shall 	be
assigned 	to 	a 	Board 	agent 	for 	processing.
(b) 	The powers 	and duties 	of 	such Board
agent 	shall 	be 	to:
(1) 	Assist 	the 	charging party 	to 	state 	in
proper 	form 	the 	information 	required 	by
section 	32615;
(2) 	Answer procedural 	questions 	of 	each
party 	regarding 	the 	processing 	of 	the 	case;
(3) 	Facilitate 	communication and 	the
exchange 	of 	information between 	the parties;
(4) 	Make 	inquiries 	and review the 	charge 	and
any 	accompanying 	materials 	to 	determine
whether an unfair practice 	has 	been, 	or 	is
being, 	committed, 	and determine whether the
charge 	is 	subject 	to 	deferral 	to arbitration,
or 	to 	dismissal 	for 	lack 	of 	timeliness.
(5) 	Dismiss 	the 	charge 	or any part 	thereof
as 	provided 	in 	section 32630 	if 	it 	is
determined 	that 	the 	charge 	or 	the 	evidence 	is
insufficient 	to 	establish 	a prima 	facie 	case;
10

erroneously 	reached 	the 	conclusion 	that 	the 	charge 	did not 	state
a prima 	facie 	case because 	she 	failed 	to 	assume 	that 	the
allegations 	in the 	charge were 	true, 	as 	is 	required by Board
precedent. 	(See 	San Juan Unified School 	District 	(1977) 	PERB
Decision No. 	12.) 	Instead, 	the Association argues, 	the Board
agent 	weighed 	the 	evidence 	and 	determined 	that 	the 	District's
version of 	the 	facts were 	true.
District's 	Response
The District 	submitted an answer 	to 	the 	appeal 	on
December 3, 	1992. 	It 	supports 	the Board agent's analysis 	of 	the
charge and argues 	that 	PERB Regulation 32620 	does 	not 	require 	the
Board agent 	to make 	telephone 	contact 	with 	the 	charging party.
The District 	also argues 	that 	the 	Board agent 	did not
specifically 	reject 	any 	factual 	allegation made 	by 	the
Association. 	Citing Riverside 	Unified School 	District 	(1986)
PERB Decision No. 	562a, 	the District argues that, 	where
responsive 	pleadings 	expand without 	contradicting 	facts 	alleged
in the 	charge, 	the additional 	facts may form a proper basis 	for
or 	if 	it 	is 	determined that 	a 	complaint may
not 	be 	issued 	in 	light 	of 	Government 	Code
sections 3514.5, 	3541.5 	or 3563.2 	or because
a dispute 	arising under HEERA is 	subject 	to
final 	and binding 	arbitration.
(6) 	Issue a complaint pursuant 	to 	section
32640.
(c) 	The respondent 	shall be apprised of 	the
allegations, 	and may state 	its position on
the 	charge 	during 	the 	course 	of 	the
inquiries.
11

summary dismissal.
DISCUSSION
The Association 	raises 	strong 	objection 	to 	the manner 	in
which 	the 	Board agent processed 	the unfair practice 	charge.
While we do not 	agree 	that 	PERB Regulation 32620 mandates 	that 	a
certain procedure 	or method 	of 	investigation must 	be 	utilized 	in
all 	circumstances, 	the regulation does 	require 	that 	the Board
agent 	investigating 	the 	charge 	facilitate 	communication and 	the
exchange 	of 	information between 	the parties, 	and make 	inquiries
and 	review the 	charge 	and accompanying materials 	to determine 	if
an unfair practice 	has been 	committed.
In this 	case, 	the Board agent made no 	inquiries 	of 	the
Association 	even 	after 	she 	had 	contacted and 	elicited
contradictory 	information 	from the District. 	This 	prevented 	the
Association 	from responding 	to 	the District's assertions, 	and may
have 	influenced her 	to 	credit 	the District's 	factual 	claims
rather than to assume 	that 	the Association's 	statement 	of 	facts
was true.
The Board agent 	is 	expected to discuss 	the 	charge with the
respondent and, 	under Riverside Unified School District, 	supra.
PERB Decision No. 	562a, 	may dismiss a charge 	if 	the 	information
provided by 	the 	respondent 	adds 	facts 	that 	defeat 	a prima 	facie
case. 	However, 	a Board agent may not dismiss a charge because
he/she believes 	the 	contradictory 	facts 	asserted by 	the
respondent 	over 	those 	alleged by 	the 	charging party. 	As
discussed below, 	the allegations 	included 	in this 	charge were
12

sufficient 	to 	state a prima 	facie 	case 	of 	retaliation and 	the
Board agent's 	conclusion to 	the 	contrary was based 	on her 	failure
to assume 	that 	the 	facts 	as alleged by the Association were 	true.
In order to 	establish a prima 	facie 	case 	of 	discrimination
or 	retaliation, 	the unfair practice 	charge must 	allege 	that 	the
employee 	engaged 	in activity protected by 	the Act; 	the 	employer
was 	aware 	of 	that 	activity; 	the 	employer took adverse action
against 	the 	employee; 	and 	its 	action was motivated by 	the
protected activity. 	This 	is 	the 	test 	or 	standard adopted by the
Board in Novato Unified School District, 	supra, 	PERB Decision
No. 210.
--
Proof 	of 	a 	connection or 	"nexus" 	between the 	employee's
protected 	activity and 	the 	employer's 	conduct 	is 	an 	essential
element 	of a discrimination charge. 	However, 	since direct proof
of unlawful motivation is 	often unavailable, 	the Board has
identified 	certain 	circumstantial 	evidence 	that 	may 	establish 	the
necessary nexus. 	These include: 	1) 	timing of the employer's
adverse 	action 	in relation 	to 	the 	employee's 	protected activity;
2) 	disparate treatment of the employee; 	3) 	the employer's
departure 	from established procedures 	and standards; 	4) 	the
employer's 	inconsistent 	or 	contradictory 	justifications 	for 	its
actions; 	5) 	the employer's 	cursory investigation of the
employee's misconduct; 	6) 	the employer's 	failure to offer the
employee a justification at 	the 	time 	it 	took the action, 	or
offering exaggerated, 	vague, 	or ambiguous 	reasons 	for its action.
(See Moreland Elementary School District, 	supra, 	PERB Decision
13

No. 227.)
In this 	case, 	there 	is no dispute 	that Wright 	engaged in
protected activities 	about which the District was 	aware. 	The
amended 	charge 	details 	six separate 	instances where Wright
exercised rights 	guaranteed by the Act. 	Indeed, 	one 	of 	the
protected activities noted 	- - 	the previously filed unfair
practice 	charge 	against 	the District 	-- 	itself 	refers 	to 	several
additional 	examples 	of protected activities 	in which Wright
engaged. 	What emerges from the allegations 	is 	that, 	since May
1989, 	Wright 	has 	repeatedly asserted his 	right 	granted by EERA
section 3543 	"to form, 	join, 	and participate 	in the activities of
employee organizations 	. 	. 	. 	for the purpose of representation on
all matters 	of 	employer-employee 	relations."
With one exception, 	it 	is 	also undisputed that 	the District
took adverse 	action against Wright. 	Issuance of 	the 	derogatory
disciplinary memos 	and the 	teacher evaluation report, 	as 	well 	as
Wright's 	removal 	from the 	coaching position, 	all 	are 	adverse
actions because 	they 	resulted 	in some 	injury to 	the 	employee.6
6The District's 	failure 	to 	thank Wright 	for helping 	in
moving gym equipment 	at 	the 	same 	time 	it 	thanked other 	teachers
who did so 	is not an adverse action. 	In Palo Verde Unified
School District 	(1988) 	PERB Decision No. 	689, 	the Board applied
an objective 	test 	to determine whether employer 	conduct 	actually
resulted 	in injury. 	In this 	case, 	the 	injury to Wright 	caused by
the 	District's 	failure 	to 	thank him for his 	after hours
assistance 	is 	remote. 	While Wright may subjectively have
perceived 	the 	omission of 	his 	name 	as 	an 	insult 	or a 	deliberate
slight, 	the 	charge does not 	include 	factual 	allegations 	to
substantiate 	harm based on an objective 	standard. 	While 	we 	do
not view the 	failure 	to 	thank Wright 	as 	a 	retaliatory adverse
action, 	we have 	considered it as part 	of 	the 	totality of
circumstances 	in determining whether 	there was 	sufficient
evidence 	to 	establish unlawful 	motive.
14

Thus, 	the 	central 	issue before 	the Board is whether the
factual 	allegations 	in the 	amended unfair practice 	are 	sufficient
to 	establish nexus 	so as 	to state a prima 	facie 	case 	of
retaliation/discrimination. 	Weighing heavily 	in 	favor of 	that
finding 	is 	the prior unfair practice 	charge and, 	in particular,
Alexander's 	involvement 	throughout. 	Not 	only was 	he 	implicated
in several 	of 	the protected activities 	cited in both charges, 	but
he was 	also expressly named 	in the 	terms 	of 	the 	settlement
agreement as 	someone who, 	in essence, 	should keep his distance
from Wright. 	Given that background, 	we 	find Alexander's
investigation 	into 	the matters 	involving 	gym class 	supervision
and use 	of pejorative 	statements 	to 	raise 	a 	strong 	inference 	that
the 	adverse 	actions 	were 	unlawfully motivated by Wright's 	prior
protected activity. 	It 	is also noted that 	it was Alexander who,
according 	to 	the allegations, 	deleted Wright 	from those 	thanked
for 	their help 	in moving 	the gym equipment. 	Given the prominent
role Alexander played 	in this 	and the prior unfair practice, 	we
do not 	find that 	the passage 	of 	time between Wright's protected
activities 	and the adverse actions 	defeats 	the 	inference 	of
unlawful motive.
In addition to Alexander's possible animosity, 	there are
other 	factors 	from which nexus may be 	inferred. 	In the 	case 	of
Wright's 	failure 	to supervise his 	students, 	the 	charge asserts
that 	the District 	treated Wright 	in a disparate manner and
departed 	from established procedures 	and 	standards 	because 	no
other 	teacher 	had been disciplined 	for momentarily being 	outside
15

the presence of his 	students. 	Similarly, 	in the 	case of Wright's
use of pejorative 	language, 	the 	charge 	includes 	allegations 	that
the 	District 	departed 	from established procedures 	and 	standards
for 	investigating 	student 	complaints 	against 	teachers. 	Issuance
of 	the teacher evaluation report, 	it 	is alleged, 	is a departure
from established procedures 	and 	standards 	because 	it 	was 	done 	in
direct 	conflict with the parties' 	prior settlement 	agreement 	and
provisions 	of 	their 	collective bargaining agreement. 	Allegations
concerning Wright's 	non-retention as 	volleyball 	coach also
include 	assertions 	that 	the District's 	requirement 	that Wright
submit 	a 	separate 	note 	seeking 	the 	assignment 	was 	a departure
from past 	practice.
In sum, 	we 	find the allegations 	contained 	in the 	charge were
sufficient 	to 	establish 	the 	requisite 	nexus 	between 	the 	adverse
actions 	and Wright's 	protected activities. 	Alexander's
involvement 	plus 	repeated assertions 	of 	disparate 	treatment 	and
departure 	from past 	practice 	provide 	an adequate 	basis 	upon which
to 	issue 	a 	complaint 	and proceed 	to hearing. 	The 	Board agent's
conclusion 	to 	the 	contrary was 	based 	on her mistaken acceptance
of 	factual assertions 	raised by the District, 	assertions 	to which
the Association was 	given no opportunity to 	respond. 	In reaching
this 	conclusion, 	we do not reach the merits of 	the case. 	The
Board 	finds 	that 	a prima 	facie 	case 	of 	EERA section 3543.5(a) 	and
(b) 	violations has been stated.
ORDER
The Board agent's dismissal 	is 	REVERSED 	in Case No.
16

S-CE-1501 	and 	the 	charge 	is 	REMANDED 	to 	the General 	Counsel 	for
the 	issuance 	of 	a 	complaint 	based upon 	the 	alleged violations 	of
EERA section 3543.5(a) 	and 	(b).
Members 	Caffrey and Carlyle 	joined 	in 	this 	Decision.
17