Decision 2038H – Trustees of the California State University * * * OVERRULED IN PART by Visalia Unified School District (2022) PERB Decision No. 2806

SF-CE-870-H

Decision Date: June 11, 2009

Decision Type: PERB Decision

* * * OVERRULED IN PART by Visalia Unified School District (2022) PERB Decision No. 2806 * * *

Description:  Kyrias alleged that CSU retaliated against her for serving as a union steward by taking various adverse actions, including threatening a reassignment, withdrawing a reclassified position, and denying her request to work full-time hours.

Disposition:  The Board affirmed the Board agent’s dismissal of the charge.  Many of the allegations in the charge were untimely.  The timely allegations failed to state a prima facie case of retaliation.  Of the three timely allegations, only CSU’s threat to reassign Kyrias to a position with less complex duties constituted an adverse action.  The charge failed to allege facts establishing a nexus between Kyrias’s protected activity and the threatened reassignment.

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Perc Vol: 33
Perc Index: 106

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

* * * OVERRULED IN PART by Visalia Unified School District (2022) PERB Decision No. 2806, where the Board held that an employee’s status as a union official is enough by itself to constitute protected activity under all statutes that PERB enforces. * * *

Representing an employee in a grievance proceeding and filing a grievance on one’s own behalf are protected activities. Merely holding the position of union steward, without evidence that the employee actually engaged in specific protected acts, is insufficient to constitute protected activity.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

* * * OVERRULED IN PART ON OTHER GROUNDS by Visalia Unified School District (2022) PERB Decision No. 2806. * * *

Representing an employee in a grievance proceeding and filing a grievance on one’s own behalf are protected activities.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.13000 – Holding Union Office

* * * OVERRULED IN PART by Visalia Unified School District (2022) PERB Decision No. 2806, where the Board held that an employee’s status as a union official is enough by itself to constitute protected activity under all statutes that PERB enforces. * * *

Merely holding the position of union steward, without evidence that the employee actually engaged in specific protected acts, is insufficient to constitute protected activity.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

* * * OVERRULED IN PART ON OTHER GROUNDS by Visalia Unified School District (2022) PERB Decision No. 2806. * * *

Threat to reassign employee from position requiring use of independent judgment to position doing basic clerical work constituted adverse action. Withdrawal of reclassified position not adverse when employee was not qualified for position. Denial of employee’s request to work full-time hours not adverse when employee was unable to work full-time hours.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities

* * * OVERRULED IN PART ON OTHER GROUNDS by Visalia Unified School District (2022) PERB Decision No. 2806. * * *

Threat to reassign employee from position requiring use of independent judgment to position doing basic clerical work constituted adverse action. Withdrawal of reclassified position not adverse when employee was not qualified for position.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.03000 – Computation of Six-Month Period

* * * OVERRULED IN PART ON OTHER GROUNDS by Visalia Unified School District (2022) PERB Decision No. 2806. * * *

The statute of limitations begins to run when the charging party discovers the conduct that constitutes the unfair practice, not when the charging party discovers the legal significance of that conduct. Employee’s discovery that her failure to receive pay raises outside the limitations period may have been discriminatory did not re-start the statute of limitations period; limitations period began to run when employee received her paycheck that did not include a raise.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.01000 – In General

* * * OVERRULED IN PART ON OTHER GROUNDS by Visalia Unified School District (2022) PERB Decision No. 2806. * * *

The statute of limitations begins to run when the charging party discovers the conduct that constitutes the unfair practice, not when the charging party discovers the legal significance of that conduct. Employee’s discovery that her failure to receive pay raises outside the limitations period may have been discriminatory did not re-start the statute of limitations period; limitations period began to run when employee received her paycheck that did not include a raise. Under the continuing violation doctrine, a violation within the statute of limitations period may revive an earlier violation of the same type that occurred outside the limitations period. Continuing violation doctrine did not apply to alleged retaliatory actions that occurred more than six months before the charge was filed because no actions of the same type were taken by the employer within the limitations period.

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

* * * OVERRULED IN PART ON OTHER GROUNDS by Visalia Unified School District (2022) PERB Decision No. 2806. * * *

Employer’s statement that it planned to reorganize positions to increase efficiency and streamline processes was not vague or ambiguous reason for employee’s reassignment. Employer’s claim in its position statement that reorganization plan was merely a proposal did not establish that employer gave employee inconsistent reasons for the reorganization.

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

* * * OVERRULED IN PART ON OTHER GROUNDS by Visalia Unified School District (2022) PERB Decision No. 2806. * * *

Timing factor not established when adverse action occurred before employee filed grievance and more than three years after employee’s other protected activity.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.03000 – Departure from Past Practices or Procedures

* * * OVERRULED IN PART ON OTHER GROUNDS by Visalia Unified School District (2022) PERB Decision No. 2806. * * *

Employer did not fail to follow established procedures for reclassifying a position. The employer decided against the reclassification before it was final and therefore was not required to complete all of the steps necessary for the reclassification.

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

* * * OVERRULED IN PART ON OTHER GROUNDS by Visalia Unified School District (2022) PERB Decision No. 2806. * * *

Allegation that employee was treated differently than other similarly situated employees failed to establish nexus when alleged disparate treatment was unrelated to the adverse action.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.11000 – Hours and Overtime, Work Schedules

* * * OVERRULED IN PART ON OTHER GROUNDS by Visalia Unified School District (2022) PERB Decision No. 2806. * * *

Denial of employee’s request to work full-time hours not adverse when employee was unable to work full-time hours.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.04000 – Continuing Violation

* * * OVERRULED IN PART ON OTHER GROUNDS by Visalia Unified School District (2022) PERB Decision No. 2806. * * *

Under the continuing violation doctrine, a violation within the statute of limitations period may revive an earlier violation of the same type that occurred outside the limitations period. Continuing violation doctrine did not apply to alleged retaliatory actions that occurred more than six months before the charge was filed because no actions of the same type were taken by the employer within the limitations period.