Decision 2538E – San Diego Unified School District

LA-CE-6095-E

Decision Date: September 7, 2017

Decision Type: PERB Decision

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Perc Vol: 42
Perc Index: 41

Decision Headnotes

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

Our cases concerning adverse action, beginning with Palo Verde Unified School District (1988) PERB Decision No. 689, emphasize an objective test in determining whether a particular action was adverse to employment interests, i.e., whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the person’s employment.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

A threatened adverse action is a separate potential unfair practice from the completed action. For a threat to be actionable as an adverse action, it must give the employee unequivocal notice that the employer has made a firm decision to take the threatened action.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities

Employer’s initiation of the contractual reassignment process by giving notice that it would be seeking to reassign employee due to repeated complaints about employee’s teaching methodology was sufficient to establish an adverse action. Even though notice did not threaten employee with loss of her job or a reduction in pay, it would be readily seen by a similarly-situated employee as an accusation of professional incompetence requiring a formal defense or, at minimum, likely affecting future employment decisions.

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

Charging party’s subsequent application for summer school, having previously been informed she was ineligible, did not revive the statute of limitations.

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

Board rejected claim that statute of limitations did not begin to run due to respondent’s fraudulent concealment of certain facts, where charging party’s allegations showed no concealment.

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

Charging party’s subsequent application for summer school, having previously been informed she was ineligible, did not revive the statute of limitations.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.06000 – Statutory and Equitable Tolling

Under EERA section 3541.5, subdivision (a)(2), the six-month statute of limitations shall be tolled during the time it takes to exhaust the grievance machinery, provided it exists, ends in binding arbitration and covers the matter at issue in the unfair practice charge.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.06000 – Statutory and Equitable Tolling

The statute of limitations will be tolled only if the grievance raises the same issues that have been raised in the unfair practice charge. The respondent may be placed on notice of the issues through the allegations in the grievance or through correspondence related to the grievance.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.06000 – Statutory and Equitable Tolling

The statute of limitations is tolled only for the period from when the issue was raised in the grievance process until the grievance process concluded. Where issue was raised 30 days before the grievance process concluded, employer’s actions taken 6 months and 30 days before the charge was filed would be considered timely.