Decision 2420E – Jurupa Unified School District

Charging party’s attendance at the hearing concerning another employee was not protected, because there was insufficient evidence to establish that the purpose for his attendance was to investigate possible contract violations or other policy violations. That there may have been others at the hearing is irrelevant to the finding that no evidence was presented showing how or why the other employee’s employment dispute had anything to do with charging party’s disputes with the employer. The Board declined to affirm the ALJ’s conclusion – consistent with Board precedent – that charging party’s request for personal necessity leave under the CBA was not protected because it was not a “logical continuation of group activity,” saving for another day full consideration of whether the Board’s precedent should be overturned.

Group complaints about employment concerns are protected under EERA. This rationale would also apply to a lawsuit filed by a group of employees, if that lawsuit addressed common employment concerns. Utilizing the grievance procedure of the CBA, with or without the assistance of the exclusive representative, is protected activity.

Filing unfair practice charges with PERB and participating in the Board’s adjudication processes are acts protected by EERA.

Seeking help from a union regarding employment concerns is protected activity.

Employer action is not evidence of discriminatory motivation when there is no evidence that, subsequent to charging party engaging in protected activities, the employer’s actions and handling of discipline differed from that prior to his protected activity, or when there is no evidence that the employer’s handling of charging party’s discipline differed from that of any other similarly-situated employee. Consistent violations of the Education Code before and after charging party’s protected activity that allegedly demonstrated a lack of just cause or procedural violations would not, by themselves, indicate improper motivation because of protected activity.

Employer action is not evidence of discriminatory motivation when there is no evidence that, subsequent to charging party engaging in protected activities, the employer’s actions and handling of discipline differed from that prior to his protected activity, or when there is no evidence that the employer’s handling of charging party’s discipline differed from that of any other similarly-situated employee. Consistent violations of the Education Code before and after charging party’s protected activity that allegedly demonstrated a lack of just cause or procedural violations would not, by themselves, indicate improper motivation because of protected activity. Employer’s premature attachment of student complaints to summary of allegations against charging party, when it is the employer’s policy and practice not to provide written complaints to employees until the employee is going to a dismissal hearing, did not demonstrate that the employer predetermined the outcome of its investigation of charging party, and do not constitute circumstantial evidence of causal nexus between charging party’s protected activity and the employer’s termination of his employment. The employer benefitted charging party by giving him the statements along with the summary of allegations. An employer’s conduct that departs from past investigatory practice, but which inures to an employee’s benefit, is not evidence of unlawful motivation. Additionally, there is no basis to conclude that charging party was prevented from responding to this summary of allegations. District’s failure to provide a full evidentiary hearing prior to the District’s decision to initiate dismissal proceedings against a permanent certificated employee, failure to provide prior notice that the board was going to vote over whether to issue a notice of intent to terminate charging party’s employment, and District’s refusal to permit employee to address a school district governing board prior to its vote over the intent to impose discipline, were not evidence of unlawful motivation. When District’s maintenance of employee site files and investigation files, separate from the official personnel file, is the District’s regular practice, and when charging party was afforded the opportunity to review these files, there is no indication of departure from past practice.

The inconsistency in the District witness’ testimony regarding school principal’s level of involvement in an investigation of student allegations against charging party permit an inference of unlawful motivation.

A manager’s mere dislike of a charging party does not, in and of itself, demonstrate nexus. From the school principal’s e-mail stating he was “taking out a hit on” charging party, it is apparent that the school principal harbored a bias against charging party, but not because of charging party’s protected activity. The bias instead stemmed from the principal’s belief that he was “bad for kids.” Such bias does not violate EERA.

Any slight irregularities in the investigation process or hints of bias are overshadowed by charging party’s admissions of several allegations of misconduct against him, many of which occurred prior to his protected conduct. Even where there is some evidence of nexus, an employee’s dismissal may be justified where the charges against an employee are mostly true. Where an employer has legitimate concerns over how a teacher’s conduct may affect the integrity of its education program, PERB has refused to disturb the employer’s decision to terminate employment. The fact that students repeatedly raised concerns about charging party to administrators, especially across multiple years and at different school sites, suggests that the District’s concerns about his effect on the integrity of the educational program were legitimate.

Charging party’s motion to re-introduce a previously withdrawn charge by amending the complaint at the hearing was untimely, since the alleged conduct occurred more than six months prior to the motion.

Charging party’s motion to re-introduce a previously withdrawn charge by amending the complaint at the hearing was untimely, since the alleged conduct occurred more than six months prior to the motion.

The Board will disregard exceptions that fail to address the “issue central to the proposed decision.”