Decision 2086E – Garden Grove Unified School District

LA-CE-5311-E

Decision Date: December 28, 2009

Decision Type: PERB Decision

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Perc Vol: 34
Perc Index: 25

Decision Headnotes

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

Employee’s complaints to her supervisor about after-hours bathroom and facility access and safety issues related to student discipline were protected activity under EERA’s protected right of self-representation.

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

Charging party failed to provide any details concerning the activities of a “faculty advisory committee” (FAC) that would permit the Board to determine that the FAC has a “representational purpose” so as to constitute an employee organization within the meaning of EERA section 3540.1(d). However, charging party’s complaints to her supervisor about after-hours bathroom and facility access and safety issues related to student discipline were protected activity under EERA’s protected right of self-representation. Therefore, even if charging party was not acting in her union capacity, her complaints constituted protected acts of self-representation.

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

Charging party failed to establish she was treated differently from other teachers by issuing her several evaluations and “letters of concern,” where the charge does not provide any information concerning existing policies for evaluating or observing teachers or the frequency or manner of observations and evaluations of other teachers.

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

Charging party failed to establish that the employer departed from past practices or procedures by denying her request to be evaluated by someone other than the human resources office, where she failed to establish evaluation process.

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

Lapse of two years between protected activity and alleged adverse action was insufficient to establish timing element of nexus.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.08000 – Cursory Investigation

Charging party failed to establish that employer’s comments during evaluation were based on false or accurate information, or that comments related to timely adverse actions.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.12000 – Employer Statements or Conduct; Threats

Charging party failed to establish that supervisor’s statements that she should go into a different line of work and that he believed that she would be placed into a peer review assistance program in the future demonstrated employer’s animus toward protected activities.

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

While actions outside the statutory limitations period may not be considered as separate violations in the absence of an independent violation within the limitations period they may nonetheless be considered as background evidence of the employer's motive.

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

Alleged pattern of retaliatory actions over a 2-1/2 year period does not establish a continuing violation, where charging party failed to establish that the employer’s actions within the statutory limitations period amount to a violation of EERA. While actions outside the statutory limitations period may not be considered as separate violations in the absence of an independent violation within the limitations period they may nonetheless be considered as background evidence of the employer's motive. In this case, however, the Board finds insufficient evidence to support a finding that employer’s evaluations and letters of concern issued prior to the statutory period demonstrate unlawful motivation.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.19000 – Newly Discovered Evidence

Documents referring to events that occurred long before the filing of the charge will not be considered on appeal, where charging party failed to offer any evidence of good cause for her failure to obtain and provide the evidence to the Board agent to consider.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

Documents referring to events that occurred long before the filing of the charge will not be considered on appeal, where charging party failed to offer any evidence of good cause for her failure to obtain and provide the evidence to the Board agent to consider.