Sulphur Springs Union Elementary School District (Garcia) (PERB 1229E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

VICTORIA GARCIA, )

Charging Party, ) Case No. LA-CE-3775
)
Vv. ) PERB Decision No. 1229
)
SULPHUR SPRINGS UNION ELEMENTARY ) November 13, 1997
SCHOOL DISTRICT, )
)
Respondent. )
)
Appearances: Victoria Garcia, on her own behalf; Parker, Covert

& Chidester by Margaret A. Chidester, Attorney, for Sulphur
Springs Union Elementary 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.
Garcia's charge alleges that the Sulphur Springs Union Elementary
School District (District) violated section 3543.5(a) of the

Educational Employment Relations Act (EERA)* when it gave Garcia

‘RERA 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.

two unfavorable evaluations.
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 	of
prejudicial 	error and adopts 	them as 	the 	decision of 	the 	Board
itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-3775 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Jackson 	joined 	in 	this 	Decision.
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! 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 18, 	1997
Victoria P. 	Garcia
Re: 	Victoria Garcia v. 	Sulphur Springs Union School District
Unfair Practice Charge No. 	LA-CE-3775
DISMISSAL/REFUSAL TO ISSUE COMPLAINT
Dear Ms. Garcia:
In this charge filed on March 19, 	1997 against the Sulphur
Springs Union School District 	(District), 	you allege that the
District has acted unlawfully in violation of Government Code
section 3543.5 of the Educational Employment Relations Act
(EERA). 	You allege that 	"This Principal has decided to act in a
prejudicial way and stop of me of continuing substituting in that
District." 	(sic)
I indicated to you, 	in my attached letter dated July 10, 	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
17, 	1997, 	the charge would be dismissed.
I have not 	received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons contained in my July 10, 	1997 letter.
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
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LA-CE-3775
Dismissal Letter
July 18, 	1997
Page 2
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.
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.
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LA-CE-3775
Dismissal Letter
Page 3
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
MARC S. HURWITZ
Regional Attorney
Attachment
cc: 	Margaret A. Chidester, Esq.

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 10, 	1997
Victoria Garcia
Re: 	Victoria Garcia v. 	Sulphur Springs Union School District
Unfair Practice Charge No. 	LA-CE-3775
WARNING LETTER
Dear Ms. Garcia:
In this charge filed on March 19, 	1997 against the Sulphur
Springs Union School District 	(District), 	you allege that the
District has 	acted unlawfully in violation of Government 	Code
section Government Code section 3543.5 of the Educational
Employment Relations Act 	(EERA) . 	You allege that 	"This Principal
has decided to act 	in a prejudicial way and stop of me of
continuing substituting in that District." 	(sic)
My investigation revealed the 	following information. 	You worked
as a Substitute Teacher for the District in or about February
1997. 	Your charge alleges the following six allegations:
Enclosed is a letter were 	(sic) 	all allegation 	(sic)
are made up lies by the Principal, 	(emphasis 	in
original.)
Second, 	principa	1 - 	l appeared to be cooperative in front
of me but practice indecent behavior 	(two faces
deceitful) 	when he wrote this letter.
Third, 	I discuss the point of the key with the
Assistant 	Principal, 	and shared my concerns and that 	I
notice there was no key in the substitute folder. 	One
of the students came back around 	(9:30 a.m.) 	and said
the lady in the office said 	'it is there' 	and that 	'is
the end of 	the discussion.' 	At lunch around 12:00 a.m.
I formally said to the Principal 	'the key is not
there.' 	He insisted, 	'were are not wrong' 	(sic) 	the
key has to be there' 	in the substitute folder. 	Why do
I bring the key issue, 	because these were pre-meditated
acts of 	'harm' 	and of course, 	the letter that follows
support their malice acts: 	I was the irresponsible
person. 	(emphasis in original.)
1The letter you referred to was not 	enclosed with the
charge.
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Fourth, 	before I left at 3:45 I checked with the
Principal and Assistant Principal, 	that everything was
fine. 	The Principal had a chance of talking to me
[illegible] 	Why 2 weeks latter 	(sic), plays the role of
an under-covered 	(sic) 	investigator, 	to check about the
letter of concern to the District and accussed 	(sic) 	of
his own errors.
Fifth, 	a defamation has been done in this case.
Sixth, 	how can I be expected to correct papers
(subjective) 	essays ones with no outlines, 	or answer
sheets 	and teach 36/34 	sixth graders?
You also indicated on the front of your charge that you wrote a
"plead letter to Superintendent" 	to address 	to the Board Members
(See 	it described below).
By letter dated February 18, 	1997 from Gayle Abril, 	Principal at
Mitchell Community School, 	regarding your February 12, 	1997
Substitute Evaluation for your assignment with Pam Hersh, 	you
were advised that you received an overall 	rating of 	'not
acceptable". 	You were advised 	to call 	to obtain feedback in
order to avoid receiving additional unsatisfactory ratings, 	as
three such ratings 	could result 	in your removal 	from the list of
substitutes. 	You responded on March 25, 	1997, 	indicating to
Abril 	the following:
Thank you for your letter. 	First, 	I can not understand
the non acceptable rating since the sub folder did not
my portion of the rating 	(sic). 	Therefore, 	it's a
capricious. 	punitive rating. 	Second, 	when I asked for
the 	form and I quote your secr. said--'Yout (sic)
school did not use the form.' 	(emphasis 	in original.)
Third, 	I'm sure and confident 	this 	could be resolved.
Are 	(sic) 	teachers have licenses to evaluate-anyway?
How can you've a system gear to have one 	teacher
against another one 	(sic).
By letter dated February 27, 	1997 from Tom Garvey, 	Principal of
Pinetree Community School, 	you were notified that 	for your work
as a Substitute Teacher in Mrs. 	Scarcello's sixth grade classroom
on February 13, 	1997, 	you received an unsatisfactory evaluation.
Garvey noted that you ignored specific 	instructions 	relating to
the PAL 	(tutor). 	Regarding Math, 	instructions were not followed;
plus you provided students extra worksheets which you xeroxed
from the teacher's book. 	Regarding Reading, 	although your
students were to read from the book for an examination, 	the
reading wasn't completed. 	Regarding Art, 	the plan was not
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followed. 	Regarding Creative Writing, 	Garvey indicated that:
you did not 	return the edited stories to the students.
The 	teacher stated in the 	lesson plan that 	she would be
coming to school 	to collect. 	This resulted in several
students missing the deadline for the 	'Young Author's
Contest'. 	Apparently you used the writing time to
teach the students Spanish words. 	In your defense, 	you
asked if 	it was all 	right 	to review some Spanish words
with the students. 	I gave you permission not knowing
that you were using time 	that 	should have been devoted
to writing.
You left a letter at the District Office 	[on or about
February 13, 	1997], 	which Garvey responded to in his February 27,
1997 letter. 	Garvey agreed with you that the teacher did not
have a seating chart. 	Although the Substitute folder contained
no lesson plans, 	Garvey located them on the teacher's 	table and
gave them to you the first 	few minutes of the day.2 Regarding
the copy machine, 	as you arrived at school late, 	the
administration did not have 	time 	to review with you as a new
Substitute Teacher school procedures, 	or show you around the
office, 	in or to familiarize you with the copy machines and
restrooms. 	Garvey noted that this was the first time a key had
been lost. 	Finally, 	Garvey thanked you for your idea to use yarn
or a key holder for the classroom key, 	and was agreeable for you
to call 	for an appointment if you wanted to discuss his letter.
By letter dated March 13, 	1997, 	you wrote Superintendent Robert
Nolet, 	Ed.D., 	a confidential letter and stated as follows:
I am addressing to you because I must be place in your
next Board meeting 	(close doors) 	about the erroneous
allegations by your Principal Mr. 	Garvey. 	(sic)
Before I left the school, 	I asked the secretary if I
had to fill 	out an evaluation about how my day went.
The secretary said we do not have that system here.
From letter dated February 27 	from Mr. 	Garvey page 1.
Math and Reading was 	followed. 	Creative writing is
writing, 	it certainly does not include to correct the
regular teacher's assignment. 	There are many reasons
20n April 23, 	1997, you advised me, 	in part, 	that the lesson
plans 	showed up 45 minutes after class began; 	and that Garvey
writes up minorities to keep them out of his school.
3In April 	1997, 	you advised me that your late arrival at
Pinetree School was an honest mistake in that you first went to
Mint Canyon Community School, 	the wrong location.
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why essays all 	the way from elementary to college level
are corrected by the regular teacher. 	(emphasis 	in
original.)
Second page: 	the whole page is un-true. 	Keys were not
-	given to me. 	I do not see why an Administrators 	(sic)
uses substitutes to project his unsatisfaction of his
job. 	(emphasis in original.)
Would be more than happy to contact you but 	I will be
reporting this outline behavior to the proper State
Agency.
I want 	to thank you in advance for taking the time to
read my plead and if your principals want 	to place
substitutes as 	they wish 	(preferential 	treatment-
includes 	closing the door at minorities and other
reasons), 	perhaps the Board need's 	(sic) 	to be aware of
it.
Dr. Nolet wrote you on March 21, 	1997 acknowledging receipt of
your March 13, 	1997 letter. 	He requested you set up a time to
meet him regarding the 	issues you raised; 	and he wanted to work
on scheduling a time for you to meet with the Trustees at a Board
Meeting.
Based on the above information, 	the charge fails to state a prima
facie case 	for the 	following reasons. 	A charging party must
allege the "who, what, when, where, and how" of an unfair
practice. 	(United Teachers-Los Angeles 	(Ragsdale) 	(1992) 	PERB
Decision No. 	944.) 	Mere legal conclusions are insufficient.
(See State of 	California 	(Department 	of 	Food and Agriculture)
(1994) 	PERB Decision No. 	1071-S.) 	Your charge does not provide
the necessary facts to demonstrate the elements of a prima facie
discrimination case, 	as described 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
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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).
More specifically, 	your charge does not 	clearly demonstrate that
you engaged in protected activity prior to 	the alleged adverse
actions in February 1997. 	Even if we assume there is protected
activity, 	the charge does not clearly demonstrate that the
adverse actions were taken because of 	the protected activity
(nexus).
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 be served on the respondent4 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 17, 	1997, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3543.
Marc S. Hurwitz
Regional Attorney
4The District's counsel 	in this matter is Margaret A.
Chidester, 	Esq. 	of Parker, 	Covert & Chidester in Tustin,
California.