Decision 2450E – Jurupa Unified School District

LA-CE-5593-E and LA-CE-5744-E

Decision Date: August 31, 2015

Decision Type: PERB Decision

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Perc Vol: 40
Perc Index: 46

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.06000 – Demands for Change in Working Conditions

Participation in a group complaint to the employer and regulatory agencies about working conditions and employment concerns is protected conduct.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.09000 – Participation in Board Process

Filing unfair practice charge is protected conduct.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.17000 – Other

Attending a hearing regarding the dismissal of another employee is not protected where employee was not in the same bargaining unit and where there was no evidence that the CBA governing charging party’s working conditions was at issue in the hearing.

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

Prima facie case for retaliation is established when charging party shows; (1) the exercise of rights guaranteed by EERA; (2) employer’s knowledge of the exercise of those rights; (3) the employer took adverse action against the employee; (4) the employer acted because of the employee’s exercise of protected rights.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.07000 – Discharge; Layoffs; Constructive Discharge; Rejection During Probation

Initiation of permanent certificated employee dismissal proceedings is an adverse action.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.12000 – Employee Benefits; Insurance, Pensions, Vacations, Holiday Leave, Etc.

A District’s denial of a charging party’s personal necessity leave request docking of his pay is an adverse action.

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

Eight months between protected activity and adverse action, where there was no escalation or culminating event closer to the time of the adverse action, does not suggest nexus.

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

The District’s shifting justification for its adverse action between the time it presented a summary of allegations to the charging party and the time it submitted a post-hearing brief indicates a nexus between charging party’s protected conduct and his termination.

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

A District investigation of employee misconduct provides a reasonable basis to infer animus when it fails to attach all relevant written complaints and interview notes to the summary of allegations given to an employee when the employee had specifically requested that he be given all evidence against him, despite the District’s excuse that it did not want to overwhelm employees with too much information. A District official’s cursory interview of charging party’s students who liked charging party without including any record of these positive comments in the investigation materials provided to charging party suggests an investigation focused on corroborating complaints rather than disproving them.

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

A comment by a District official during her hearing testimony that “[a]t this point, I disbelieve most everything [charging party] says” does not demonstrate bias or animosity against charging party sufficient to constitute improper motive for taking adverse action, since the comment was made after she was involved in investigating the employee’s work conduct, and there was no evidence that she disbelieved employee when she was conducting the investigations. Hostile comments that do not bear on protected activities or a protected group are insufficient to demonstrate animus. Hostility by manager arose because she believed charging party was untruthful, not because of protected activity. A District official’s categorical declaration that allegations in a grievance over working conditions are completely false, made before thoroughly investigating the complaints, suggests improper bias, even when the grievance includes a personal accusation concerning the official’s marital fidelity. District official’s hostility toward employees who filed public complaint is demonstrated by her animus toward the attorney representing the employees. There is nothing unlawful in a manager denying accusations that he or she believes to be untrue, provided the communication does not also convey a threat or promise of benefit.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.14000 – Other/In General

District official’s hostility toward employees who filed public complaint is demonstrated by her animus toward the attorney representing the employees.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.03000 – Misconduct

A District satisfies its burden of proving it took adverse action because of a legitimate, non-discriminatory reason when the District had a long record of complaints filed against charging party, many of which predated the protected activity, and the District warned charging party multiple times prior to charging party’s protected activity that it would not tolerate his misconduct.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

Consistency is a factor lending to the credibility of students who made complaints against a charging party. Charging party’s testimony disputing student complaints raises doubts when his testimony was brief, conclusory, and only elicited during cross-examination, he made no effort to elaborate further either in re-direct examination or in his case in rebuttal, and his limited testimony gave no factual basis for disbelieving the students’ complaints.

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

Charging party’s exceptions failed to comply with PERB Regulation 32300 either by failing to refer to some part of the record, failing to state the grounds for the exception, introducing alleged facts that were not contained in the record while failing to seek to re-open the record pursuant to PERB Regulation 32410, attempting to introduce new legal claims in his exceptions (two of which had been dismissed by the Office of the General Counsel before the complaints issued in these cases), or implying matters not litigated at the administrative hearing.