Decision 1529E – Oakland Unified School District

SF-CE-2283-E

Decision Date: June 20, 2003

Decision Type: PERB Decision

Description: OEA alleged that the District discriminated and retaliated against Robinson for his protected conduct. The Board agent found no nexus between Robinson’s protected conduct and the District’s decision to place him on administrative leave. The District’s act was allegedly related to two letters of complaint about Robinson. OEA requested copies of the letters but was unable to obtain them from the district or the Board agent.

Disposition: The Board found sufficient nexus to establish a prima facie case.   The letters constituted the District’s affirmative defense and should not have been the basis for the partial dismissal. The Board remanded the case for issuance of an amended complaint.

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Perc Vol: 27
Perc Index: 91

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.04000 – Individual/Concerted/Activities/Self-Representation

Employee memo to school principal complaining about unresolved committee issues involving teacher morale and teacher recommendations is protected activity.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.03000 – Misconduct

Once OEA stated a prima facie case of discrimination, the District’s defense that it would have placed Robinson on administrative leave regardless of his protected conduct is information that should be considered during the Board’s hearing process.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications

That the District did not offer the employee justification for placing him on administrative leave pending an investigation until a later time, and never informed him of the results of the investigation, is evidence of unlawful motivation.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.04000 – Timing of Action

Temporal proximity is shown when an employee sends two memoranda containing teacher complaints to the school principal and is placed on administrative leave four days later.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.02000 – Disparate Treatment

An employer’s disparate treatment of an employee is shown where in an argument between two District employees, only one is subsequently placed on administrative leave.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.14000 – Involuntary Leaves

Involuntary administrative leave is a form of adverse action.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

Involuntary administrative leave is a form of adverse action.

502.00000 – EMPLOYER DISCRIMINATION; PERSONS PROTECTED
502.01000 – In General

Employee memo to school principal complaining about unresolved committee issues involving teacher morale and teacher recommendations is protected activity.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

Once OEA stated a prima facie case of discrimination, the District’s defense that it would have placed Robinson on administrative leave regardless of his protected conduct is information that should be considered during the Board’s hearing process. Allegations comprising a defense to discrimination by the school district are properly considered during the Board’s hearing process, not during a consideration of whether sufficient evidence has been produced by the union to state a prima facie case.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

Temporal proximity is shown when an employee sends two memoranda containing teacher complaints to the school principal and is placed on administrative leave four days later. An employer’s disparate treatment of an employee is shown where, in an argument between two District employees, only one is subsequently placed on administrative leave. That the District did not offer the employee justification for placing him on administrative leave pending an investigation until a later time and never informed him of the results of the investigation, is evidence of nexus.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses

Allegations comprising a defense to discrimination by the school district are properly considered during the Board’s hearing process, not during a consideration of whether sufficient evidence has been produced by the union to state a prima facie case.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

A late filing of a response that is not served on the charging party will not be considered by the Board in evaluating charging party’s appeal.

1109.00000 – CASE PROCESSING PROCEDURES; ISSUES ON APPEAL
1109.01000 – In General

PERB Regulation 32635(b) precludes a charging party from presenting new evidence on appeal unless there is good cause. Good cause may be present in a situation where charging party fails to rebut an issue in its amended charge because: (1) Charging Party unsuccessfully requested evidence cited in the warning letter before filing an amended charge; (2) the amended charge offered an alternative view of the events sufficient to show a nexus; and, (3) Charging Party reasonably believed it did not have to contradict the respondent’s defense because the warning letter did not address the administrative leave issue and it comprised an affirmative defense to a prima facie case.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

PERB Regulation 32635(b) precludes a charging party from presenting new evidence on appeal unless there is good cause. Good cause may be present in a situation where OEA fails to rebut an issue in its amended charge because: (1) OEA unsuccessfully requested evidence cited in the warning letter before filing an amended charge; (2) the amended charge offered an alternative view of the events sufficient to show a nexus; and, (3) OEA reasonably believed it did not have to contradict the respondent’s defense because the warning letter did not address the administrative leave issue and it comprised an affirmative defense to a prima facie case.