Decision 2086E – Garden Grove Unified School District
LA-CE-5311-E
Decision Date: December 28, 2009
Decision Type: PERB Decision
Description: The charge alleged that the Garden Grove Unified School District retaliated against an employee for having engaged in protected activities.
Disposition: The Board upheld the dismissal of the charge, finding that the charge failed to establish a prima facie case of retaliation.
Perc Vol: 34
Perc Index: 25
Decision Headnotes
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.
300.04000 – 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.
504.02000 – 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.
504.03000 – 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.
504.04000 – Timing of Action
Lapse of two years between protected activity and alleged adverse action was insufficient to establish timing element of 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.
504.12000 – 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.
1101.01000 – 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.
1101.04000 – 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.
1105.19000 – 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.
1107.04000 – 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.