Pasadena Unified School District (PERB 1331E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ROY ALBERT SCHULZ, )

Charging Party, ) Case No. LA-CE-4008
Vv. )) PERB Decision No. 1331
PASADENA UNIFIED SCHOOL DISTRICT, , May 13, 1999
Respondent.
)
Appearances: Roy Albert Schulz, on his own behalf; Parker,

Covert & Chidester by Cathie L. Fields, Attorney, for Pasadena
Unified School District.

Before Caffrey, Chairman; Dyer and Amador, Members.
DECISION
CAFFREY, Chairman: This case is before the Public
Employment Relations Board (Board) on appeal by Roy Albert Schulz
(Schulz) of a Board agent's dismissal (attached) of his unfair
practice charge. In his charge, Schulz alleged that the Pasadena
Unified School District (District) violated section 3543.5(a) of

the Educational Employment Relations Act (EERA)* by

IRERA 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.

22
discriminating 	against 	him 	for his 	participation 	in protected
activities.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge, 	the Board agent's warning
and dismissal 	letters, 	Schulz's appeal 	and the District's
response. 	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-4008 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.

,..
STATE OF CALIFORNIA 	( 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
March 16, 	1999
Roy Albert 	Schulz
Re: 	Roy Albert 	Schulz v. 	Pasadena Unified 	School 	District
Unfair Practice 	Charge No. 	LA-CE-4008
DISMISSAL AND 	REFUSAL 	TO 	ISSUE A COMPLAINT
Dear Mr. 	Schulz:
I 	indicated to you, 	in my attached letter dated March 5, 	1999,
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
March 12, 	1999, 	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 March 4, 	1999 	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 	(2 0) 	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, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be 	provided 	to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received before
the 	close of business 	(5 p.m.) 	on the 	last 	day set 	for 	filing or
when mailed by certified or Express 	United 	States 	mail, 	as 	shown
on the postal 	receipt 	or postmark, 	or delivered to 	a 	common
carrier promising overnight 	delivery, 	as 	shown on the 	carrier's
receipt, 	not 	later than the last 	day set 	for filing. 	(Cal. 	Code
Regs., tit. 8, 	sec. 32135(a); see also Cal. Code Regs., tit. 8,
sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of 	business 	on 	the 	last 	day 	for
filing 	together with 	a 	Facsimile 	Transmission Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit.8, 	sec. 	32135(d),
provided the 	filing party also places 	the 	original, 	together with
•I.	
•I.

( 	(
LA-CE-4008
Dismissal 	Letter
Page 2
the required number of copies and proof of service, 	in the U.S.
mail. 	(Cal. 	Code. Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. Code Regs., tit. 8, 	secs. 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 327-7960
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 (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. 	A document 	filed by facsimile 	transmission
may be 	concurrently served via 	facsimile 	transmission on all
parties to the proceeding. 	(Cal. Code Regs., 	tit. 	8, 	sec.
32135(c) .)
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-4008
Dismissal 	Letter
Page 3
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: Cathie L. Fields

(ii)
STATE OF CALIFORNIA 	f 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
March 5, 	1999
Roy Albert 	Schulz
Re: 	Roy Albert Schulz v. 	Pasadena Unified School District
Unfair Practice Charge No. 	LA-CE-4008
WARNING LETTER
Dear Mr. Schulz:
In the above-referenced charge Roy Albert 	Schulz alleges 	the
Pasadena Unified School District 	(PUSD or District) 	violated the
Educational Employment Relations Act 	(EERA or Act) 	§ 3543.5(a) 	by
discriminating against him for his participation in protected
activities. 	My investigation revealed the 	following information.
Schulz was a substitute teacher within the District. 	Schulz also
served as 	the President 	of the 	Pasadena Area Substitute Teachers
Association 	(PASTA). 	PASTA is a non-exclusive representative
seeking exclusive representative status. 	On March 16, 	1998,
Schulz 	represented PASTA in formal discussions with the District
regarding substitute assignment procedures. 	Schulz also
addressed the Board of Education regarding similar issues.
On April 22, 	1998, 	Schulz was a substitute for Sharon Nicholls'
class. 	Upon her return, 	the students reported that Schulz had
used racially derogatory language when describing the 	students.
On April 27, 	1998, 	Nicholls wrote to Principal Susan Ballantyne
reporting the incident. 	On April 27, 	1998, 	Ballantyne forwarded
the letter to Assistant Superintendent, 	Marietta Palmer, 	and
requested Schulz not be assigned to substitute at the Marshall
School. 	On May 6, 	1998, 	Principal Richard Boccia filed an
incident 	report against 	Schulz when a student and a witness
alleged Schulz had kicked the 	student.
On May 13, 	1998, 	and May 26, 	1998, 	Schulz and his representative
Warren Fletcher met with Palmer. 	Palmer asked Schulz to respond
to the above-cited reports. 	Schulz refused to respond to the
reports and requested copies of the students' 	statements. 	Palmer
refused to provide the students' 	statements and requested that
Schulz respond to the statements of the adults. 	Schulz refused.
On May 27, 	1998, 	Schulz filed a written response to the
allegations without the benefit of seeing the students'
statements.
(ii)

LA-CE-4008
Warning 	Letter
Page 2
On May 27, 	1998, 	Palmer removed Schulz 	from its 	substitute
teacher 	list 	and 	sent 	him a 	letter 	discontinuing 	his 	service 	with
the District.
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 	(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; 	North Sacramento 	School 	District 	(1982) 	PERB Decision
No. 	264.)
In 	the 	instant 	charge 	Schulz 	engaged 	in protected activities 	when
he 	served as 	the 	President of 	PASTA. 	On March 16, 	1998, 	Schulz
represented 	PASTA 	in 	formal 	discussions 	with the 	District. 	The
District 	acknowledges 	it 	had actual 	knowledge 	of 	Schulz'
protected activities. 	Schulz' 	termination on May 27, 	1998, 	is
close 	in 	time 	to his 	protected 	activities 	as 	the 	PASTA President.
However, 	timing alone 	is 	insufficient. 	(Moreland Elementary
School District, 	supra.)
In addition to 	timing, 	the 	charge makes 	three 	arguments 	in
support 	of nexus: 	(1) 	the District 	departed 	from established
procedures 	by 	failing 	to 	allow him to 	see 	the 	students'

LA-CE-4008
Warning 	Letter
Page 3
statements; 	(2) 	the District 	departed from established procedures
by 	failing 	to 	give 	him a 	copy 	of 	a 	substantiated 	child 	abuse
report; 	and 	(3) 	the District 	gave him vague 	and ambiguous 	reasons
for his 	termination. 	Each of 	these 	arguments 	is 	addressed
separately 	below.
The 	charge 	alleges 	that 	the 	District 	departed 	from procedures 	by
refusing 	to 	allow Schulz 	to view the 	children's 	statements. 	The
charge 	alleges 	the 	District 	departed 	from 	PUSD 	Board 	Policy
4112.6 	which gives 	employees 	the 	right 	to 	inspect 	and respond 	to
materials 	in their personnel 	files. 	However, 	the 	charge 	fails 	to
provide 	facts 	indicating there 	are 	any documents 	in 	Schulz'
personnel 	file which 	Schulz 	has 	not 	been given permission 	to
view. 	The 	charge 	does 	not 	provide 	facts 	indicating 	the 	students'
statements are 	in Schulz' 	personnel 	file. 	Moreover, 	the District
provided 	the 	written 	statements 	of 	the 	teacher and 	the
principals. 	Thus, 	the 	charge 	does not 	factually demonstrate 	the
District 	departed 	from 	established procedures.
The 	charge 	also 	alleges 	the 	District 	departed 	from established
procedures 	by 	failing 	to provide 	Schulz with a 	copy of 	a 	child
abuse 	report. 	The 	charge 	indicates 	that 	PUSD Administrative
Regulation 	5141.4 	requires 	compliance 	with 	the 	law 	regarding 	the
reporting of 	suspected child abuse. 	The 	charge 	alleges:
The 	Child Abuse 	and Neglect 	Reporting Act
requires 	that 	suspected abuse 	by 	a 	school
employee 	be 	investigated by a 	child
protective 	agency. 	Penal 	Code 	Section
11165.14, 	part of that Act, 	requires that the
child protective 	agency 	determine 	whether 	the
report 	of 	child abuse 	is 	"substantiated," 	and
that 	a 	substantiated report 	of 	child abuse 	be
available 	for 	employee 	review 	and 	response
under 	the 	provisions 	of 	the 	Education Code
Section 44031. 	If 	the allegation is
substantiated, 	PUSD violated 	its 	own policy
and 	state 	law by refusing 	to make 	the 	report
available 	to Schulz. 	If 	the allegation is
not 	substantiated, 	Schulz was 	terminated
based on a 	child abuse 	report 	that 	was
"unfounded" 	or 	"unsubstantiated" 	as 	those
terms 	are 	defined 	in the 	Penal 	Code.
The 	above-stated 	argument 	does 	not 	factually demonstrate 	the
requisite 	nexus. 	The 	charge 	indicates 	the District 	departed 	from
procedures 	by 	failing 	to provide 	Schulz with a 	copy of 	a
substantiated child abuse 	report, 	but 	fails 	to provide 	facts
indicating 	a 	substantiated child abuse 	report 	exists. 	Since 	the
charge 	does 	not 	factually demonstrate 	a 	substantiated 	child 	abuse

(
LA-CE-4008
Warning 	Letter
Page 4
report exists, 	it does not appear the District departed from
established procedures when it 	failed to provide Schulz with a
copy of the report.
To the extent 	that 	the charge 	is alleging that 	the District
departed from established procedures because 	there was not 	a
report substantiating that Schulz kicked the student, 	it is also
without merit. 	The 	lack of a 	substantiated child abuse report
is not 	indicative of nexus. 	The District did not 	justify Schulz'
termination on his alleged kicking of a student, 	but on Schulz'
refusal 	to answer questions regarding two complaints 	against him.
Thus, 	whether the students' 	complaints were true is not at issue.
The 	lack of 	a 	substantiated child abuse report does not
demonstrate that the District's actions were retaliatory. 	Thus,
this allegation fails to support a finding of nexus.
The final allegation in support of nexus, 	is that the District
justified Schulz' 	termination with vague and ambiguous reasons.
However, 	both the May 26, 	1998 and June 3, 	1998, 	letters to
Schulz' 	representative, 	Fletcher provide specific reasons for
Schulz' 	termination. 	The May 26, 	1998, 	letter provides, 	in
pertinent part:
During the meeting of May 13, 	1998, 	and again
on May 26, 	Mr. 	Schulz refused to provide a
response to the 	inquiry by stating that he
wanted copies of the students' 	statements.
On each occasion, 	I presented him with the
statements of the principals and of the
teacher. 	He was asked to respond to the
statements of the adults.
I believe that Mr. 	Schulz's refusal to
respond is an act of 	insubordination designed
to circumvent 	the District's obligation and
responsibility to 	conduct 	an investigation
into allegations of wrongdoing. 	In addition,
the District provided Mr. 	Schulz with three
opportunities to respond: 	verbally during the
May 13, 	1998, meeting; verbally during the
May 26, 	1998, 	meeting; and in written form
during the 	interim.
The June 3, 	1998, 	letter indicates in pertinent part:
Mr. 	Schulz demonstrated absolute
insubordination by refusing to 	respond to

LA-CE-4008
Warning Letter
Page 5
employer inquiries 	related to the performance
of his duties.
The above-quoted letters provide specific reasons 	for the
District's action. 	The charge does not 	factually demonstrate
that 	the District provided vague and ambiguous 	reasons 	for its
action. 	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
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 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 March 14, 	1999, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
TAMMY L. SAMSEL
Regional 	Director