Decision 2458E – Jurupa Unified School District

Obtaining assistance from a Union attorney regarding an employment issue is protected activity, as is obtaining assistance from exclusive representative regarding charging party’s performance evaluation.

Protected activity may include participating with other employees in filing a grievance, and filing and processing an individual written complaint pursuant to a resolution procedure contained in the collective bargaining agreement between the Union and the District.

Seeking and obtaining assistance from a Union attorney regarding an employment issue is protected activity, as is obtaining assistance from exclusive representative regarding charging party’s performance evaluation.

Participating in a group lawsuit to enforce alleged violations of laws regarding employment conditions is protected activity.

The District interfered with charging party’s protected rights by issuing a written communication to employees, including charging party, that criticized employees for filing a group grievance with the District’s governing board a few days earlier.

A summary of meeting memorandum given to a charging party after the District’s investigatory interview of charging party was not an adverse action because it did not accuse charging party of misconduct, did not discipline or threaten to discipline her, and there was no evidence it was placed in her personnel file, or would otherwise be used to support any future disciplinary action. The District’s removal of negative evaluations and warning letter from charging party’s personnel files did not cure those adverse actions, because it was not an honestly given retraction. The District did not remove the challenged documents until several months after it issued them, and was not made in a manner that completely nullified the coercive effects of the earlier action. Although the District notified charging party that the offending documents would be removed from District files, the District then replaced the retracted documents with a new adverse action, viz., notification of a consecutive annual evaluation. The fact that a District official stated that the investigation has revealed no evidence of a violation of policy also fails the required factor that the retraction be unambiguous and specific in nature to the coercive conduct. Moreover, these documents were removed only after charging party filed a complaint with the District over her evaluations and following discussions with union’s attorney. This fact, coupled with the fact that the District imposed a new adverse action and insisted that it engaged in no wrongdoing, suggests that the District was motivated solely by a desire to avoid further litigation over the issue, rather than by a sincere effort to retract a coercive statement or action. Consecutive annual evaluations of a permanent teacher constitute an adverse action.

The District’s refusal of contractual paid “special leave” was not an adverse action because it is not reasonable to expect that an employee will be paid by an employer to stay home and perform no work in order for the employee to feel comfortable while pursuing her legal claims against the employer.

The District’s abrupt order to charging party in the middle of her instructional period to attend an investigatory meeting regarding students’ complaints, and an exaggerated response to a routine request over a simple issue, support a finding of nexus.

The District’s abrupt order to charging party in the middle of her instructional period to attend an investigatory meeting regarding students’ complaints, and an exaggerated response to a routine request over a simple issue, support a finding of nexus.

Discriminatory motivation was evidenced by a District issuing a written communication to employees, including charging party, that criticized employees for filing a group grievance with the District’s governing board a few days earlier.

Discriminatory motivation may be shown when District official’s evaluation comments indicate similar performance shortcomings both before and after she engaged in protected activity, yet the ratings that the official gave her dropped precipitously after her protected conduct. It is reasonable to infer that the District would not have ordered charging party to participate in consecutive performance evaluations in the absence of the District official’s hostility towards charging party’s protected conduct. Removing an evaluation from charging party’s file after investigating her complaint did not retroactively diminish its substantial compliance with Education Code section 44664 for that school year.

The District’s alleged failure to report student accusations against charging party to Child Protective Services and/or the sheriff’s office does not logically lead to the conclusion that the investigation was a subterfuge for retaliation. Common sense and the District’s practice dictate that student complaints of mistreatment at the hands of teachers require investigation. That the District may have also had a duty to report the complaints to Child Protective Services does not vitiate the District’s legitimate non-discriminatory reason to interview charging party about the complaints. Exaggerated accusations of “insubordination” and bad attitude have been found to be pretextual where they were factually inaccurate and not adequately explained by other evidence. 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 making process.

Exaggerated accusations of “insubordination” and bad attitude have been found to be pretextual where they were factually inaccurate and not adequately explained by other evidence.

The District’s removal of negative evaluations and warning letter from charging party’s personnel files did not cure those adverse actions, because it was not an honestly given retraction. The District did not remove the challenged documents until several months after it issued them, and was not made in a manner that completely nullified the coercive effects of the earlier action. Although the District notified charging party that the offending documents would be removed from District files, the District then replaced the retracted documents with a new adverse action, viz., notification of a consecutive annual evaluation. The fact that a District official stated that the investigation has revealed no evidence of a violation of policy also fails the required factor that the retraction be unambiguous and specific in nature to the coercive conduct. Moreover, these documents were removed only after charging party filed a complaint with the District over her evaluations and following discussions with the union’s attorney. This fact, coupled with the fact that the District imposed a new adverse action and insisted that it engaged in no wrongdoing, suggests that the District was motivated solely by a desire to avoid further litigation over the issue, rather than by a sincere effort to retract a coercive statement or action.

An order to remedy employer retaliation directing the employer to generally cease and desist from retaliating against employees for engaging in protected activities is not improper where the text of the decision and Order sufficiently identifies the District’s unlawful actions, which the District may not repeat in the future.

There is no basis for a claim for back pay when there is no evidence that the District’s actions caused charging party to be constructively discharged.

An award of attorneys’ fees is not appropriate when charging party has presented no evidence that the District’s conduct and defense of this case was without arguable merit or that it engaged in frivolous, vexatious, dilatory or bad faith conduct.

Regardless of the specificity of the remedy, the text of the proposed decision and order sufficiently identifies the District’s unlawful actions, which the District may not repeat in the future.

It is reasonable to infer that the District would not have ordered charging party to participate in consecutive performance evaluations in the absence of the District official’s hostility towards charging party’s protected conduct. Removing an evaluation from charging party’s file after investigating her complaint did not retroactively diminish its substantial compliance with Education Code section 44664 for that school year.