Jurupa Unified School District (PERB 2450E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFEREY L. NORMAN,
Charging Party,
v.
JURUPA UNIFIED SCHOOL DISTRICT,
Res ondent.
Case Nos. LA-CE-5593-E;
LA-CE-5744-E
PERB Decision No. 2450
August 31, 2015
Appearances: Jefferey L. Norman, on his own behalf; Fagen, Friedman & Fulfrost
by
Christopher D. Keeler and Kerrie Taylor, Attorneys, for Jurupa Unified School District.
Before Huguenin, Winslow, and Banks, Members.
DECISION
WINSLOW, Member: These cases come before the Public Employment Relations
Board (PERB or Board) on exceptions filed
by
Jefferey L. Norman (Norman) and the Jurupa
Unified School District (District) to the proposed decision (attached)
of
a PERB administrative
law judge (ALJ).1 The complaints allege respectively that the District violated
section 3543.5(a)
of
the Educational Employment Relations Act (EERA)2
by
discriminating
and retaliating against Norman because
of
his protected activity when it denied him personal
necessity leave (Case No. LA-CE-5593-E) and terminated his employment (Case
No. LA-CE-5744-E).
1
By agreement
of
the parties, the ALJ heard evidence and issued his proposed decision
simultaneously on two cases: PERB Case Nos. LA-CE-5593-E and LA-CE-5744-E. The
instant decision addresses both cases as well.
2 BERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

The ALJ dismissed both complaints. In Case No. LA-CE-5593-E, he concluded that
Norman failed to establish that the District had knowledge
of
his protected activity. In Case
No. LA-CE-5744-E, the ALJ determined that Norman had established a prima facie case for
retaliation, but the District had proven its defense, i.e., that it both had and acted because
of
an
alternative non-discriminatory reason in terminating Norman's employment. Both Norman
and the District filed timely exceptions to the proposed decision.
The Board itself has reviewed the record in this matter, including the pleadings, the
hearing record, the proposed decision, the parties' exceptions and their respective responses.
We conclude that the ALJ's findings
of
fact are supported by the record, and we adopt them as
the findings
of
the Board itself. With two exceptions, we also conclude that the ALJ' s
conclusions
oflaw
are well-reasoned and consistent with applicable law, and therefore we
hereby adopt the ALJ's proposed decision as the decision
of
the Board itself, except as noted
below and subject to the discussion
of
issues raised by the exceptions.
FACTUAL SUMMARY
Norman began his employment with the District as a physical education teacher in
2001, and the record includes no evidence
of
performance problems for the first several years
of
his career. In 2005, he was evaluated as "Exceeds District Standards" which was the
highest possible rating. However, in 2007, the District received complaints from other staff
members about Norman, including allegations that Norman had angrily confronted other
employees. The District investigated these complaints, and in February 2007 presented him
with a written summary
of
allegations, but without supporting documents and gave him an
opportunity to respond. Norman did so, objecting to the lack
of
detail and the lack
of
documents supporting the allegations. He received a second disciplinary letter in March 2007,
to which he registered the same objection.
2

Norman was reassigned to teach math for the 2007-2008 school year. In April 2009,
Norman was again presented with a summary
of
allegations, this time concerning student
complaints that
he
yelled at students and appeared angry with them.
	He
was also accused
of
throwing a student's belongings out
of
his classroom while yelling at the student "get out!"
Norman denied the allegations and again objected that the allegations were not specific enough
to prepare a response to. He admitted at the time, however, to accessing student's cumulative
files to obtain information about his accusers.
In
May
2009, the District, through its Assistant Superintendent
of
Human Resources,
Tamara Elzig (Elzig), issued Norman a notice
of
unsatisfactory service based on the 2007
conduct, student complaints during the 2008-2009 school year and his unauthorized access
of
student cumulative files. Norman was directed to correct his conduct
by
controlling his anger
and treating students professionally, among other things.
During the following school year, 2009-2010, the District presented Norman with four
disciplinary documents, three
of
which concerned student complaints that alleged a similar
pattern
of
conduct as had allegedly occurred the previous year: Norman became angry in class,
yelled at his students, and made them stand in the comer as a means
of
discipline, called one
student "stupid ass" during class, refused to help a student seeking assistance, and refused to
allow another student to use the restroom. Norman denied all
of
these allegations.
In May 2010, Luz Mendez (Mendez), the school principal, issued Norman a
performance evaluation with an overall ranking of''Needs hnprovement" based on the
concerns articulated by students and parents concerning Norman's alleged disrespectful
treatment
of
students.
3

The "Master Grievance" and Elzig's Response
In June 2010, an group
of
District employees, including Norman, anonymously filed a
document with the District and several state and federal agencies, including the local district
attorney, that described
21
complaints about working conditions in the District, including
allegations about its discipline policies, its handling
of
employee personnel information and
rest break policies, etc. This document, which came to be known as the "Master Grievance"
also alleged that Elzig retaliated against male employees who did not submit to her allegedly
sexually suggestive conduct or words. This "grievance" did not reference any alleged
violation
of
the collective bargaining agreement (CBA) between the District and Norman's
exclusive bargaining representative, National Education Association-Jurupa (NEA-J), but it did
request a state investigation and a public hearing before the District's governing board.
Elzig responded to this "grievance" on June 25, 2010,
by
sending an e-mail to all
District employees, categorically stating that "the issues outlined in the [Master Grievance]
complaint are false" and specifically denying that she had ever participated in inappropriate
"sexually suggestive conduct."
At the time
of
her response, Elzig did not know that Norman was part
of
the group
of
employees who had filed the Master Grievance, but she came to believe that he was a
participant sometime during the Fall 2010, when Norman and 17 other employees filed a
petition for a writ
of
mandate in Superior Court. She correctly assumed that his name on the
court pleadings indicated that he was part
of
the Master Grievance group.
Norman's Request for Personal Necessity Leave
On May 17, 2011; Norman notified the District that he was taking personal necessity
leave that day. The CBA between the District and NEA-J specifies that personal necessity
leave should be requested at least two days in advance, except in emergencies or other
4

compelling personal reasons.
The
District does not normally require an explanation for the
leave, unless it has reason to believe the leave is being abused.
Norman took personal necessity leave
on
this day
in
order to attend a dismissal hearing
for a classified employee (Braden hearing), where Elzig saw him. Despite the fact that
classified employees are not represented
by
NEA-J, Norman testified that he intended to gather
information at the Braden hearing regarding
how "our collective bargaining agreement
in
respect to how it was administered
by
Tammy Elzig." (Proposed Dec., p. 20.)
A few days later, Norman filled out a form requesting to use personal necessity leave
for his
May
17, 2011 absence.
	He
did not state any reason for the leave request. Elzig denied
Norman's
request, because she believed the Braden hearing did
not
qualify for personal
necessity leave under the CBA, and because Norman did not submit the required request form
until after
he took the leave. Norman's pay
was docked for the day.
On August 3, 2011, Norman filed unfair practice charge No. LA-CE-5593-E, alleging
that the District had denied him leave and docked his pay in retaliation for his involvement
in
the "Master Grievance" commencing in June 2010.
Discipline
in
2011-2012
More student complaints against Norman came to the District's attention during
Fall 2011.3 These complaints alleged that he had refused to assist a student with his math, and
that he had called another student "retarded" when that student incorrectly answered a math
problem. The District investigated these complaints, as well as another one concerning
Norman's computer usage. On November 2, 2011, Norman was placed on administrative
leave while a computer forensics expert conducted an investigation:. The expert concluded on
3 There is no evidence in the record of complaints or disciplinary action against Norman
during the 2010-2011 school year.
5

December 4, 2011, that
Norman's
District-issued computer contained downloaded images
of
nude women which originated from his cell phone.
Meanwhile, Elzig interviewed between 15 and 20
of
Norman's students, asking them at
first only general questions and following up with those who raised concerns about Norman's
behavior.
If
a student indicated that he
or
she liked Norman, Elzig asked no further questions
and produced no record
of
the interview. The students who had negative things to say about
Norman were interviewed
in
greater detail. As a result
of
this investigation, Elzig produced a
summary
of
allegations which she presented to Norman
on
November 10, 2011. The student
complaints included in this summary alleged that he yelled at students during class and
described some students as "lazy" "hot" and "sexy beast." Accor~ing to the summary,
he
threw a student's belongings out
of
the classroom; left students unsupervised, refused to assist
students, and inappropriately stared at female students' bodies. Some, but not all
of
these
allegations were supported
by
documentary evidence such as written student statements and
school administrators' notes
of
student interviews.
Dismissal Proceedings
By
February 16, 2012, the District had prepared and presented to Norman a draft
"Notice
of
Intent to Dismiss and Immediately Suspend" (Draft Notice).4 The Draft Notice was
over 300 pages and included all
of
Norman's prior discipline, evaluations from 2005 and 2010
and the various summaries
of
allegation he had received. Student statements and
administrators' notes not previously shown to Norman were attached to the Draft Notice.
4 This document is the statutorily required initial step in dismissing a permanent
certificated employee. (Ed. Code, § 44934.)
6

Although the District gave Norman an opportunity to appear at a Skelly hearing,5 he did
not attend. Nor did he respond in writing to the Draft Notice. In April 2012, the District's
governing board approved the Notice
of
Intent to Dismiss (Dismissal Notice). Norman
requested a hearing before a Commission on Professional Competence (CPC) and that hearing
was held in December 2012 to determine whether good cause existed for Norman's dismissal.
Based on the testimony
of
13
students who were in Norman's class between 2009 and
2012, and the computer forensic expert, the CPC upheld Norman's dismissal by a written
decision on January 18, 2013.
PROPOSED DECISION
Issues Common to Both Cases
The ALJ determined that Norman engaged in protected conduct when he participated in
the Master Grievance, which PERB had previously determined to be protected conduct,
because it was a collective attempt to address workplace concerns. (Jurupa Unified School
District (2012) PERB Decision No. 2283.) Norman also engaged in protected conduct when
he filed the unfair practice charges on August 3, 2011, and on October 1, 2012.
,Elzig knew ofNonnan'sinvolvement in the Master Grievance by the Fall 2010, and
was aware
of
the unfair practice charges, since she was listed as a recipient
of
the District's
response to those charges. Both the denial
of
leave and dismissal from employment were
adverse actions.
Case No. LA-CE-5593-E: Denial
of
Leave
The ALJ determined that Norman's attendance at the Braden hearing was not protected
conduct, because there was no evidence that the CBA governing Norman's working conditions
5 The term "Skelly hearing" refers to a pre-disciplinary hearing required by Skelly
v.
State Personnel Board (1975) 15 Cal.3d 194 that provides a public employee an opportunity to
rebut charges against him or her and present any mitigating circumstances to the employer
before discipline is imposed that would deprive the employee of any vested property right.
7

was at issue in this hearing regarding dismissal of a classified employee, who was not covered
by the NEA-J contract. Also, because there was no evidence that Norman told Elzig or anyone
else in the District why he wanted to attend the Braden hearing, the ALJ concluded that
District was not on notice that Norman intended to communicate with fellow employees about
what he may have learned about Elzig's interpretation of any CBA provisions.
The ALJ also rejected Norman's implied assertion that the very act ofrequesting
• personal necessity leave, which is provided for in the CBA, was protected activity. Based on
PERB precedent, the ALJ concluded that the request was not a logical extension of group
activities or an attempt to enforce the CBA, and therefore, was not protected .
. Despite concluding that Norman's request for personal necessity leave and his
attendance at the Braden hearing were not protected activities, the ALJ considered whether
there was a nexus between Norman's participation in the Master Grievance and the District's
denying him leave approximately eight months after learning of his participation in the Master
Grievance. He concluded that the passage of time does not support a finding of retaliation, nor
was there any circumstantial evidence of animus, such as disparate treatment of Norman or a
departure from existing policy or procedures in denying the leave and docking his pay.
For these reasons, the ALJ dismissed the complaint in Case No. LA-CE-5593-E.
Case No. LA-CE-5744-E: Termination From Employment
By the time the District initiated proceedings to terminate Norman's employment in
February 2012, he had engaged in two acts of protected conduct-participating in the "Master
Grievance" beginning in June 2010, and filing and pursuing the unfair practice charge
No. LA-CE-5593-E in August 2011 over denial of personal necessity leave. Noting that
approximately six months had passed between the most recent protected act in August 2011,
and the commencement oftennination proceedings in February 2012, the ALJ concluded that
8

the timing did not suggest a nexus between the protected conduct and the adverse action.
He
then considered other circumstantial evidence to ascertain nexus.
The ALJ found circumstantial evidence
of
nexus, based on the apparent bias
of
Elzig,
who assisted in the District's investigation
of
student complaints against Norman. He
concluded that Elzig exhibited bias against Norman in two ways. During cross-examination at
the administrative hearing Elzig stated: "at this point, I disbelieve most everything Norman
says." She did not elaborate on what she meant. Without further explanation about the basis
for her distrust, the ALJ found that her testimony cast doubt about whether her investigation
of
Norman's conduct was truly objective.
The ALJ found additional support for his conclusion regarding Elzig's animus in
Elzig's June 25, 2010, e-mail about the Master Grievance also gave the appearance
of
bias. In
the e-mail, sent just days after the Master Grievance was distributed, Elzig unequivocally said
"that the issues outlined in the [Master Grievance] complaint are completely false." She also
suggested that the submission
of
the Master Grievance was motivated by a personal dispute
between her and Michael Rodriguez, a governing board member. According to the ALJ,
Elzig' s comments, made before any thorough investigation into the
21
enumerated complaints
in the Master Grievance could have reasonably been completed, suggested bias.
The ALJ also found evidence
of
nexus in the way the District investigated the
allegations against Norman and in its handling
of
evidence supporting his dismissal.
According to the ALJ, the District failed to present Norman with all
of
the materials that
supported the District's conclusion he had engaged in wrongdoing when it initially presented
him with the November 10, 2011, summary
of
allegations which formed the basis for its
decision to initiate dismissal proceedings against him. The complete evidence was not given to
Nonnan until after the District's investigation ended and it had decided to proceed with
9

dismissal. None
of
Norman's prior discipline
or
summaries
of
allegations included student
statements or notes taken
by
school administrators who interviewed the students.
Additionally, Elzig's student interviews were not sufficiently comprehensive, according
to the ALJ. Because Elzig, who interviewed between 15 and 20
of
Norman's students, only
asked detailed questions
if
the students informed her
of
complaints or concerns with Norman,
and did not ask students who spoke favorably
of
Norman to confirm or deny other students'
complaints, the ALJ concluded that she was only interested in corroborating, not disproving
students' complaints. In addition, Elzig admitted that she did not include any record
of
positive student comments about Norman, such as that he was "cool" or that they liked him.
This selective reporting
of
student comments demonstrated to the ALJ bias in the investigation
which artificially stopped pursuing lines
of
questioning that may have benefited Norman.
The ALJ found that Elzig's failure to thoroughly interview students in this case only
exacerbated the other concerns regarding Elzig's animus toward Norman, i.e., her distrust
of
his veracity and her e-mail demonstrating bias against those who complain about District
practices. Considering the record as a whole, the ALJ found that Norman established a causal
connection,
or
nexus, between his protected activities and the Dismissal Notice sufficient to
establish shift the burden to the District to show that it terminated Norman for non-
discriminatory reasons.
District's Reasons For Dismissing Norman
Noting that in cases where an adverse action is apparently motivated
by both protected
and unprotected conduct, the issue is whether the adverse action would have occurred "but for"
the protected conduct, the ALJ considered the District's proffered non-discriminatory reasons
for dismissing Norman. Finding in the District's favor, the ALJ based his conclusion on
several facts.
10

The ALJ noted that there is no evidence that other District administrators Principal
Mendez, Vice Principal Nanette Prince-Eggeter (Prince-Eggeter) who participated in the
investigation of student complaints or the students themselves knew of Norman's protected
activity or had any reason to retaliate against him. Elzig's involvement with the Dismissal
Notice was limited. For example, Elzig's interview notes comprised only two of the more than
60 exhibits supporting the charges against Norman. Most of the actual content of the charges
raised in the dismissal notice were based on the interviews conducted and statements collected
by Prince-Eggeter, Mendez, or other staff. Only six of the 38 charges levied against Norman
in the Dismissal Notice relied solely on Elzig's notes. Of those six charges, most were
corroborated by student statements or testimony. The appearance of bias or retaliatory motive
by Elzig notwithstanding, the ALJ found that the Dismissal Notice contained an accurate
account of student complaints made against Norman. Therefore, the question, as viewed by
the ALJ was whether those complaints provided a legitimate non-retaliatory reason for
Norman's dismissal.
In answering that question, the ALJ noted that the District had a long record of
complaints filed against Norman, many of which predated the protected activity alleged in the
two PERB complaints. The District had warned Norman multiple times from 2007 through
2010 that it would not tolerate his confrontational nature with others, yelling, and inappropriate
comments and contact with students. Those warnings included multiple conferences,
memoranda, a letter of concern, a notice of unprofessional conduct, and a performance
evaluation. All these documents issued before the District learned of Norman's participation
in the Master Grievance.
Despite these warnings, student complaints about Norman's conduct during the 2011-
2012 school year continued, including allegations that he yelled at students and called them
11

derogatory names in class, that he inappropriately stared at female students' bodies, and that he
made students feel uncomfortable in class. All of these claims were supported by written
statements.
The ALJ found that the complaints made against Norman were not overblown or
supported only by managers. Rather, 13 students credibly testified with remarkable
consistency about their complaints with Norman's teaching performance between the 2008-
2009 and the 2011-2012 school years. Even though the student witnesses came from four
different academic years taught by Norman, all 13 students testified that Norman appeared
angry in class and frequently yelled at them. Ten students testified that Norman stared
inappropriately at female students' bodies. Eight of those students testified about the
inappropriate names Norman used for students. Two testified that Norman threw their
belongings out of his classroom. Their testimony largely mirrored the allegations made in the
Dismissal Notice and was further corroborated by other District employees, includingnon-
management employees.
In addition to these complaints, the accusation that Norman downloaded nude female
images to his District computer in violation of District policy was supported by a computer
forensics report and a forensics examiner who testified in the CPC hearing. ·
In light of these facts, the ALJ concluded that the District had issued the Dismissal
Notice because of numerous credible complaints about Norman's treatment of students and
other misconduct, and not his protected activity. The District had therefore met its burden of
rebutting the prima facie case, and the ALJ dismissed the complaint in Case
No. LA-CE-5744-E.
12

NORMAN'S EXCEPTIONS
In his exceptions to the ALJ's proposed decision, Norman (among other exceptions)
challenges the ALJ's finding that Elzig had limited involvement in the drafting of Norman's
Dismissal Notice. Norman reiterates his allegation that no student complaints about his
conduct during the 2011-2012 school years were provided to him, thereby making it
impossible to correct any deficiencies noted in the student complaints. He accuses the District
of targeting him by manufacturing derogatory information about him and placing it in a secret
file (specifically, a "site file" and a "working file"), failing to institute set standards for a
teacher to respond to derogatory information, and failing to solicit Norman's response
contemporaneously with student complaints against him.
DISTRICT'S RESPONSE AND CROSS-EXCEPTIONS
In addition to refuting the substance of Norman's exceptions, the District urges that
they be rejected in their entirety, because they fail to comply with PERB Regulation 32300.6
Specifically, the District avers that Norman's exceptions attempt to raise new legal claims, and
reassert claims that were dismissed by PERB 's Office of the General Counsel prior to the
complaints in this case being issued. The District also asserts that Norman's exceptions fail to
identify any facts that support a reversal of the ALJ' s determination and fail to identify the
specific procedure, fact, law or rationale to which exception is taken.
The District cross-excepts to the ALJ's conclusion that Norman established a nexus
between his protected activity and the District's termination of his employment. Specifically,
the District requests that the Board reverse this finding and conclusion of the ALJ, because the
evidence does not show that: (1) Elzig was improperly biased against Norman when she
conducted her 2011 investigation; (2) the District improperly handled evidence against
6 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
13

Norman; or (3) Elzig's interview techniques were flawed. We consider these exceptions in
greater detail infra.
DISCUSSION
Norman's Exceptions
We agree with the District's position that Norman's exceptions should be rejected in
their entirety for failure to comply with PERB Regulation 32300, which requires the excepting
party to include: (1) a statement of the specific issues of procedure, facts, law or rationale to
which each exception is taken; (2) identify the page or part of the decision to which each
exception is taken; (3) designate the portions of the record relied upon for each exception; and
(4) state the grounds for each exception. Exceptions are limited to matters contained in the
record of the case. (PERB Reg. 32300(b).)
Compliance with the regulation is required to afford the respondent and the Board an
adequate opportunity to address the issues raised. (Temecula Valley Unified School District
(1990) PERB Decision No. 836, pp. 2-3.) Failure to comply with PERB Regulation 32300 can
result in dismissal of the matter without review of the merits of the excepting party's claims.
(See California State Employees Association (0 'Connell) (1989) PERB Decision No. 726-H.
We do so in this case because Norman's exceptions fail to comply with PERB
Regulation 32300 in almost every respect. He filed 47 exceptions. Only eight of these
exceptions refer to some part of the record, and these citations appear to be to the transcript in
the dismissal case before the CPC.7 None of the exceptions state the grounds for the
exception.
Approximately 24 of Norman's exceptions purport to introduce alleged facts that were
not contained in the record. He did not seek to re-open the record pursuant to PERB
7 The parties agreed that the record in the CPC case could be used as evidence in the
administrative hearing before PERB.
14

Regulation 32410. He also attempted 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. Another exception implies that the District violated his Weingarten rights8, a
matter not litigated at the administrative hearing.
For all of these reasons, we reject Norman's exceptions and do not consider them.
District's Exceptions
Before considering the merits of the District's exceptions, we briefly review the
elements of a prima facie case of retaliation most relevant to those exceptions.
To establish a prima facie case ofretaliation in violation of EERA section 3543.5(a),
the charging party must show that: ( 1) the employee exercised rights guaranteed by EERA;
(2) the employer had knowledge of the employee's exercise of those rights; (3) the employer
took action against or adverse to the interest of the employee; and (4) the employer acted
because of the employee's exercise of the guaranteed rights. (Novato Unified School District
(1982) PERB Decision No. 210 (Novato.) "Unlawful motive is the specific nexus required in
the establishment of a prima facie case." (Trustees of the California State University v. Public
Employment Relations Board (1992) 6 Cal.App.4th 1107, 1124.)
Once the charging party has established a prima facie case, the burden shifts to the
respondent to demonstrate that it had and was motivated by alternative, non-discriminatory
reasons in taking adverse action. (Palo Verde Unified School District (2013) PERB Decision
No. 2337, p. 23 (Palo Verde).)9
8 In National Labor Relations Board v. J. Weingarten, Inc. (1975) 420 U.S. 251
(Weingarten), the U.S. Supreme Court affirmed the decision of the National Labor Relations
Board (NLRB) to afford employees the right, upon request, to union representation during
investigatory interviews. These rights have become known as the Weingarten rights.
9 Palo Verde, supra, PERB Decision No. 2337 issued after the proposed decision in this
case. Nevertheless, the record in this case demonstrates that the District had, and acted
15

As the ALJ found and as the District concedes, Norman engaged in protected activity
when he participated in the Master Grievance and when he filed and pursued unfair practice
charges. 10 (Sacramento City Unified School District (2010) PERB Decision No. 2129, pp. 6-7;
Golden Gate Bridge Highway & Transportation District (2011) PERB Decision No. 2209-M.)
There is also no dispute that the District knew of Norman's protected activity or that he
suffered adverse action.
The dispute lies, from the District's viewpoint, in whether Norman presented evidence
sufficient to demonstrate the nexus between his protected activity and the adverse action. In
other words, the District asserts that the burden should have never shifted to require its
because of an alternative, non-discriminatory reason for dismissing Norman, namely, his
treatment of students that occurred both before and after he engaged in protected conduct.
10 However, relying on PERB precedent, the ALJ ruled that Norman's invocation of his
contractual entitlement to personal necessity leave was not protected. Although this ruling was
not specifically excepted to, we decline to adopt this conclusion. First, as the Board recently
noted in Jurupa Unified School District (2015) PERB Decision No. 2420, pp. 20-21 (Gillotte),
there is persuasive authority from the United States Supreme Court and from the National
Labor Relations Board (NLRB) calling into question PERB precedent on which the ALJ relied,
viz. Marin County Law Library (2004) PERB Decision No. 1655-M; State of California
(Department of Corrections & Rehabilitation) (2008) PERB Decision No. 1961-S; State of
California (Department of Forestry & Fire Protection) (2004) PERB Decision No. 1690-S.
However, we save for another day consideration of whether our precedent should be
overturned in light of various private sector cases such as NLRB v. City Disposal Systems, Inc.
(1984) 465 U.S. 822; Interboro Contractors, Inc. (1966) 157 NLRB 1295, and Rogers
Corporation (2005) 344 NLRB 504. As explained earlier, we do not consider Norman's
exceptions and even if we were to do so, he did not except to the ALJ's conclusion that his
seeking a collectively bargained benefit was not protected. He asserted that his attendance at
the Braden hearing was protected.
Second, NEA-J joined in Norman's attempt to get paid for the personal necessity day,
which would theoretically bring Norman's request into the sphere of protected conduct. (The
Regents of the University of California (1995) PERB Decision No. 1087-H, Proposed Dec.,
p. 10; Los Angeles Unified School District (1992) PERB Decision No. 957, Proposed Dec.,
p. 19.) NEA-J's involvement on Norman's behalf occurred after Elzig denied his leave request
on May 20, 2011, so we leave undisturbed the ALJ' s findings and conclusions regarding the
timing between protected conduct and adverse actions.
16

presentation
ofits
affirmative defense. Because evidence
of
unlawful motive rarely comes in
the form
of
direct evidence, PERB considers any
of
several factors to establish
by
circumstantial evidence an inference
of
unlawful motive.
In addition to the timing
of
the employer's adverse action in relation to the employee's
protected activity
11
one or more
of
the following additional factors must also be present:
(1) the employer's disparate treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); (2) the employer's departure from
established procedures and standards when dealing with the employee (Santa Clara Unified
School District (1979) PERB Decision No. 104); (3) the employer's inconsistent or
contradictory justifications for its actions (State
of
California (Department
of
Parks and
Recreation) (1983) PERB Decision No. 328-S); ( 4) the employer's cursory investigation
of
the
employee's misconduct (City
of
Torrance (2008) PERB Decision No. 1971-M; Coast
Community College District (2003) PERB Decision No. 1560); (5) the employer's failure to
offer the employee justification at the time it took action (Oakland Unified School District
(2003) PERB Decision No. 1529) or the offering
of
exaggerated, vague, or ambiguous reasons
(McFarland Unified School District (1990) PERB Decision No. 786); (6) employer animosity
towards union activists and employees engaged in protected conduct (Jurupa Community
Services District (2007) PERB Decision No. 1920-M (Jurupa); Jurupa Unified School District
· (2012) PERB Decision No. 2283, pp. 9-10; Cupertino Union Elementary School District
(1986) PERB Decision No. 572); or (7) any other facts that might demonstrate the employer's
tJ The proximity in time between the protected activity and the adverse action goes to
the strength of the inference of unlawful motive, but is not determinative by itself. ( California
Teachers Association, Solano Community College Chapter, CTAINEA (Tsai) (2010) PERB
Decision No. 2096.)
17

unlawful motive (North Sacramento School District (1982) PERB Decision No. 264; Novato,
supra, PERB Decision No. 210).
In this case, the ALJ concluded that there was a nexus between Norman's protected
activities and his dismissal based on three of the above factors: 	(1) employer animosity toward
union activists and employees engaged in protected conduct; (2) a cursory investigation of the
employee's misconduct; and (3) the employer's inconsistent or contradictory justification for
its conduct.
Elzig's Bias
According to the ALJ, Elzig's bias or animosity was demonstrated by her comment on
cross-examination by Norman's attorney in the administrative hearing: "At this point, I
disbelieve most everything Norman says." (Reporter's Transcript Vol. II, p. 170.) This called
into question whether her investigation of Norman, conducted two years earlier, was truly
objective, according to the ALJ.
The District excepts generally to the conclusion that Elzig was biased, specifically
asserting that her testimony referred to that point in time, i.e., well after she was involved in
investigating Norman's work conduct, and there was no evidence that she disbelieved Norman
when she was conducting the investigations. We agree with the District's contention.12
Elzig's comment at the PERB administrative hearing does not tend to show that she harbored
an improper motive when she investigated student complaints about Norman or when she
participated in the District's dismissal process.
Moreover, Elzig's statement that she disbelieved Norman does not, by itself, indicate
that her skepticism arose because of his protected conduct. As we found in Gillotte, supra,
12 Member Huguenin would affirm the ALJ's reliance on the witness' comment as
evidencing her continued animosity grounded in Norman's ongoing protected conduct.
18

PERB Decision No. 2420, p. 24, fn. 18, hostile comments that do not bear on protected
activities or a protected group are insufficient to demonstrate animus. (See also Garden Grove
Unified School District (2009) PERB Decision No. 2086; Escondido Union Elementary School
District (2009) PERB Decision No. 2019 [hostile relationship between employee and
supervisor,
by
itself, does not create inference
of
unlawful motivation].) In sum, it is apparent
that Elzig had a bias against Norman because she believed he was untruthful, but there is no
evidence that that particular bias arose or was acted upon because he engaged in protected
activity.
Elzig's bias was also shown, according to the ALJ, by her June 25, 2010, e-mail
distributed to all staff in response the Master Grievance.
13
Because she suggested the Master
Grievance was actually motivated
by
a personal qispute she had with a member
of
the
District's governing board, and because she categorically declared that "the issues outlined in
the [Master Grievance] complaint are completely false" before she had a chance to thoroughly
investigate the complaints encompassed in the Master Grievance, the ALJ concluded that
Elzig' s response suggested bias.
13
After recounting an incident four years earlier in which a member
of
the District's
governing board allegedly threatened to "break [her] down publicly'' and noting that
Richard Ackerman (Ackerman), an attorney who represented the school board member, has
been retained
by
employees who have "employment issues," Elzig continues in her June 25,
2010 e-mail:
On Monday, June 21, 2010, Mr. Ackerman issued an anonymous public complaint
centered on personnel practices. Many
of
you have contacted me personally after reading this
widely-distributed, anonymous complaint and hearing the vicious rumors about me
....
I first
want to assure you that the issues outlined in the complaint are false. 	Second, while none ofus
should have to address our personal lives at work, I willingly put mine before you to dispel any
rumors you may have heard. Bill and I have been married for eleven years. I have enjoyed
every minute
of
the years we have shared
....
I have never committed adultery. I have never
participated in inappropriate "sexually suggestive conduct" at work or in my personal life
....
It saddens me that these individuals have chosen to attack me on such a personal level.
19

The
District excepts to
this
conclusion, and urges that Elzig's e-mail must be read
solely as an indignant response to accusations that she was unfaithful to her husband and
sexually harassed male employees.
	It
is certainly that, and 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. (Rio Hondo Community College District
(1980) PERB Decision No. 128.) But that does not resolve the question
of
whether Elzig's
communication
in
this context could reasonably support an inference that she harbored animus
against those who participated
in
the Master Grievance.
We reject the District's attempt to parse Elzig's response as only a benign and
understandable defense
of
her honor. The ALJ correctly detennined that
her
categorical denial
("I first want to assure you that the issues outlined
in
the complaint are false.") was not limited
to the personal accusation concerning her marital fidelity, but encompassed the Master
Grievance in general. It is in the sentence that follows the above-quoted denial that Elzig
addressed "rumors" about her marriage and alleged "sexually suggestive conduct." The
Master Grievance contained 21 different complaints about working conditions and District
personnel practices. One
of
these complaints alleged that Elzig retaliated against male
employees who did not submit to Elzig's purported "sexually suggestive conduct." There was
no accusation in the Master Grievance that Elzig had committed adultery.
The ALJ reasonably concluded that Elzig's June 25, 2010, e-mail suggested her bias
against those who were behind the Master Grievance based
on the fact that her categorical
denial came before she could have investigated the various complaints and because she linked
the attorney who filed the Master Grievance with her nemesis on the District's governing
board, thereby suggesting that the grievance was motivated by a personal dispute between her
and the board member, rather than by legitimate workplace complaints. It is reasonable to
20

infer that Elzig was personally angered
by
the Master Grievance and that she would therefore
harbor hostility towards individuals who she perceived to be responsible for it when she
learned their identity. (Jurupa, supra, PERB Decision No. 1920-M, Proposed Dec., pp. 15-16
[expressions
of
personal anger
in
response to protected activity evidence
of
animus].)
14
The
fact that Elzig did not learn that Norman was involved in the Master Grievance group until
approximately three months after she wrote the June 25, 2010, e-mail does not diminish the
fact that the e-mail itself demonstrates her hostility to anyone who was part
of
the group,
regardless
of
when she learned
of
their involvement.
We note that this finding simply shifts the burden
of
proof to the District to show that it
would have taken the action even in the absence
of
Norman's protected activity. The District
has amply met its defensive burden in this case in showing that it had a non-discriminatory
reason for dismissing Norman and acted because
of
that reason, i.e., Norman's repeated
misconduct.
The District's Investigation
of
Norman
The District also excepts to the ALJ's conclusion that its investigation techniques with
respect to student complaints about Norman's conduct and the way it handled evidence against
him suggested animus. The ALJ based this conclusion on two findings: (1) Elzig failed to
provide all
of
the written complaints and interview notes in the District's possession when it
presented Norman with the November 10, 2011, summary
of
allegations; and (2) Elzig's
interview
of
students were not sufficiently comprehensive, which suggested that she was only
interested in corroborating, not disproving, students' complaints.
14
By affirming the ALJ's finding that Elzig's June 25, 2010, e-mail demonstrates
circumstantial evidence of nexus, we do not imply that a manager's expression of frustration or
anger will always demonstrate nexus. Cf. City
of
Oakland (2014) PERB Decision
No. 2387-M, p. 32. In this case, Elzig's response to the Master Grievance, coupled with the
District's investigation practices with respect to Norman are sufficient to shift the burden to the
District to demonstrate that it had and acted based on a non-discriminatory reason.
21

The District asserts in its exceptions that Elzig's interview techniques were not suspect
because she asked non-leading questions, gave the students who offered positive assessments
of Norman a second opportunity to offer information, and refrained from putting the students
on notice that Norman had been accused of wrongdoing.
The District also claims that the ALJ erred by finding that the District's failure to attach
all written complaints and interview notes to the November 10, 2011, summary of allegations
indicated a suspect motive on the District's part. The District asserts that it did not attach all of
the supporting documentation because of Norman's alleged propensity to retaliate against
those who complained about him, although this explanation was not presented to Norman at
the time it withheld the documents. The District also argues that providing derogatory
materials to Norman was not "required by law," and therefore its practice does not demonstrate
nexus.
We agree with the ALJ's reasoning and conclusion that the District's investigation of
Norman's conduct after the Fall 2010, provides a reasonable basis to infer animus. The
District's failure to attach all of the written complaints and interview notes to the November
2011 summary of allegations when Norman had specifically requested that he be given all
evidence against him departs from a common sense, standard procedure. The District had a
practice of not attaching all written evidence to disciplinary documents and that did not waiver
from this practice with respect to Norman from before he engaged in protected activity to when
he was served with the Notice oflntent to Dismiss. However, the District's explanation for
this practice-that it did not want to overwhelm employees with too much information-
makes little sense after Norman asked as early as 2007 to be provided with all documentation.
The District's asserted reasons for not attaching all the backup documentation to the
November 2011 summary of allegations also shifted. In post-hearing briefs, the District
22

claimed that it chose not to attach all the documentation because it believed Norman would
retaliate against those who complained about him. Yet this reason was not offered to Norman
at the time the summary of allegations was presented to him. Moreover, the District did not
explain why it attached some documents but not others. For these reasons, the ALJ was correct
in relying on Chula Vista Elementary School District (2011) PERB Decision No. 2221,
pp. 16-19 among other cases to conclude there was a nexus between Norman's protected
conduct and his termination.
We also agree with the ALJ that Elzig's cursory interview of the students who liked
Norman and her failure to include any record of these positive comments in the investigation
materials provided to Norman suggests an investigation focused on corroborating complaints
rather than disproving them.
The investigation of Norman, combined with evidence of Elzig's hostility towards
participants in the Master Grievance support the burden being shifted to the District to prove
its affirmative defense. Ultimately, the District amply and convincingly demonstrated that it
terminated Norman's employment because oflegitimate, non-discriminatory reasons,
specifically Norman's repeated misconduct.
ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaints and underlying unfair practice charges in Case
Nos. LA-CE-5593-E and LA-CE-5744-E, Jefferey L. Norman v. Jurupa Unified School
District, are hereby DISMISSED.
Members Huguenin and Banks joined in this Decision.
23

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFEREY L. NORMAN,
Charging Party,
V.
JURUPA UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NOS. LA-CE-5593-E
LA-CE-5744-E
PROPOSED DECISION
(August 27, 2013)
Appearances: Richard D. Ackerman, Attorney, for Jefferey L. Norman; Fagen, Friedman &
Fullfrost, LLP, by Kerrie Taylor, Attorney, for Jurupa Unified School District.
Before Eric J. Cu, Administrative Law Judge.
PROCEDURAL HISTORY
In these two cases, a fonner public school employee accuses his fonner employer of
retaliating against him for engaging in activity protected under the Educational Employment
Relations Act (BERA). 1 The employer denies any violation occurred.
On August 3, 2011, Jefferey L. N onnan filed an unfair practice charge against
the Jurupa Unified School District (District) alleging retaliatory denial of personal
necessity leave. The Public Employment Relations Board (PERB or Board) assigned
this charge case number LA-CE-5593-E. On October 1, 2012, Norman filed a second
unfair practice charge. PERB assigned this charge case number LA-CE-5744-E. On
November 1, 2012, the PERB Office of the General Counsel issued a complaint in case
number LA-CE-5593-E. On January 3, 2013, the General Counsel's office issued a complaint
in case number LA-CE-5744-E. The District filed separate answers to each complaint,
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

denying the substantive allegations and asserting multiple affirmative defenses. No informal
settlement conference was held and the two cases were consolidated for formal hearing.
The formal hearing for both cases was held on April 22-23, 2013. During the hearing,
the parties stipulated to the admission of portions of the transcript from a District Commission
on Professional Competence (CPC) hearing regarding Norman's dismissal. Part of that
stipulation was that the admitted testimony would be treated as though it were produced during
the course of the PERB hearing. 2 At the end of the PERB hearing, the parties agreed to submit
simultaneous closing briefs on or before July 26, 2013.
The District filed its closing brief on Friday, July 26, 2013. Shortly after PERB's
offices closed that day, Norman e-mailed a request to extend the briefing deadline until the
following Monday, July 29, 2013. The District opposed the request. The Administrative Law
Judge (ALJ) informed Norman that he could submit his brief on July 29, but his extension
request, along with the issue of whether the brief would be accepted as timely, would be taken
under submission. Nonnan submitted his closing brief on July 29, 2013. That day, Norman's
attorney, Richard D. Ackerman, said that he would explain why the extension was warranted
by declaration, on July 30, 2013. He did not file the declaration until July 31, 2013. At that
point, the record was closed and the matter was submitted for decision.
2 Both parties and their respective counsel participated in the CPC hearing. The
parties agreed to admit testimony from District students, staff, and a forensic investigator at
pages 26-157, 167-301, and 308-344. Those pages were admitted as Joint Exhibit I on
April 22, 2013. The parties later agreed to admit the testimony of District Assistant
Superintendent of Human Resources Tamara Elzig at pages 344-517 and 520-583 with the
same understanding about its evidentiary value. Those pages were admitted as Joint Exhibit II
on April 23, 2013. No agreement was reached regarding either Norman's testimony or the
exhibits from that hearing.
2

RULING ON REQUEST TO EXTEND THE BRIEFING SCHEDULE
Although PERB Regulations3 do not specifically set forth timelines for filing closing
briefs, PERB Regulations 32170G) and 32212 authorize the assigned ALJ to regulate the
submission of briefs, including the time for filing. In general, requests to extend a filing
deadline must be made in writing at least three days beforehand. (PERB Reg. 32132(c).) Late
filings maybe excused "for good cause only." (PERB Reg. 32136.)
In Los Angeles Unified School District (2003) PERB Decision No. 1552, PERB
rejected a charging party's amended charge after she failed to: (I) file the document by the
due date; (2) timely request an extension; or (3) request or demonstrate "good cause" to excuse
the late filing. (Id. at p. 8.) In City of Redding (2011) PERB Decision No. 2190-M, the
respondent filed its closing brief on the deadline provided, but the charging party did not.
After still not receiving the charging party's brief 15 days later, PERB granted the
respondent's motion to reject any submission as untimely. (Id. at proposed decision, p. 2,
fn. 5.) In contrast, in Santa Barbara Community College District (2011) PERB Decision
No. 2212 (Santa Barbara), PERB expressed a general policy preference for resolving disputes
based on their merits. There, the Board accepted a party's closing brief that was timely sent to
PERB, but not served upon the opposing party until nine days later. (Ibid.) The Board found
that the latent-filing party made a conscientious effort to file the brief in compliance with
PERB Regulations and the other party failed to demonstrate any resulting prejudice. (Ibid.) In
Stanislaus Consolidated Fire Protection District (2012) PERB Order No. Ad-392-M
(Stanislaus), the Board held that "good cause" exists for a filing delay when based upon a
"reasonable and credible" explanation or "honest mistakes," such as a mailing or clerical error
3 PERB Regulations are codified at California Code of Regulations, title 8,
section 3 1001 et seq.
3

or some other short delay resulting from either excusable misinformation or circumstances
beyond the filing party's control. (Id. at pp. 3-4.)
In this matter, the parties agreed to submit closing briefs on or before Friday, July 26,
2013. The District filed its brief that day, but Norman submitted his brief three days later, on
Monday, July 29, 2013. 4 He submitted a request to extend the filing deadline, but that
submission was itself untimely. Ackerman's declaration supporting his extension.request was
also submitted one day past the deadline he set for himself. According to the declaration, the
extension was warranted "because
of
a blizzard
of
filings and hearings that were set by the
Court or which were due [on July 26, 2013]." He also mentioned other filings before PERB.
These facts do not establish "good cause" to excuse the late filing
of
either the extension
request or the closing brief. The briefing schedule was set with Norman's agreement more
than three months before the filing deadline. Neither Norman nor his counsel offered any
credible reason for being unable to anticipate and prepare for any conflict between this
schedule and Ackerman's other responsibilities. Even
if
those other responsibilities arose
suddenly and unexpectedly, no reason was offered for filing the extension request until after
the briefing deadline already expired. Based on these facts, Norman has not established that
his late filings were due to excusable misinformation or circumstances beyond his control.
- (See Stanislaus, supra, PERB Order No. Ad-392-M.) And, unlike in Santa Barbara, supra,
PERB Decision No. 2212, Norman has not made a conscientious effort to comply with his
filing responsibilities. Rather, Norman's conduct suggests a consistent disregard for deadlines
4 This matter is notably distinguishable from Scotts Valley Union Elementary School
District (1994) PERB Decision No. 1052, where the parties agreed to submit briefs 30 days
from when transcripts were mailed to the parties. Because the filing deadline in that case was
technically set by mail, i.e., the mailing date of the transcript, the Board found that PERB
Regulation 32130(c) provided the parties with a five-day extension to file briefs. (Id. at
proposed decision, p. 2; fn. 4.) In the present case, the parties agreed to submit briefs on a
date certain, i.e., July 26, 2013, irrespective of when transcripts were mailed. PERB
Regulation 32130(c), therefore, does not apply.
4

set either with his agreement,
by
PERB Regulations, and even by his own counsel. This is not
sufficient to demonstrate "good cause."
In addition, the District is prejudiced by Norman's late filing because it had already
filed its own closing brief. Ackennan's declaration states that he did not review the District's
brief until after July 29, 2013, but that does not fully negate the harm to the District. The ALJ
made it clear that closing briefs were to be filed simultaneously, meaning on the same day.
By
submitting his brief on July 29, 2013, Norman has allotted to himself three additional days to
prepare his arguments that the District did not have. Now, that harm cannot be undone.
Because
of
this prejudice and because Norman has not demonstrated "good cause" to excuse
the filing
of
either his closing brief or his extension request, the extension request is denied and
the closing brief is rejected. It will not be considered as part
of
the record.
FINDINGS OF FACT
The Parties
The District is a public school employer within the meaning
ofEERA
section 3543.l(k). Prior to his dismissal from the District, Norman was a public school
employee within the meaning
of
EERA section 3543
.1
G)
as a teacher. Norman possesses
teaching credentials in both physical education (PE) and math. Teachers at the District are in a
bargaining unit that is represented by the National Education Association-Jurupa (NEA-J).
The District and NEA-J are parties to a Collective Bargaining Agreement (CBA) that was in
effect at all relevant times.
The District's Teacher Investigation and Discipline Processes
<'
The District employs a progressive discipline process that it maintains is designed to
work with teachers to improve performance. At the first level, the employee and his or her
supervisor hold an informal conference to discuss perfonnance issues. Nothing is reduced to
writing. The next step is a similar meeting followed by a written Summary of Meeting. The
5

third step is a Letter
of
Concern outlining the misconduct and providing directives for
corrective action. The next step is a Notice
of
Unprofessional Conduct which, in substance is
similar to the Letter
of
Concern, but in practice, is the most serious form
of
discipline prior to
suspension or dismissal. Elzig testified that a Notice
of
Unprofessional Conduct is followed
by
"an improvement period that allows the employee to improve in order to respond to the
District's concerns." Thus,
if
a teacher is accused
of
further wrongdoing, lower level
discipline, such as a Summary
of
Meeting would issue.
The District may investigate claims against a teacher prior to issuing discipline. Site
administrat0rs typically investigate minor incidents and Elzig, as the head
of
the Human
· Resources Office, leads or assists with investigations involving more serious issues.
Investigations typically involve interviewing those involved, including the subject employee.
The subject employee may be placed on paid administrative leave during the investigation. He
or she is not informed
of
the nature
of
the investiga~ion at the time.
If
the District uncovers what it believes are substantiated complaints during an
investigation it produces a Summary
of
Allegations which, as its name implies, sums up the
District's findings and accusations into a single document. Elzig said that the District does not
include all
of
the underlying information uncovered during the investigation because it she
believes it would be overwhelming for the subject employee. Instead, she said the Summary
of
Allegations is a brief synopsis that allows the employee to focus on the claims made. The
subject employee may respond to the Summary
of
Allegations either verbally, in writing, or
both. The District then reviews all
of
the information gathered, including the employee's
response and decides whether to pursue discipline.
Prior to dismissing a teacher, the District presents a Notice of Intent to Dismiss and a
Statement of Charges (Dismissal Notice) to its Governing Board for approval. Before that
happens, the District provides the teacher with a draft version
of
those documents and gives the
6

teacher the option to hold a Skelly hearing. 5
The employee
may
respond to the charges during
the hearing or in writing.
If
the District believes cause still exists for dismissal after the Skelly
hearing, or
ifno
Skelly hearing is held, the draft charges are provided to the District's
Governing Board during a meeting for consideration. The employee is notified
of
the meeting
beforehand and
may
address the Governing Board prior to the vote.
If
approved
by
the Governing Board, the District serves the Dismissal Notice on the
teacher, along with a verification from Elzig about the accuracy
of
the charges.
At
that point,
the teacher has the opportunity to request a hearing before the
CPC
to decide whether there is
good cause for the dismissal.
Norman's
Tenure as a PE Teacher
Nonnan
was hired
by
the District as a PE teacher at Mission Middle School in 2001. In
2005, Norman received a performance evaluation where he was rated as "Exceeds District
Standards," the highest possible score.
However, in early 2007, the District began investigating claims by other staff
concerning Norman's misconduct. On February 28, 2007, Elzig presented Norman with a
Summary
of
Allegations about those claims. There were no supporting documents
accompanying the summary. Norman responded in writing, stating that there was insufficient
detail and no documentary proof
of
the claims. On March 13, 2007, the District issued him a
Letter
of
Concern due to claims that Nonnan had "angry" confrontations with other employees.
Norman responded voicing similar objections about the lack
of
documentary evidence.
5 The term Skelly hearing refers to a pre-disciplinary hearing that complies with the due
process requirements set forth in Skelly v. State Personnel Board (1975) 15 Cal.3d 194. This
hearing allows public employees to challenge the sufficiency of the evidence in certain
proposed discipline. (City
of
Modesto (2008) PERB Decision No. 1994-M, p. 2, fn. 3.)
7

The District reassigned Norman to teach math in the 2007-2008 school year. At an
unspecified time, Norman filed a grievance over the matter but the record is mixed as to how
and when the grievance was resolved. However, Norman agreed to remain a math teacher.
The Notice
of
Unprofessional Conduct
On April 14, 2009, Elzig issued Norman a Summary
of
Allegations concerning student
complaints and Norman's failure to bring his class to a school assembly. Among the
complaints were that Norman appeared angry and yelled at students, that he hit a student with a
stack
of
paper, and that he threw a student's belongings out
of
his classroom while yelling "get
out!" Nonnan responded to the Summary
of
Allegations, denying the students' claims and
asserting that the assembly was voluntary. He complained that the Summary
of
Allegations
was not specific enough to prepare a sufficient response and claimed that the District was
disciplining him in response to prior grievance activity. In his response, Norman admitted to
accessing students' cumulative files to gather information about his accusers.
On May 13, 2009, Elzig issued Norman a Notice
of
Unsatisfactory Service referencing
the 2007 Letter
of
Concern, the student complaints, the assembly issue, and Nonnan's
unauthorized access
of
student cumulative files. The document also gave Norman a series
of
directives aimed at controlling his anger, treating students professionally and respectfully, not
accessing student records for other than educational purposes, not leaving students
unsupervised, and using instructional time effectively.
Discipline in the 2009-2010 School Year
The District issued Norman four disciplinary d~cuments in the 2009-2010 school year.
On October 20, 2009, Elzig held a meeting with Norman about student complaints submitted in
September and October 2009. Mission Principal Mendez, and Vice Principal Nanette Prince-
Eggeter, and a union representative also attended. ·Specifically, students complained that
Nonnan became visibly angry in class, yelled at them during class, made students stand in the
8

corner as a means
of
discipline, and misused instructional time to watch a video clip. Elzig
issued Norman a Summary
of
Meeting on October 26, 2009.
On November 18, 2009, Prince-Eggeter issued Nonnan a memorandum about
unplugging his classroom telephone and misrepresenting that it was broken. Norman admitted
to unplugging his telephone.
On January 29, 2010, Prince-Eggeter met with Norman to discuss a parent complaint
that Norman called a student a "stupid ass" during class. Prince-Eggeter issued Norman a
Summary
of
Meeting on February 11, 2010.
On April
7,
2010, Mendez met with Norman to discuss additional student complaints,
including claims that he told a student to "go somewhere else"
if
she did not want to be in his
class, that when the same student asked for his assistance, he said "help yourself, it wouldn't
kill you." He was also accused
of
denying a student's restroom request, stating
"I
don't care,
you can pee yourself." Norman denied making those statements. Mendez sent Norman a
Summary
of
Meeting on April 13, 2010.
The 2010 Performance Evaluation
On May 14, 2010, Mendez issued Norman a performance evaluation with an overall
rating of"Needs Improvement," the second lowest possible score. The evaluation referenced
concerns expressed by parents and students and the need to treat others respectfully and
professionally. Norman responded, maintaining that the inclusion
of
parent complaints in his
evaluation violated the CBA complaint procedure and that other comments were too vague.
The CBA complaint procedure requires parent complaints to be made directly to the teacher
·"whenever possible," but does not specify who decides whether such an approach is possible.
The "Master Grievance" and Elzig's Response
In June 2010, an anonymous group of certificated and classified employees filed a
document entitled "Master Grievance" with the District as well as the California Department of
9

Education, U.S. Department
of
Education, Equal Employment Opportunity Commission,
Riverside County Office
of
Education, Riverside District Attorney's Office, and unnamed
union representatives. Ackerman attended the District Governing Board's June 2010 meeting
and distributed copies
of
the Master Grievance to the attendees.
The Master Grievance included
21
enumerated complaints about a variety
of
working
conditions at the District including multiple complaints about the District's discipline
procedures, rest break policies, the handling
of
employee personnel information, and union
misconduct. Two
of
the complaints mentioned Elzig directly. Relevant to this case is the
claim
of
"[r]etaliation against male employees who did not submit to sexually suggestive
conduct or words on the part
of
one
T.
Elzig within the last three years." The document also
alleged violations
of
the State Constitution, the Education Code, and the Labor Code. Nothing
in the Master Grievance expressly referenced either the NEA-J CBA or the CBA for classified
employees.
In the document, the complainants requested a State investigation and a public
hearing before the District's Governing Board.
On June 25, 2010, Elzig sent an e-mail message to all District employees about both the
Master Grievance as well as other rumors about her personal life that were circulating
throughout the District. In the e-mail, Elzig mentioned that District Governing Board Member
Michael Rodriguez forcibly grabbed her by the arm and threatened to "break [her] down
publicly" due to something she said during a Governing Board meeting. She noted that
Ackerman was Rodriguez's attorney and said
"I
can say with absolute confidence that this is
not a coincidence that [the Master Grievance complainants] have retained Mr. Rodriguez's.
attorney to attack personnel practices." Elzig confronted what she called "vicious rumors"
about her and said she "never participated in inappropriate 'sexually suggestive conduct' at
work or in [her] personal life." She also said that "the issues outlined in the [Master

Grievance] complaint are false," without elaborating on whether she was referring to all
21
listed complaints or only those involving her personally.
Elzig said she first believed that Norman was one
of
the complainants from the Master
Grievance sometime during Fall 2010, when
18
employees, including Norman, filed a writ
petition against the District about its personnel practices. Although not entirely clear from the
record, Elzig apparently assumed that the
18
petitioners also initiated the Master Grievance.
At least with respect to Nom1an, Elzig' s assumption was correct.
Norman's Personal Necessity Leave Request
In April 2011, the District scheduled a dismissal hearing scheduled for one
of
its
classified employees, Leslie Braden on May 17, 2011 (the Braden hearing). The hearing
had previously been rescheduled twice. District classified employees are not represented by
NEA-J and neither the NEA-J CBA nor the teacher discipline process applies to classified
employees.
On the morning
of
May 17, 2011, Norman telephoned the District's automated network
to arrange for a substitute teacher and indicated that he was taking personal necessity leave
under the CBA that day. Norman and Elzig both attended the hearing but did not speak to each
other. Elzig was scheduled to testify but the hearing was canceled by the hearing officer due to
illness. A few days later, Norman filled out a form requesting the use
of
personal necessity
leave. He did not include the reason for needing personal necessity leave that day. Norman
initially testified that NEA-J president John Vigrass spoke with Elzig about Norman's leave
request prior to May 17, but Norman later admitted that he was mistaken and that Vi grass only
spoke to Elzig at some point afterwards.
According to the CBA, "under no circumstances" should personal necessity leave be
used for matters of personal convenience, to extend other time off, or for "matters which
reasonably can be taken care of outside work hours." In two different places, the CBA
11

specifies that personal necessity leave should be requested at least two days in advance when
possible. The CBA notes "[ t]ailure to secure advanced permission may result in the absence
being taken without compensation."
The CBA also provides exceptions to the advance notice requirement, including
emergency situations, other events that could not be scheduled outside regular working hours,
and "[o]ther compelling personal reasons
of
the tmit member." An explanation
of
the leave is
typically not required unless the District has reason to believe that the leave is being abused.
According to Norman, teachers are not required under the CBA to give either advance
notice or a reason prior to taking personal necessity leave. He said he took personal necessity
leave
on
21 other occasions and never provided advance notice or a reason for the leave.
Elzig flatly disputed Norman's testimony, stating that she regularly reviews personal necessity
leave requests for abuse and has denied multiple leave requests. She also said that personal
necessity leave was only allowed during an emergency or other unavoidable circumstance.
Elzig's testimony is credited over Nom1an's on this issue because it is more consistent with the
language
of
the CBA. In addition, Norman's account was contradicted elsewhere in the
record. He had to recant earlier testimony about Vigrass's involvement in the personal
necessity leave request. Furthermore, when Norman listed the content
of
his personnel file,
there was no record
of
any prior personal necessity leave usage, even though Elzig credibly
testified during the CPC hearing that personal necessity leave records were kept there. She
also found no records
of
another employee that Norman said regularly takes personal necessity
leave for recreational hunting trips. For these reasons it is concluded that personal necessity
leave is only appropriate for either emergencies or situations where the teacher's presence is
required during regular business hours. It is further concluded that personal necessity leave
requests must be submitted at least two days in advance, whenever possible.
12

On May 20, 2011, Elzig sent Norman a letter stating that she intended to deny his
request because the Braden hearing did not qualify for personal necessity leave and because he
did not submit the required form until after he already took the leave. She invited Norman to
provide additional information about the nature
of
his request before she made her
determination. Nonnan never responded.
Without being requested to do so, Vigrass contacted Elzig after she denied Norman's
personal necessity leave request. The substance
of
what Vigrass said to Elzig was entirely
uncorroborated hearsay. At some point, Elzig received a request from NEA-J that Norman's
May 17, 2011 absence be compensated as Association leave, which entitled NEA-J designees
to attend conferences or participate in other union business. Norman was not involved in that
request. Association leave requests must be submitted at least two days in advance. Elzig
denied that request.
The District docked Norman's pay
by
one day for the May 17, 2011 absence, roughly
$450.00. NEA-J issued Norman a check for his lost salary that day.
The 2011 Investigation
During Fall 2011, the District began investigating additional student complaints filed
against Norman. Among the complaints were that Norman refused to assist a student with his
math and sent him to the back
of
the class and that he called another student "retarded" for
getting a math problem incorrect. Both students were forced to write essays as a form
of
punishment. Around that time, the District also began investigating Norman's District
computer. It hired a computer forensics expert for that purpose. Norman was placed on paid-
administrative leave on November 2, 2011. He was not informed
of
the subject
of
the
District's investigation at that time.
Elzig interviewed between 15 and 20 of Norman's students. She said she initially
asked the students only general questions and would follow up if students raised concerns or
13

complaints about Norman.
If
the students had nothing negative to say, she would end the
interview without further questions. During her interviews, some students said that they liked
Norman or that he was "cool." No record
of
those interview notes was produced.
On November 10, 2011, Elzig presented Norman with a Summary
of
Allegations. The
complaints in the Summary
of
Allegations included claims that Norman yelled at students
during class and used inappropriate language to describe students, such as "lazy," "hot," and
"sexy beast." The document also alleged that Norman threw a student's belongings out
of
his
classroom, left students unsupervised, refused to assist students, and inappropriately stared at
female students' bodies. The Summary
of
Allegations also referred to past incidents where the
District previously warned Norman about calling students names, refusing to assist students,
and throwing a student's belongings. Some, but not all,
of
the allegations were supported by
documentary evidence, attached as exhibits, such as written student statements and interview
notes from Mendez or Prince-Eggeter.
Through counsel, Norman responded to the November 30, 2011 Summary
of
Allegations. The response addressed the substance
of
the claims against him in just one
sentence: "Our client categorically denies every one
of
your allegations." NEA-J also filed a
response.
On December 4, 2011, the computer forensics examiner produced a report about
Norman's computer. Among the examiner's findings was that the computer contained
downloaded images
of
nude women originating from Norman's mobile telephone. Those
claims were summarized in another Summary
of
Allegations issued on December 15, 2011.
Norman declined the opportunity to respond, but NEA-J filed something on his behalf.
The Dismissal Notice
On Febrnary 16, 2012, Elzig presented Norman with a document entitled "[Draft]
Notice of Intent to Dismiss and Immediately Suspend; Statement of Charges" (Draft Notice).
14

The Draft Notice was more than 300 pages long and included all of Norman's prior written
discipline, his 2005 and his 2010 evaluations, and the various Summaries of Allegations he
received. Although many of the allegations in the Draft Notice were the same as those in the
November 10 and December 15, 2011 Summaries of Allegations, the Draft Notice also
attached student statements and administrators' notes not previously shown to Norman.
Elzig also sent Nonnan a letter informing him of the right to request a Skelly hearing.
Norman requested a hearing and one was scheduled, then rescheduled at Norman's request.
The hearing was eventually set for March 14, 2012, but Norman did not appear and did not
request further rescheduling. Elzig gave Norman the opportunity to respond to the Draft
Notice in writing. Norman did not respond.
On March 28, 2012, Elzig informed Norman by letter that the District's Governing
Board would consider the Draft Notice during its April 2012 meeting and that he would have
the opportunity to attend and address the board members during open session. Norman did not
appear at the meeting. That day, the District's Governing Board approved the Draft Notice
without changes.
On or around April 3, 2012, the District sent Norman the final Dismissal Notice. This
document was identical to the draft Dismissal Notice except it omitted the word "draft." The
District initially neglected to include Elzig's signed verification along with the notice, but it
corrected that error on August 22, 2012. No further changes were made to the Dismissal
Notice. Nornian requested that the Dismissal Notice be reviewed for cause at a CPC hearing.
The CPC Hearing
The CPC hearing was held on five non-consecutive days between December 10 and 20,
2012. The issue was whether good cause existed for the Dismissal Notice. During the hearing,
13 former students testified about their complaints with Norman's conduct. All were identified
for the record only by their initials for privacy reasons. Most of the students (eight) were in
15

one
of
Norman's classes during the 2011-2012 school year, but there were also students from
Norman's classes in the 2010-2011, 2009-2010, and 2008-2009 school years. All
13
students
testified that they saw Norman yelling loudly at students during class. Many testified that he
yelled at them personally, some stating that he was only a few feet away or was "really close to
me, where you could feel him breathing." The students rated his voice
as
somewhere between
7 and 9 on a scale
of
1 to 10. They also said he appeared angry and was not merely raising his
voice to match the students' own loud voices.
In addition,
10
of
the
13
students, including some from 2009-2010, 2010-2011, and
2011-2012, observed Norman staring inappropriately at female students' body parts. Some
female students observed him looking at them. Eight students also testified that Nom1an used
words like "stupid ass," "big mouth," "lazy," "sexy beast," "hot," "weirdo," 'retarded," and
"cheesy biscuits," to describe them during class time. Two students said that Norman became
angry with them and threw their belongings out
of
his classroom. The first incident occurred
in 2009, the second in 2011. Four sh1dents said they were scared
of
Norman or uncomfortable
around him because
of
his conduct. Other District personnel also testified consistently with the
students. The forensic computer examiner also testified about the nude images he recovered
from Norman's District computer. The CPC upheld the dismissal by a written decision issued
on January 18, 2013.
ISSUES
1.	
LA.-CE-5593-E: Did the District deny Norman's May 17, 2011 personal
necessity leave request and reduce his compensation in retaliation for his protected activity?
2. 	LA-CE-5744-E: Did the District issue Nom1an the April 6, 2012 Dismissal
Notice in retaliation for his protected activity?
16

CONCLUSIONS OF LAW
Both
of
Norman's unfair practice charges allege retaliation for BERA-protected
activity. To demonstrate that an employer discriminated or retaliated against an employee in
violation
of
EERA section 3543.5(a), the charging party must show that: (1) the employee
exercised rights under EERA; (2) the employer had knowledge
of
the exercise
of
those rights;
(3) the employer took adverse action against the employee; and (4) the employer took the
action because
of
the exercise
of
those rights. (Novato Unified School District (1982) PERB
Decision No. 210, pp. 6-8 (Novato).)
For ease
of
discussion, the elements
of
Norman's alleged protected activities and the
District's knowledge
of
those activities will be addressed together, followed by a separate
discussion
of
the alleged adverse actions and the District's motivation.6
A.
	Protected Activity With the District's Knowledge
To establish a prima facie case for unlawful retaliation, Norman must first prove that he
engaged in activities protected under EERA and that the District was aware
of
those activities.
(Palo Verde Unified School District (1988) PERB Decision No. 689, proposed decision, p. 25.)
EERA section 3543(a) protects employees' right to form, join, and participate in the activities
of
employee organizations. That section also protects employees' right to represent themselves
individually before their employer. (Ibid.)
To establish the knowledge element
of
a prima facie case, at least one
of
the individuals
responsible for taking the adverse action must be aware
of
the protected conduct. (Oakland
6 It is acknowledged that each PERB complaint alleges different protected activities.
Case number LA-CE-5593-E alleges that Norman's protected conduct was requesting personal
necessity leave to attend the Braden hearing. LA-CE-5744-E alleges that Norman's protected
conduct was his PERB unfair practice charge activity and his filing of the Master Grievance.
Because there was ample notice ofNom1an's claims, all the alleged protected activities were
fully addressed in a single PERB hearing, and both parties had a full opportunity to explore
these issues with evidence, it is appropriate to consider the protected activity alleged in case
number LA-CE-5593-E as part of case number LA-CE-5744-E, and vice versa. (See Lake
Elsinore Unified School District (2012) PERB Decision No. 2241, p. 8.)
17

Unified School District (2009) PERB Decision No. 2061.) In other words, the issue is
whether "the individual(s) who made the ultimate decision to take adverse action against the
employee had such knowledge." (Sacramento City Unified School District (2010) PERB
Decision No. 2129 (Sacramento City), p. 7, citing City ofModesto (2008) PERB Decision
No. 1994-M.) Each
of
Norman's alleged protected activities will be discussed below.
1.
	The Master Grievance
Norman alleges that his participation and distribution
of
the group Master Grievance in
June 2010 is protected under EERA. PERB has found that employees' collective complaints
about their employer's extra shift and premium pay policies constituted protected activity.
(Regents
of
the University
of
California (Davis) (2004) PERB Decision No. 1590-H.)
Likewise, in Jurupa Unified School District (Lukkarila) (2012) PERB Decision No. 2283
(Jurupa (Lukkarila)), concerning substantially similar allegations, the Board held that a "group
complaint" submitted to an employer through counsel was protected under EERA because it
was an attempt to enforce workplace rights. (Id. at p. 15, citing Eastex Inc.
v.
NLRB (1978)
437 U.S. 556; Franklin Iron & Metal Corp. (1994) 315 NLRB 819,
enfd
(6th Cir. 1996)
83 F.3d 156.) In addition, PERB has found that public distribution
of
materials critical
of
an
employer's management may be protected
if
they provide "comments on matters which were
of
legitimate concern to the teachers as employees." (Mt. San Antonio Community College
District (1982) PERB Decision No. 224, p. 7; see also California Teachers Assn.
v.
Public
Employment Relations Bd. (2009) 169 Cal.App.4th 1076, 1091.)
Here, the Master Grievance was a clear attempt to address workplace concerns
applicable to all District employees, including discipline, break times, and other personnel
matters. That document was distributed publicly during a well-attended District Governing
Board meeting. Based on these facts, Norman's involvement in the Master Grievance is
protected under EERA.
18

Nonnan
has also established that Elzig, who both denied Norman's personal leave
request and drafted the Dismissal Notice, was aware
of
his involvement with the Master
Grievance as
of
Pall 2010. She testified that she assumed he was one
of
the Master Grievance
complainants after seeing court litigation documents listing him as a petitioner. Although the
relationship between the Master Grievance and the writ petition were not made entirely clear
for the record, further clarification
.is
unnecessary because even Elzig' s mistaken belief that
Norman engaged in protected activity is sufficient to establish these elements. (Simi Valley
Unified School District (2004) PERB Decision No. 1714, p. 15.)
2. 	PERB Unfair Practice Charges
EERA guarantees that "[a]ny employee, employee organization, or employer shall
have the right to file an unfair practice charge." (EERA, § 3541.S(a).) Accordingly, PERB
has found that filing and pursuing unfair practice charges is protected activity. (Healdsburg
Union High School District (1997) PERB Decision No. 1185 (Healdsburg), proposed
decision, p. 47, citing North Sacramento School District (1982) PERB Decision No. 264
(North Sacramento).) Here, Norman filed case number LA-CE-5593-E on August 3, 2011, and
case number LA-CE-5744-E on October 1, 2012. Needless to say, Norman has pursued both
cases throughout the instant formal hearing. This activity is protected under EERA.
The record also shows that the District was aware
of
Norman's unfair practice charge
activity. Elzig was listed as a recipient to the District's position statements in both case
number LA-CE-5593-E, on August 22, 2011, and case number LA-CE-5744-E, submitted on
November 5, 2012. Those documents acknowledged Nonnan's unfair practice charges and
responded to his allegations. This demonstrates her knowledge
of
his charge activity.
3. 	The Personal Necessity Leave Request
Norman also alleges that he engaged in protected activity by requesting a personal
necessity day to attend the Braden hearing. During the hearing, Norman provided two
19

purposes for attending the hearing that he asserts were protected. The first purpose was
"gathering information on the practices
of
our collective bargaining agreement in respect to
how it was administered by Tammy Elzig." In general, the investigation into possible contract
violations for the purpose
of
pursuing grievances may constitute protected activity. (State
of
California (Department
of
Corrections & Rehabilitation) (2012) PERB Decision No. 2285-S,
pp. 9-10.) However, in this matter, Norman has not shown that his agreement, the NEA-J
CBA, was at issue in the Braden hearing. It is undisputed that the hearing involved the
dismissal
of
a classified employee and that the classified employees' CBA does not apply to
teachers. There was no evidence that Elzig would testify about the NEA-J CBA. Nor did
Norman establish that the District/NEA-J CBA contains terms that overlaps with the classified
employees' CBA in any meaningful way. Under these circumstances, Norman has not met his
burden
of
proving that his attendance at the Braden hearing was protected pursuant to his right
to gather information, or otherwise investigate Elzig's application
of
the NEA-J CBA.
Norman also said he hoped to share what he learned from Elzig's testimony during the
Braden hearing with other District employees. Employees' discussions about terms and
conditions
of
employment is protected. (The Roomstores
of
Phoenix, LLC (2011) 357 NLRB
No. 143, p. 3, fh. 3.) Even communications that are critical
of
management may be protected
if
its purpose is to advance employees' interests or working conditions. (Id. at p. 78; State
of
California, Department
of
Transportation (1982) PERB Decision No. 257-S, pp. 6-7
(Department
of
Transportation).) On the other hand, communications bearing no discernible
relationship to employee working conditions is not considered protected. (Department
of
Transportation, supra, at pp. 7-8.)
In this matter, Norman stated during the hearing that his goal was to assist other District
employees with what he learned about Elzig's interpretations of either the NEA-J CBA or the
classified employees' CBA. However, it is undisputed that Norman never communicated that
20

goal to Elzig or ap.yone else at the District even after Elzig requested further details from him.
Thus, Elzig was unaware of why Norman wanted to take the leave. This is not sufficient to
establish that Norman engaged in protected activity with the District's knowledge.
Although not fully clear, Norman also appears to assert that merely requesting personal
necessity leave is protected under EERA because the right to such leave is covered by the
NEA-J CBA. As explained above, EERA section 3543(a) includes the individual right of self-
representation. To qualify as protected self-representation, the individual activity must be "a
logical continuation of group activity." (San Joaquin Delta Community College District
(2010) PERB Decision No. 2091, p. 3.) However, an individual's activity made solely for his
or her own benefit is not protected. (Ibid.)
In Jurupa (Lukkarila), supra, PERB Decision No. 2283, the Board held that a teacher
engaged in protected self-representation by using a negotiated dispute resolution procedure to
enforce provisions of a CBA. (Id. at p. 16.) In reaching that conclusion, the Board cited to,
among other cases, Meyers Industries, Inc. (1986) 281 NLRB 882. There, the National Labor
Relations Board (NLRB) found that a truck driver's individual effort to enforce negotiated
contractual rights was protected because his actions benefitted all employees. (Id. at p. 888,
enf'd sub nom Prill v. NLRB (D.C. Cir. 1987) 835 F.2d 1481.)7 In Oakdale Union Elementary
School District (1998) PERB Decision No. 1246 (Oakdale), the Board found that an
individual's use of the CBA safety complaint process to report unsafe working conditions
qualified as protected activity. (Id. at pp. 16-17.) Likewise, in Los Angeles Unified School
District (2005) PERB Decision No. 1787 (LAUSD), the Board found that an employee's
7 In Jun1pa (Lukkarila), the Board also cited with approval California Teachers
Association, Solano Community College Chapter, CTAINEA (Tsai) (2010) PERB Decision
No. 2096 (CTA (Tsai)), p. 10, suggesting that the teacher's conduct was also protected tmder
the protected right to present grievances to her employer under EERA section 3543(b ).
21

submission
of
a contract-based workplace injury report form to her supervisor at the behest
of
her union was protected under EERA. (Id. at proposed decision, p. 11.)
In contrast, in Marin County Law Library (2004) PERB Decision No. 1655-M, the
Board found that an individual's request for her job description and a schedule change were
made solely for her own benefit and did not constitute protected self-representation. (Id. at
dismissal letter, p. 4.) Similarly, in State
of
California (Department
of
Corrections &
Rehabilitation) (2008) PERB Decision No. 1961-S, the Board held that an individual
employee's bid for a job assignment pursuant to an agreement negotiated between his union
and his employer was not protected. (Id. at warning letter, p. 4.) The Board echoed that
sentiment in State
of
California (Department
of
Forestry & Fire Protection) (2004) PERB
Decision No. 1690-S, holding that "case law does not support a finding that a request for a
transfer constitutes protected conduct any more than, for example, would a request by an
employee for a vacation day, or an employee's application for a promotion, or a request to
work overtime." (Id. at dismissal letter, p. 3; see also State
of
California (Department
of
Corrections & Rehabilitation) (2010) PERB Decision No. 2118-S, pp.6-7 [individual's
overtime request was not protected].)
Here, Norman has not shown that his personal necessity leave request qualifies as either
a logical extension
of
group activity or the presentation
of
a grievance to the District. Unlike
in Jurupa (Lukkarila), supra,
PERB
Decision No. 2283, Norman was not attempting to enforce
a CBA provision; he merely sought to utilize one of those provisions to his individual benefit.
The CBA also entitles unit members to a one hour duty free lunch period, but it cannot be said
that Norman engaged in BERA-protected activity simply by taking his lunch break. In sharp
contrast, and as already explained above, Nonnan's efforts to enforce existing break
procedures through the Master Grievance is protected. Nor was Nonnan reporting on safety
conditions or other matters of employee concern as in LA USD, supra, PERB Decision
22

No. 1787 or Oakdale, supra, PERB Decision No. 1264. Rather, Norman's leave request was
for his own sole benefit and was accordingly more akin to an individual's request for a
schedule change, job assignment, or overtime. 8 Under these circumstances, Norman's personal
necessity leave request was not protected under BERA. Accordingly, this proposed decision
will not address further whether the District retaliated against Norman because
of
his May 17,
2011 personal necessity leave request.
B. 	Adverse Actions
The next issue is whether the District took adverse actions against Norman. PERB
considers objective criteria when deciding whether an employer has committed an adverse
employment action. (Palo Verde Unified School District (1988) PERB Decision No. 689.) In
a later decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864, p. 11, emphasis supplied,
fn. omitted.) In this matter, each case alleges a separate adverse action.
1.	
Denial
of
Personal Necessity Leave (Case No. LA-CE-5593-E)
PERB has found that an employer's action that results in the loss
of
pay to be adverse
in a variety
of
circumstances. (See e.g., Chula Vista Elementary School District (2011) PERB
Decision No. 2221 (Chula Vista), p. 15, fn. 9 [loss of extra-duty assignment]; City
of
Modesto
(2008) PERB Decision No. 1994-M, p. 12 [suspension without pay].) In addition, PERB has
Norman disagreed w.ith Elzig's interpretation
of
the personal necessity leave provision
of
the CBA but he never vocalized that disagreement to the District or otherwise explained to
anyone why he felt his interpretation was more correct. In the same way that merely harboring
safety concerns without reporting them is unprotected (see Menlo Park Fire Protection District
(2008) PERB Decision No. 1983-M, pp. 7-8), Norman's _privately held beliefs about Elzig's
misinterpretation of the CBA does not qualify for protected status.
23

held that an employer's denial
of
even an unpaid leave request may be an adverse action.
(Rio Hondo Community College District (1982) PERB Decision No. 226, p. 5.)
In this matter, the District denied
Nonnan's
personal necessity leave request and,
because he had already taken the day off, it also docked his pay
by
one day. A reasonable
person in Norman's situation would find both the denial
of
the leave request and the reduction
in compensation to be adverse to employment. The District does not dispute this issue in its
closing brief.
2. 	Dismissal Notice (Case No. LA-CE~5744-E)
PERB has held that an employer's unequivocal notice to impose discipline is an
adverse employment action. (Los Angeles County Superior Court (2008) PERB Decision
No. 1979-C; County
of
Merced (2008) PERB Decision No. 1975-M.) In Monterey County
Office
of
Education (1991) PERB Decision No. 913, the Board held that an employer
committed an adverse action by issuing a notice
of
intent to terminate the charging party
followed by actual termination. (Id. at proposed decision, p. 3.) Here, on or around April 6,
2012, the District issued Norman the Dismissal Notice. It eventually followed through with
dismissal. This is an adverse action. This was not disputed in the District's closing brief.
C. 	Nexus
The next element
of
a prima facie case is whether there is a causal connection, or
nexus, between the adverse actions and the protected activity. The existence or absence
of
nexus is usually established circumstantially after considering the record as a whole.
(San Bernardino City Unffied School District (2012) PERB Decision No. 2278, warning letter,
p. 3, fn. 2, citing Moreland Elementary School District (1982) PERB Decision No. 227.)
1.
	Timing as Circumstantial Evidence of Nexus
The timing between the employer's adverse actions and the protected activity is
typically an important circumstantial factor to consider in establishing or disproving nexus.
24

(North Sacramento, supra, PERB Decision No. 264, proposed decision, p. 23) 	PERB has held
that "[t]iming is important in an unlawful motivation inquiry to the extent that it shows that
[the respondent] responded to protected activity by initiating [a] negative personnel action
against the [charging party]." (State
of
California (Department
of
Social Services) (2000)
PERB Decision No. 1413-S, proposed decision, p. 11.) Although the Board has occasionally
described timing as an "element"
of
the prima facie case for retaliation, it more accurately held
that
'"the
closeness in time (or lack thereof) between the protected activity and the adverse
action goes to the strength
of
the inference
of
unlawful motive to be drawn and is not
determinative in itself."' (CTA (Tsai), supra, PERB Decision No. 2096, p. 11, quoting
Metropolitan Water District
qf
Southern California (2009) PERB Decision No. 2066-M.)
a.
	Timing and the Personal Necessity Leave Allegation (LA-CE-5593-E)
In the present matter, the June 2010 Master Grievance was Norman's only protected
activity before the District denied the personal necessity leave request. 9 However this
document was filed nearly a year before Elzig denied Norman's leave request. Elzig said she
discovered Norman's involvement in the Master Grievance in the Fall
of
2010, around eight
months before she denied his personal necessity leave request. The length
of
time between
these events does not support Norma's retaliation claim. (See Los Angeles Unified School
District (1998) PERB Decision No. 1300, dismissal letter, p. 1 [five or six months between
protected activity and adverse action did not suggest nexus].)
9 Norman engaged in additional protected activities shortly after the personal necessity
leave incident, namely filing unfair practice charge case number LA-CE-559-E on August 3,
2011. However, typically, PERB finds no evidence of a retaliatory motive where the charging
party's protected activity follows after the adverse action in question. (See Oxnard Union
High School District (2010) PERB Decision No. 2265, warning letter, p. 4.)
25

b.	
Timing and the Dismissal Notice Allegation (LA-CE-5744-E)
Similarly, the Dismissal Notice issued on April 6, 2012, occurred long after the Master
Grievance. Likewise, the Dismissal Notice issued approximately eight months after Norman
filed unfair practice charge case number LA-CE-5593-E. Under the circumstances
of
this case,
this timing does not suggest nexus.
10
It
is true that Norman's unfair practice charge was still active at the time the District
issued the Dismissal Notice. In State
of
California (Department
of
Social Services) (2000)
PERB Decision No. 1413-S, the Board recognized that an employee's protected involvement
with his union was ongoing but declined to find any suspicious timing because there was no
"escalation'' in that involvement around the time the employer took the adverse action. (Id. at
proposed decision, p. 11.) The Board reached a different conclusion in County
of
Riverside
(2009) PERB Decision No. 2090-M, where an employee's protected complaint activity began
long before the adverse action, but continued and "came to a head" during a meeting with the
management shortly before the adverse actions occurred. (Id. at p. 35.) In this matter,
although unfair practice charge case number LA-CE-5593-E remained pending through 2012,
there was no escalation or culminating event in the PERB case such as the filing-of an
amended charge or the issuance
of
the PERB complaint at the time the District issued the
Dismissal Notice. This, at most, provides weak evidence
of
nexus.
2. 	Other Circumstantial Evidence
As explained above, closeness in time is not determinative about the existence
of
absence
of
nexus. Norman may demonstrate the required nexus through other evidence.
0
It
is also noteworthy that Norman's charge filing occurred around six months before
February 16, 2012, the date the District issued the Draft Notice. The timing between these two
events is also generally too remote to suggest a strong causal connection. (See Los Angeles
Unified School District, supra, PERB Decision No. 1300, warning letter, p. 1.) The Draft
Notice was later adopted, in its entirety, by the District's Governing Board on April 6, 2012.
26

a.
	The Personal Necessity Leave Allegation (LA-CE-5593-E)
Norman asserted during the hearing that the District did not follow its existing practices
and engaged in disparate treatment when it denied his personal necessity leave request.
If
true,
such conduct may provide evidence
of
nexus. (See Sacramento City Unified School District
(2010) PERB Decision No. 2129, p. 8; Oakland Unified School District (2009) PERB Decision
No. 2061, pp. 9-10.) Here, however, Norman's description
of
the personal necessity leave
policy was not credited because it was inconsistent with the CBA and otherwise conflicted
with the record. Using Elzig's more credible explanation
as
a starting point, Norman has not
established any departure from existing policy or disparate treatment. Elzig denied Norman's
request because it was not submitted in advance and was not for either an emergency or some
other purpose that required his presence during his regular working time.
Nonnan maintains that he could not have given advance notice because he was unsure
whether the Braden hearing would be canceled as it had been in the past. This position is
unpersuasive because it is undisputed that the Braden hearing was calendared more than a
month before May 17, 2011. Any uncertainty about whether the hearing would proceed that
day did not prevent Norman from making the request in advance and then modifying the date
of
the request
if
the hearing date changed. The terms
of
the CBA put Norman on notice that
the failure to receive advance approval could result in the denial
of
his leave request. Norman
did not put forth credible evidence that advance notice had not been required in the past.
Based on these facts, Norman has not shown that the District deviated from existing policy or
treated him differently when it concluded that he failed to provide advance notice.
Furthermore, Norman has not proven that his attendance at the Braden hearing qualified
for personal necessity leave. Norman maintains that the Braden hearing could only have taken
place during working hours, but this position is unpersuasive given Norman's stated reason for
attending the hearing. He said he wanted to use Elzig's testimony to assist himself and other
27

District employees. Norman does not establish, however, that he needed to attend the Braden
hearing to achieve that goal. Put another way, Norman has not shown that he could not have
gathered the same information from reading a transcript of that proceeding. 11 Even if that was
an adequate justification for personal necessity leave, Norman never explained that reason to
anyone at the District. In absence of any provided reason from Norman, it was not a departure
from existing practices for the District to deny his request. And with no other direct or
circumstantial evidence of nexus present, Nonnan has failed to establish a prima facie case in
case number LA-CE-5593-E. Accordingly, the charge and complaint in that case is dismissed.
b. 	The Dismissal Notice Allegation (LA-CE-5744-E)
Norman has shown circumstantial evidence of nexus due to concerns about the
District's investigation process. Chief among those concerns is the apparent bias of the
District's chief investigator, Elzig. During cross-examination at the PERB hearing Elzig
admitted that "at this point, I disbelieve most everything Norman says." She never elaborated
on what she meant. Without further explanation about the basis for her distrust, her testimony
casts doubt about whether Norman's investigation was truly objective. Elzig's Jtme 25, 2010
e-mail about the Master Grievance complainants also gave the appearance of bias. In the
e-mail, sent just days after the Master Grievance was distributed, Elzig unequivocally said
"that the issues outlined in the [Master Grievance] complaint are completely false." She also
suggested that the submission of the Master Grievance was motivated by a personal dispute
between her and Governing Board member Rodriguez. Elzig's comments, made before any
thorough investigation into the 21 enumerated complaints in the Master Grievance could have
11 The record shows that N onnan' s counsel used a portion of the transcript from the
Braden hearing in an attempt to discredit Elzig' s testimony during the PERB hearing. This
strongly suggests that Norman was in possession of the transcript from the Braden hearing.
28

reasonably been completed, also suggests bias. 	In Jurupa (Lukkarila), supra, PERB
Decision No. 2283, the Board held that a substantially similar e-mail, in conjunction with other
factors (such as timing and departure for existing practices), suggested nexus. (Id. at p. 26.)
13
12
In addition, there is reason to be suspicious
of
the way that the District handled its
evidence supporting Norman's dismissal. In
Novato, supra, PERS Decision No. 210, the
Board held that a principal's "secret file" about an employee's union activity and job
performance was evidence
of
an unlawful motive where the documents in the file were never
discussed with the employee and appeared to·be inconsistent with the employer's personnel
file practices. (Id. at pp. 20-21.) In Baldwin Park Unified School District (1982) PERB
Decision No. 221 (Baldwin Park), an employer refused to show two employees any
documentation about accusations made against them and also declined to interview either one
during investigation
of
those accusations. The Board found those actions suggested "the
District was not concerned with determining the truth
of
the matter and resolving the problem
in the most expeditious way, but instead was determined to exact punishment on [the
employees]." (Id. at pp. 16-17.)
In
Woodland Joint Unified School District ( 1987) PERB
Decision No. 628 (Woodland), the Board held that an employer's maintenance
of
a "working
file," separate from the traditional personnel file may not be evidence
of
nexus where it was
12
It is recognized that Elzig testified that the purpose
of
the e-mail was merely to
address the accusations in the Master Grievance made against her personally. However, the
cited portions
of
her June 25, 2010 remarks make no such distinction.
13 It is not found, however, that Elzig's June 25, 2010 e-mail demonstrates nexus
for Norman's denial
of
personal necessity leave allegation in case number LA-CE-5593-E.
At least two reasons support this conclusion. First, unlike in Jurupa (Lukkarila), no other
factors suggest nexus in case number LA-CE-5593-E. Second, the issues surrounding the
June 25, e-mail were similar in kind to Norman's claims in case number LA-CE-5744-E in that
both involved Elzig's handling of personnel matters and response to complaints. In case
number LA-CE-5593-E, on the other hand, Elzig had no clear understanding about the
relationship between Norman's leave request and the District's personnel or CBA practices
until after she denied the request. The Master Grievance notably did not involve the CBA,
which was the primary basis Elzig used to deny Norman's leave request.
29

consistent with existing practice. (Id. at p. 44, fn. 21.) However, the employer's failure to
provide the content
of
that file to an employee so she could timely and intelligently respond to
discipline was evidence
of
nexus, absent a reasonable explanation. (Id. at p. 43.) In that case,
the employee was permitted to respond to a disciplinary letter, but was not given the parent
complaints that fonned the substance
of
that letter. (Ibid.)
In the present case, the District maintains that its Summary
of
Allegations documents
were part
of
its fair and balanced investigation process. However, the November 10,2011
Summary
of
Allegations, which formed the basis for the District's decision to dismiss Norman,
attached as exhibits some, but not all, written complaints and interview notes that the District
possessed at the time. For example, the Summary
of
Allegations referred to a Febmary 24,
2009 incident where Norman allegedly threw a student's belongings out
of
the classroom. The
District had student statements about this incident, but it did not include them in the Summary
of
Allegations. Likewise, the Summary
of
Allegations included claims that female students
were uncomfortable with the way Norman looked at them. Those claims were supported, in
part, by Principal Mendez's November 2, 2011 interview notes, but not shared with Nonnan
at
the time. These docmnents and other evidence were not given to Norman until after the
District's investigation ended and it decided to proceed with dismissal. None
of
Norman's
prior discipline or Summaries
of
Allegations included student statements or interview notes.
The District explained that it gives only a synopsis
of
its investigation to employees in
the Summary of Allegations because it would be too difficult for the employee to absorb all the
information. This explanation is unconvincing under the facts
of
this case for at least three
reasons. First, upon receiving his first Summary
of
Allegations docmnent in 2007, Norman
notified Elzig that he could not cogently respond because the District did not provide enough
information and documentary evidence. Thus, Elzig was aware that her desire to shield him
from the quantity of its investigatory information was unwelcome. Second, the District did not
30

act consistep.tly with this reasoning. The November 10, 2011 Summary
of
Allegations,
included some, but not all, documents supporting the accusations. This inconsistency casts
doubt on her explanation. (See Chula Vista, supra, PERB Decision No. 2221, pp. 16,
19
[employer's inconsistent explanations for its conduct evidenced nexus].) Third, the District
had no explanation for withholding documentary evidence from Norman for prior discipline
even after the investigations were completed. Nor did it explain why it waited until the
Dismissal Notice to provide Norman with that material. As in Woodland, supra, PERB
Decision No. 628, the District failed to provide a reasonable explanation for its practice
of
withholding documentary evidence from Norman until after its investigations ended. And as in
Baldwin Park, supra, PERB Decision No. 221, the District's failure to provide Norman those
documents, when he clearly sought that information, raises questions about whether the
District's investigation process was designed to elicit the truth.
It also appears as though Elzig's student interviews were not sufficiently
comprehensive. An employer's cursory or inadequate investigation may be evidence
of
nexus.
(North Sacramento, supra, PERB Decision No. 264, p. 26.) Here, Elzig interviewed between
15 and 20
of
Norman's students but she said she only asked detailed questions
if
the students
informed her
of
complaints or concerns with Norman. She did not ask students who said they
liked Norman to confirm or deny other students' complaints. Her failure to do so suggests that
she was only interested in corroborating, not disproving students' complaints. In addition,
Elzig admitted that some students said during their interviews that they "liked" Norman or that
he was "cool," but she did not include any record
of
those comments in the investigation
materials provided to Nonnan. This further suggests an incomplete investigation.
The District maintains its interview practices was not improper because Elzig's
interviews in Norman's case were consistent with both her training and with the District's
investigation practices. In City
of
Santa Monica (2011) PERB Decision No. 2211-M
31

(Santa Monica), the Board found no evidence
of
nexus in an employer's failure to interview
the charging party prior to releasing
him
from probation. (Id. at p. 15.) The Board reasoned
that the
city's
decision was consistent with existing investigation practices. (Ibid., citing
County ofRiverside (2011) PERB Decision No. 2184-M, State
of
California (Department
of
Health Services) (1999) PERB Decision No. 1357-S.)
In
that case, no other evidence
of
nexus
was present. (Id. at p. 15.) The District's argument is unpersuasive under
the
facts
of
this case
because the District
in
this matter purported to conduct a full investigation into the claims
against Norman, only to artificially stop pursuing lines
of
questioning that may have benefited
Norman.
In addition, unlike in Santa Monica, supra, PERB Decision No. 2211-M, here, there
was other evidence
of
unlawful motive. This includes, Elzig's admitted propensity to distrust
Norman, her e-mail demonstrating bias against those who complain about District practices,
and the District's failure to disclose derogatory information about
Nonnan
during its
investigation. Elzig's failure to thoroughly interview students in this case only exacerbates
these other concerns, none
of
which were present
in
Santa Monica. Considering the record as a
whole,
Nonnan
has established a causal connection, or nexus, between his protected activities
and the Dismissal Notice. This is sufficient to establish a prima facie case for retaliation.
14
14
Nonnan also alleges two instances where the District departed from existing
practices. First, he claims that the District failed to refer parent complaints dire.ctly to him for
a meeting as required by the CBA. However, the CBA complaint policy only requires such a
meeting "whenever possible" and Nonnan never elaborated on how that term was applied.
Elzig credibly testified that a meeting would be inappropriate in this case due to the serious
allegations involved. This is not sufficient to demonstrate a deparhire from existing practices.
Second, Norman contends that the District's failure to include a signed verification
of
the
Dismissal Notice after the Governing Board approved it was a departure from the District's
discipline practices. In Regents
of
the University
of
California (2012) PERB Decision
No. 2302-H, the Board held that an employer's failure to properly retain an employee's self-
evaluation fonn was merely a record-keeping error and had no bearing on the discipline he
received. (Id. at proposed decision, p. 25, fn. 7.) Similarly in this matter, the District's initial
failure to provide the verification form appears from the evidence to be merely an oversight
32

D. 	The District's Burden
If the charging party establishes all the elements of a prima facie case, the burden then
shifts to the respondent to prove by a preponderance of the evidence that it would have taken
the same course of action even if the charging party did not engage in any protected activity.
(Santa Ana Unified School District (2012) PERB Decision No. 2235, citing Novato, supra,
PERB Decision No. 210; Martori Brothers Distributors v. Agricultural LaborRelations Bd.
(1981) 29 Cal.3d 721, 729-730 (Martori Bros.).) In cases where an adverse action appears to
have been motivated by both protected and unprotected conduct, the issue is whether the
adverse action would have occurred "but for" the protected acts. (Los Angeles County
Superior Court, supra, PERB Decision No. 1979-C.) The focus of the "but for" analysis
"is not whether the employer had a lawful reason for the action but whether it took the action
for an unlawful reason." (Baker Valley Unified School District (2008) PERB Decision
No. 1993, citing McFarland Unified School Dist. v. Public Employment Relations Bd. (1991)
228 Cal.App.3d 166, 169.)
Based on the record in this matter, it appears as though Elzig may not have conducted a
complete or objective investigation. However, "the mere presence of animus is not
determinative" in discrimination cases. (Bellevue Union Elementary School District (2003)
PERB Decision No. 1561 (Bellvue), proposed decision, p. 37.) In Bellvue, the Board found
evidence ofretaliation, including the principal's bias against union activity and the district's
failure to disclose or adequately investigate parent complaints. (Id. at proposed decision,
pp. 35-37.) In spite of that evidence, the Board concluded that retaliation was not the true
motive behind the non-reelection decisions given that there was no apparent discrimination
against other teachers who had engaged in similar union activity and where the employer had
that did not affect either the content of the Dismissal Notice or on Norman's ability to respond.
Under these circumstances, these arguments do not support Norman's retaliation claim.
33

legitimate concerns about work performance that predated the protected activity. (Id. at
proposed decision, p. 48.)
Virtually all
of
the evidence
of
nexus in this matter is localized to either the conduct or
the opinions
of
Elzig. There is no evidence, for instance, that Principal Mendez, Vice Principal
Prince-Eggeter, or any
of
Norman's students were aware
of
Norman's protected activity or had
any motive to retaliate against him. And although it is true that Elzig drafted the Dismissal
Notice, a close examination
of
this document reveals that her involvement was limited. For
example, even though Elzig's interview practices were questionable, Elzig's interview notes
comprised only 2
of
the more than 60 exhibits supporting the charges against Norman. Most
of
the actual content
of
the charges raised in the Dismissal Notice were based on the interviews
conducted and statements collected by Prince-Eggeter, Mendez, or other staff. Only 6
of
the
38 charges levied against Norman
in
the Dismissal Notice relied solely on Elzig's notes.
Of
those six charges, most were corroborated by student statements or testimony. In short, the
appearance
of
bias or retaliatory motive by Elzig notwithstanding, the Dismissal Notice
appears to contain an accurate account
of
student complaints made against Norman. The
proper inquiry, therefore, is whether those complaints provided a legitimate non-retaliatory
reason for Norman's dismissal. (See Healdsburg, supra, PERB Decision No. 1185, proposed
decision, p. 67 [despite evidence
of
nexus, dismissal was justified because the charges against
the employee were "for the most part,
true'l)
In Fall River Joint Unified School District (1998) PERB Decision No. 1259
(Fall River), the Board held that an employer was justified
in
removing an employee from a
school site where it had legitimate concerns over how that employee's conduct affected the
integrity
of
its education program. In Santa Monica, supra, PERB Decision No. 2211-M, the
Board found that, had the charging party established a prima facie case for retaliation, the
employer would have nevertheless been justified in terminating his employment because of the
34

long history of complaints made by the employer's customers coupled with the employer's
concerns for customer and public safety. (Id. at p. 9.) The Board also noted that the charging
party had been warned repeatedly of his performance deficiencies. (Id. at p. 17 .) In County
of San Joaquin (Health Care Services) (2004) PERB Decision No. 1649-M (County of
San Joaquin), the Board held that an employer was justified in terminating a doctor due to
performance problems and "a pattern of complaints about offensive comments made by [the
doctor] during patient examinations, where sensitivity is paramount." (Id. at p. 3; see also
Martori Bros., supra, 39 Cal.3d at pp. 724, 730 [holding termination justified in spite of union.
organizing activity because employee screamed obscenities and threatened his supervisor].) 	·
In contrast, the Board found no adequate justification for termination where the issues
raised in the notice of tennination were untrue, exaggerated, and/or based entirely on hearsay.
(Jurupa Community Services District (2007) PERB Decision No. 1920-M, proposed decision,
p. 20.) The Board also noted that the employer's only supporting witnesses were managers
and supervisors. (Ibid.) In Chula Vista, supra, PERB Decision No. 2221, a school district
asserted that its adverse action was justified because of a teacher's lack of "interpersonal
skills." The Board found that explanation was unsupported by the record given that no one had
observed any problems with her conduct in the classroom, and she had never been warned of
any performance deficiencies in the past. (Id. at pp. 21-22.)
Here, as in Santa Monica, supra, PERB Decision No. 2211-M, the District had a long
record of complaints filed against Norman, many of which predated the protected activity
alleged in the two PERB complaints. As in that case, and unlike in Chula Vista, supra, PERB
Decision No. 2221, the District here warned Nonnan multiple times from 2007 through 2010
that it would not tolerate his confrontational nature with others, yelling, and inappropriate
comments and contact with students. Those warnings included multiple conferences,
35

memoranda, a letter of concern, a notice of unprofessional conduct, and a performance
evaluation. All these documents issued before Norman submitted the Master Grievance.
Despite these warnings, the District continued to receive student complaints about
Norman's conduct during the 2011-2012 school year. Multiple students complained that he
was, once again, yelling at students and name-calling in class. Students also complained that
he inappropriately stared at female students' bodies. Students expressed feeling scared or
uncomfortable in Norman's presence. All of these claims were supported by written
statements. Similar to County of San Joaquin, supra, PERB Decision No. 1649-M, these more
recent complaints were particularly troubling because of the sensitive nature of the issues
involved. And, like in Fall River, supra, PERB Decision No. 1259, District administrators and
staff had concerns about how Norman's classroom conduct affected the integrity of the
District's education programs.
Unlike in Juntpa Community Services District, supra, PERB Decision No. 1920-M, the
complaints made against Norman were not overblown or supported only by managers. Rather,
13 students testified about their complaints with Norman's teaching performance between the
2008-2009 and the 2011-2012 school years. For the most part, their testimony was credible
and honest. Even though, some students admitted to receiving failing grades from Nonnan,
which might in some circumstances give rise to bias or a motive to lie, the students were
surprisingly forthright. For example, one student, L.R., admitted to cheating on Norman's
exams. She also acknowledged that Norman could be a good teacher and that she sometimes
talked too much in class. Other students made similar admissions including stating_that
Norman's students were unruly and difficult to corral. These statements, 'Sometimes made
against the students' own interests, support their credibility.
Another factor lending to the students' credibility was their remarkable consistency.
Even though the students ranged from four different school years, all 13 students testified that
36

Norman appeared angry in class and frequently yelled at them in a high volume. In addition,
10 of the 13 students testified that Norman stared inappropriately at female students' bodies,
including their private parts. Eight of those students testified about the inappropriate names
Nonnan used for students, including "stupid ass," "big mouth," "lazy," "sexy beast," "hot,"
"weirdo," "retarded," and "cheesy biscuits." Four students testified about being scared or
uncomfortable around Norman. Two testified that Norman threw their belongings out of his
classroom. Their testimony largely mirrored the allegations made in the Dismissal Notice and
was further corroborated by other District employees, including other non-administrators.
In addition to these complaints, Norman was also accused of downloading
pornographic images to his District computer in violation of District policy. That accusation
was supported by a computer forensics report and a forensics examiner who testified against
Norman in the CPC hearing.
Norman disputes almost all of the complaints, but there are multiple reasons to doubt
his testimony. Norman clearly has a far greater motive to lie and deny wrongdoing. In
addition, his testimony about those denials 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. For example, Norman never explained how he reacted when he caught
students cheating or talking out of place. Nor did he present any evidence about his demeanor
or classroom management that was inconsistent with the students' complaints. His response to
the November 2011 Summary of Allegations was also conclusory, devoting only one sentence
to the substance of all the charges against him. He never responded to the December 15, 2011
Summary of Allegations and never failed to attend either his own scheduled Skelly hearing or
the District Governing Board meeting concerning the Draft Notice. In light of these facts, it is
concluded that the District issued the Dismissal Notice because of the numerous credible
37

complaints about
Norman's
treatment
of
students
and other
misconduct,
and not
his protected
activity.
The
District has
therefore
met
its
burden
of
rebutting the
prima
facie case.
PROPOSED ORDER
Based upon
the
foregoing findings
of
fact and
conclusions
oflaw
and the
entire
record in this matter, the complaints and underlying unfair practice charges in Case
Nos. LA-CE-5593-E and LA-CE-5744-E, Jefferey L. Norman
v.
Jurupa Unified School
District, are
hereby DISMISSED.
Right to Appeal
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed Decision
and Order shall become final unless a party files a statement
of
exceptions with the Public
Employment Relations Board (PERB
or
Board) itself within 20 days
of
service
of
this Decision. The
Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, th~ statement
of
exc_eptions should identify by page
citation or exhibit number the portions
of
the record,
if
any, relied upon for such exceptions. (Cal.
Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB business
day. (Cal. Code Regs.,
tit
8,
§§
32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the close
of
business together with a Facsimile Transmission Cover Sheet or received by electronic mail before
the close
of
business, which meets the requirements
of
PERB Regulation 32135(d), provided the
filing party also places the original, together with the required number of copies and proof of service,
38

in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090, 32091 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served on a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140, and
32135, subd. (c).)
39