Los Angeles County Office of Education (PERB 1743E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RODNEY CUMMINGS,
Charging Party,
v.
LOS ANGELES COUNTY OFFICE OF
EDUCATION,
Respondent.
Case No. LA-CE-4394-E
PERB Decision No. 	1743
J a n u a r y 	2 6 , 	2005
Appearances: Rodney Cummings, on his own behalf; Atkinson, Andelson, Loya, Ruud &
Romo by Joshua E. Morrison, Attorney, for Los Angeles County Office of Education.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Rodney Cummings (Cummings) of a Board agent's dismissal
(attached) of his unfair practice charge. 	The unfair practice charge alleged that the
Los Angeles County Office of Education (COE) violated the Educational Employment
Relations Act (EERA)1 by discriminating against him after he filed a grievance.
The Board has reviewed the entire record in this matter, including the unfair practice
charge, the corrected unfair practice charge, the Board agent's warning and dismissal letters,
Cummings' appeal, and COE's response to Cummings' appeal. As a result of our review, the
Board adopts the Board agent's warning and dismissal letters as a decision of the Board itself.
EERA is codified at Government Code section 3540, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

DISCUSSION
COE alleged that Cummings' appeal was untimely. An appeal was due June 16, 2004.
An unsigned document lacking signature and proof of service was filed with the Board on
June 15. The Appeals Office, by letter dated June 22, 2004, gave Cummings until July 6, 2004
to perfect the filing. Instead, the perfected filing contained a date stamp of July 8, 2004.
Under the Board's version of the mailbox rule (PERB Regulation 32130(c))2, Cummings
obtains an additional five days beyond the deadline stated in the June 22 letter to file his
appeal. Thus, July 11, 2004 becomes the actual deadline. In a recent PERB decision, the
Board held that the mailbox rule applied to extensions of time to file documents that were
granted by the Board. (State of California f State Personnel Boards (2004) PERB Order
No. Ad-343-S.) Therefore, the Board finds the appeal timely filed. Next, we turn to issues
raised by Cummings on appeal.
Under PERB Regulation 32615(a)(5), the charge must contain a "clear and concise
statement of the facts and conduct alleged to constitute an unfair practice," i.e., the "who,
what, when, where and how" of an unfair practice. 	(State of California (Department of Food
and Agriculture) (1994) PERB Decision No. 1071-S; United Teachers-Los Angeles (Ragsdale)
(1992) PERB Decision No. 944.) Cummings' charge basically comprises an outline that
includes a list of state and federal statutory sections, Personnel Commission Rules, and
collective bargaining agreement sections alleged to have been violated. None of these alleged
violations pertains to statutes under the Board's jurisdiction. The charge contains general
complaints about student disciplinary problems, Cummings' complaints about these problems,
complaints about site Principal Arthur McCoy and Vice Principal Lanny Mayer, a lack of due
PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
22

process from COE in not providing oral warnings for poor performance appraisals and
reprimands left in Cummings' mailbox, and issuance of the Performance Improvement Plan.
There is little detail that shows any facts stating a prima facie case of discrimination. 	The
warning letter provided much more detail about the nature of Cummings' allegations than the
unfair practice charge and fully advised him of the deficiencies in the unfair practice charge.
However, Cummings did not file an amended charge.
Cummings' appeal and the attached outline contain a few more specifics and add new
allegations and evidence, items with dates preceding the issuance of the warning letter. First,
attached to the appeal is a letter dated February 14, 2003 from the Los Angeles County
Education Association, CTA/NEA (Association) stating that arbitration on a grievance
involving Cummings was placed in abeyance pending discussions and possible resolution of
the grievance by the Association and COE. Cummings states that there has been no action on
his grievance pursuant to this letter. Second, he attaches a copy of a fax dated July 10, 2001
regarding a chemical leak. Third, attached is a confusing timeline of Cummings' "issues"
beginning July 2001. Fourth, he states that COE is in violation of the FRISK documentation
model. There is no description of what this is.
Under PERB Regulation 32635(b), "unless good cause is shown, a charging party may
not present on appeal new charge allegations or new supporting evidence." The new
allegations and evidence predated the warning letter and so were known to Cummings before
filing the appeal but Cummings did not file an amended charge. 	Cummings failed to provide
any evidence in his appeal showing good cause to raise these new items therefore they are
dismissed.
In light of the above, the Board finds that Cummings has failed to state a prima facie
violation of EERA.
3
3

ORDER
The unfair practice charge in Case No. LA-CE-4394-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Shek joined in this Decision.
44

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax:(916)327-6377
May 7, 2004
RODNEY CUMMINGS
P.O. Box 93757
Pasadena, CA 91109
Re: Rodney Cummings v. Los Angeles County Office of Education
Unfair Practice Charge No. LA-CE-4394-E
DISMISSAL LETTER
Dear Mr. Cummings:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 11, 2002. Rodney Cummings alleges that the Los Angeles
County Office of Education violated the Educational Employment Relations Act (EERA)1 by
discriminating against him after he filed a grievance.
Ms. Robertson indicated to you in the attached letter dated April 13, 2004, that the above-
referenced charge did not state a prima facie case. 	You were advised that, if there were any
factual inaccuracies or additional facts which would correct the deficiencies explained in that
letter, you should amend the charge. 	You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it prior to April 22, 2004, the charge would be
dismissed.
You requested and Ms. Robertson granted an extension of time in which to file an amended
charge to April 29, 2004. I have not received either an amended charge or a request for
withdrawal. Therefore, I am dismissing the charge based on the facts and reasons contained in
Ms. Robertson's April 13, 2004 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-4394-E
May 7, 2004
Page 2
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. (Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. 	(Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. 	(See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. 	A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. 	(Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. 	The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. 	(Regulation 32132.)
(

C
LA-CE-4394-E
May 7, 2004
Page 3
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
Robert Thompson
General Counsel
Attachment
cc: 	Steve Andelson

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-7242
Fax:(916)327-6377	PERB
April 13, 2004
Rodney Cummings, Teacher
P.O. Box 93757
Pasadena CA 91109
Re: Rodney Cummings v. Los Angeles County Office of Education
Unfair Practice Charge No. LA-CE-4394-E
WARNING LETTER
Dear Mr. Cummings
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 11, 2002. Rodney Cummings alleges that the Los Angeles
County Office of Education violated the Educational Employment Relations Act (EERA)1 by
discriminating against him after he filed a grievance.
The Collective Bargaining Agreement (CBA) between the District and the Association
contains a binding arbitration provision. On September 18, October 26, and in November of
2001, the District declined to enforce Mr. Cummings recommended suspensions of three
misbehaving students. Additionally, Mr. Cummings resented the District's use of his
classroom to store broken equipment, its failure to provide adequate teaching materials, and its
failure to take action when Mr. Cummings classroom was inundated with toxic fumes.
In efforts to enforce provisions of the CBA, Mr. Cummings filed a grievance on September 25,
and November 27, of 2001. On November 27, 2001 the Association met with the District to
resolve the problems raised in Mr. Cummings grievance. 	Present at the meeting were Mr.
Cummings, Assistant principal Lanny Mayer, and LACEA representatives Kathy O'Neil and
Bob Elkins. On December 6, 2001, Ms. O'Neil gave Mr. Cummings a summary letter of the
meeting which expressed the District's intentions to resolve issues raised by Mr. Cummings
On December 17, 2001, and February 14, 15, and 26 of 2002, The District placed letters in Mr.
Cummings' mailbox. Mr. Cummings received no oral warnings of the notices. However, the
CBA does not specify oral communication is owed by the District to employees it wishes to
address. In a meeting on February 26, 2002, the District warned Mr. Cummings he would be
placed on a 90 day Performance Improvement Plan(PIP). On March 29, 2002, the District
placed Mr. Cummings on PIP. During the meeting the District provide Mr. Cummings with a
form explaining reasons for his placement on PIP. The form also requested that Mr.
Cummings schedule a date for his performance plan review, and stated that the District would
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.
( _---fr.--

r 	(
LA-CE-4394-E 	(
April 13, 2004
Page 2
meet with Mr. Cummings weekly to discuss progress and issues. The District and Mr.
Cummings signed the form acknowledging its receipt.
Based on the following analyses, your charge fails to state a prima facie case showing that the
District violated section 3543.5(a).
To demonstrate a 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; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employees because of the exercise of those rights. 	(Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. 	(Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing 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; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. 	(Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
Evidence of adverse action is also required to support a claim of discrimination or reprisal
under the Novato standard. 	(Palo Verde Unified School District (1988) PERB Decision No.
689.) In determining whether such evidence is established, the Board uses an objective test
and will not rely upon the subjective reactions of the employee. (Ibid.) 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; emphasis added; footnote omitted.]

LA-CE-4394-E
April 13, 2004
Page 3
I. 	Mr. Cummings exercised his right under EERA at 3543.5(a) by filing a grievance against
the District.
A violation of EERA section 3543.5(a) requires that Mr. Cummings exercised a protected
right. Pursuant to the parties' CBA, an employees' filing of a grievance is a protected right.
(North Sacramento School District (1982) PERB Dec. No. 264.) Mr. Cummings filed
grievances against the District on September 25, and November 27, 2001. Thus, Mr.
Cummings' charge satisfies the requirement that he exercised a protected right.
II. The District knew that Mr. Cummings filed the two grievances.
A violation of EERA section 3543.5(a) requires that the District had knowledge that Mr.
Cummings exercised a protected right. The District attended a meeting on November 27,
2001, with Mr. Cummings and LACEA representatives Kathy O'Neil and Bob Elkins to
address Mr. Cummings' grievances. Therefore, the District, as required in section 3543.5(A),
knew that Mr. Cummings filed two grievances against the District.
III. The charge fails to demonstrate that the District sent Mr. Cumming's letters and placed
him on PIP because Mr. Cummings had filed grievances.
a) Letters in Mr. Cummings mailbox
The charge fails to provide sufficient evidence showing that the District sent the letters to Mr.
Cummings in retaliation to his filed grievances. Mr. Cummings filed grievances against the
District on September 25, and November 27, 2001. The District placed the first letter in Mr:
Cummings mailbox on December 17, 2001, only one month after Mr. Cummings filed the
grievance. This establishes that the Mr. Cummings' exercise of his protected right occurred
close in time to the District's placement of letters in his mailbox.
However, although the timing of the employer's adverse action in close temporal proximity to
the employee's protected conduct is an important factor (North Sacramento School District
(1982) PERB Decision No. 264), it does not, without more, demonstrate the necessary
connection or "nexus" between the adverse action and the protected conduct. 	(Moreland
Elementary School District (1982) PERB Decision No. 227.) Since the charge fails to provide
additional evidence showing that the District sent the letters to Mr. Cummings in retaliation to
his filed grievances the nexus requirement is unsatisfied. Mr. Cummings argues he was
wronged by the District's failure to orally notify him of the letters. 	However, the CBA
contains no requirement that the District communicate orally with employees it wishes to
address. Additionally, the charge fails to plead with specificity the letter's contents and
reasons why they evidence that the District was retaliating against Mr. Cummings. Therefore,
the charge fails to establish a nexus between Mr. Cumming's protected right and the District's
actions.

LA-CE-4394-E
April 13, 2004
Page 4
b) Mr. Cummings 'placement on PIP
The charge fails to establish a sufficiently close proximity in time between Mr. Cummings
filed grievance and the District's placement of him on PIP. Mr. Cummings filed grievances
against the District on September 25, and November 27, 2001. In a meeting on February 26,
2002, the District warned Mr. Cummings he would be placed on a 90 day Performance
Improvement Plan.(PIP). On March 29, 2002 the District placed Mr. Cummings on PIP. This
passage of three months before the District told Mr. Cummings he would be placed on PIP,
followed by an additional month before he was officially placed on PIP, attenuates the
connection between Mr. Cummings' filed grievance and his placement on PIP. 	Therefore, the
nexus between the protected activity and the District's reactions is unsatisfied.
Moreover, the charge fails to identify additional factors to evidence that the District placed Mr.
Cummings on PIP in retaliation to his filed grievances. The charge alleges the District failed
to follow the procedure of providing Mr. Cummings with a performance plan review.
However, the PIP form signed by Mr. Cummings details reasons for his placement on PIP and
requests that Mr. Cumming schedule a date for his performance plan review. 	The form also
explained that the District would meet with Mr. Cummings on a weekly basis to discuss
progress and issues.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before April 22, 2004,1 shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Jaclyn Robertsm
Jaclyn Robertson
Board Agent
JJR