San Leandro Unified School District (PERB 1924E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

GREGORY K. MANDELL,
Charging Party, Case No. SF-CE-2589-E
Vv. PERB Decision No. 1924
SAN LEANDRO UNIFIED SCHOOL DISTRICT, October 1, 2007
Respondent.

Appearances: Gregory K. Mandell, on his own behalf; Ruiz & Sperow by Eduard E. Erslovas,
Attorney, for San Leandro Unified School District.

Before Neuwald, Chair; Shek and McKeag, Members.

DECISION

McKEAG, Member: This case comes before the Public Employment Relations Board

(PERB or Board) on appeal by Gregory K. Mandell (Mandell) of a Board agent’s dismissal
(attached) of his unfair practice charge. The charge alleged that the San Leandro Unified
School District (District) violated the Educational Employment Relations Act (EERA)! by
discriminating against Mandell when he filed a grievance. Mandell alleged that this conduct
constituted a violation of Government Code sections 3512, 3515, 3515.5, 3519, 3543 and

3543.12

'RERA is codified at Government Code section 3540, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

*Government Code sections 3512, 3515, 3515.5 and 3519 are located in the Ralph C.
Dills Act (Dills Act) which is codified at Government Code section 3512, et seq. The Dills
Act generally applies to state employees. (Gov. Code secs. 3512, 3515.) Because this case
involves a public school employer and a public school employee, these provisions of the Dills
Act do not apply. Accordingly, all allegations associated with alleged violations of these
sections are dismissed.

We have reviewed the entire record in this matter, including the initial unfair practice
charge, the amended charge, the warning and dismissal letters, Mandell's appeal (along with
the first second and third addenda) and the District's response.3 Based on this review, we find
the Board agent's dismissal free from prejudicial error and, therefore, adopt the warning and
dismissal letters as a decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. SF-CE-2589-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Neuwald and Member Shek joined in this Decision.
3Mandell also filed a fourth addendum which the PERB Appeals Assistant determined
was not timely filed, and consequently, did not accept. On appeal, the Board found Mandell
did not show good cause to excuse his late filing and denied his request to accept the fourth
addendum. 	(San Leandro Unified School District (2007) PERB Order No. Ad-366.)
Accordingly, the fourth addendum was not considered by the Board in making this decision.
2

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
(
PUBLIC EMPLOYMENT RELATIONS BOARD
,,c"''"' "''4,,0 	San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-622-1023
Fax: (510) 622-1027
March 19, 2007
GREGORY K. MANDELL
Re: 	Gregory K. Mandell v. San Leandro Unified School District
Unfair Practice Charge No. SF-CE-2589-E
DISMISSAL LETTER
Dear Mr. Mandell:
The above-referenced unfair practice charge was filed on December 27, 2006. Gregory K.
Mandell alleges that the San Leandro Unified School District (District or SLUSD) violated the
Educational Employment Relations Act (EERA) at section 3543.5 by discriminating against
him for his protected activity. 	Charging Party amended the charge on March 6, 2007. In both
the original and amended charges, Mr. Mandell alleges that the employer's conduct has also
violated Government Code sections 3512, 3515, 3515.5, 3519, 3543 and 3543.1.
My investigation of both the original and amended charges revealed the following. 	On August
28, 2006, Mr. Mandell was given a verbal offer of employment, and provided a membership
enrollment form for CTA. On August 30, 2006, Mr. Mandell was given a Statement of
Temporary Employment by the District, stating that he was hired as a temporary intern teacher
through the District's intern program. Mr. Mandell was hired to teach math.
During a meeting on September 12, 2006, Mr. Harp, the Bancroft Middle School Vice
Principal, criticized Mr. Mandell's classroom rules,which were posted in his classroom and
were also distributed to students in a handout. Mr. Harp believed that the rules were too
subjective and contained exceptions. One of the rules disputed by Mr. Harp was Mr.
Mandell's rule that "disrespectful conduct towards others will not be tolerated."
On September 13, 2006, Mr. Harp conducted a classroom observation of Mr. Mandell. During
the observation, Mr. Mandell was instructing his students how to place a proper heading on
their assignments. 	On September 14, 2006, Mr. Harp met with Mr. Mandell to discuss the
observation. During this after school meeting in Mr. Harp's office, Mr. Harp raised several
concerns with Mr. Mandell. Mr. Harp instructed Mr. Mandell that he should be spending
instructional time teaching math, and that it was not appropriate for him to spend instructional
time teaching students how to place a proper heading on their homework. Mr. Harp also
informed Mr. Mandell that he should not be assigning his students independent work unless he
was actively walking around the room providing assistance to them. Mr. Harp also criticized
Mr. Mandell' s practice of taking a point off of a student's homework for failing to write a

SF-CE-2589-E
March 19, 2007
Page 2
proper heading. Finally, Mr. Harp instructed Mr. Mandell that he needed to vary his teaching
techniques, so that students were working both in teams and independently.
On September 17, 2006, Mr. Mandell sent an email to Mr. Harp. 	The email begins with the
statement, "In accordance with Article V Section
C(l) of
the contract between SLUSD and
SL TA, [San Leandro Teachers Association] I am providing you this formal written grievance.
My assertion is that you have repeatedly violated the non-discrimination clause
of
Article II
of
the SLUSD/SL TA contract. Below is a list
of
your actions toward me which prove my
assertion." What follows are four "discriminatory acts" by Mr. Harp and one "miscellaneous"
complaint. The first three "discriminatory acts" are based on Mr. Harp's criticism
of
Mr.
Mandell's classroom teaching methods and performance, based on the above discussion
of
Mr.
Harp's observations and comments on September 12,
13
and 14. The "miscellaneous"
complaint refers to an incident during an after-school meeting between Mr. Mandell and Mr.
Harp in which the two men disagreed over basic teaching methods.
On September 25, 2006, Mr. Mandell filed a complaint about Bancroft Middle School
Administrators. This complaint apparently addressed Mr. Mandell's belief that he was being
denied his right to suspend disruptive students from his classroom. A meeting was scheduled
for September 27, 2006 with Mr. Mandell, Mr. Harp, and two union representatives to discuss
Mr. Mandell's September
17
email. The meeting was cancelled on the morning
of
September
27, however, due to a lack
of
substitute teachers to cover the classrooms
of
all those teachers
who would be in attendance at the meeting. The meeting was rescheduled for September 29,
2006. On the morning
of
September 29, Mr. Mandell, Principal Mary Ann Valles, Union
Representative Tom Morse, and Assistant Superintendent Mike Martinez were in attendance.
The concerns raised in the email were not discussed at the meeting. 	Instead, Ms. Valles
informed Mr. Mandell that he was being fired, for "performance concerns," and that he was
"not a good fit," for the job. Ms. Valles refused to provide any details. Mr. Mandell states that
he was not informed
of
any performance related issues, prior to this meeting. 1
In its response, the District makes several arguments. First, the District argues that Mr.
Mandell never filed a grievance - rather, he sent several emails to administrators, complaining
that the District was failing to comply with the Education Code with regard to student
suspensions. 	Second, the District argues that Mr. Mandell resigned, and that the District never
took any adverse action against him. Third, the District argues that even assuming Mr.
Mandell had established that he engaged in protected activity and the District took adverse
actions against him, Mr. Mandell has failed to establish any nexus between his protected
activity and the adverse acts. Finally, the District argues that Mr. Mandell had misinformed
the District about his eligibility to teach, and when the District learned that Mr. Mandell was
not in a teacher credential program in September 2006, it would have fired him regardless of
his protected activity.
This statement contradicts Mr. Mandell's own statements in the email to Mr. Harp
where he disputes Mr. Harp's criticisms of his work performance.

SF-CE-2589-E
March 19, 2007
Page 3
The District attaches Article V
of
the collective bargaining agreement. The salient portions
of
the agreement are
as
follows:
A. Definition
1.	
A 'grievance' is a formal written allegation by a Member
of
the Bargaining Unit that he or she has been adversely affected by
a violation or misinterpretation
of
a written provision
of
this
Agreement. A similar allegation filed by the Association shall
also qualify as a "grievance." Appeal
of
any law, district policy,
or administrative decision not covered by this Agreement shall
not be subject to the grievance procedure.
5. A "grievance form" is a mutually agreed upon form between
the District and the Association that should be used when filing a
formal grievance.
C. Formal Level I
1.	
A formal written grievance must be presented to the
immediate supervisor. This will included [sic] a clear, concise
statement
of
the alleged grievance, the circumstances involved,
the decision rendered at the informal conference, and the specific
remedy sought. Formal grievances are to be filed on the agreed
upon grievance form.
2. A written statement must be presented to the immediate
supervisor. This statement shall be a clear, concise statement
of
the alleged grievance, the circumstances involved, the decision
rendered at the informal conference, and the specific remedy
sought.
3. A conferee may be present at this or any other level
of
the
procedure.
4. The immediate supervisor shall communicate his/her decision
to the employee in writing within ten (10) days after receiving the
written statement.
If
the immediate supervisor does not respond
within the time limits, the grievant may appeal to the next level.
5. Within the above time limits either party may request a
personal conference.
The grievance procedure ends in binding arbitration.

SF-CE-2589-E
March 19, 2007
Page 4
Respondent also attaches copies of Mr. Mandell's October 2, 2006 resignation, and a February
12, 2006 print out from the California Commission on Teacher Credentialing web page, stating
that Gregory Keith Mandell holds no credentials. In the comments section of the letter of
resignation that Mr. Mandell provided on October 2, 2006, Mr. Mandell wrote the following:
Mike Martinez, Asst. Superintendent, made the false statement
that I am not emolled in National University's teacher credential
program. 	Made t[he] statem[ent] on 9/29/[06] at the 8[:30]
meeting. 	(Emphasis in original.)
A note appears at the bottom of the form in a different handwriting that states, "Spoke to Greg
re: his statement that I made a 'false statement.' He indicated that he made an error and he was
not emolled in a Program. MM 10/2/06."
Mr. Mandell replied to the District's position statement, refuting some of the claims made
therein. 	In particular, Mr. Mandell states that on September 29, Ms. Valles stated to him in the
presence of witnesses that she was exercising her right under the Education Code to terminate
his employment, effective immediately. He was also ordered to hand over his building and
classroom keys at the conclusion of the September 29 meeting. He further states that the
resignation he submitted on October 2, 2006 was 'forced' as a result of his termination on
September 29. He argues that the District's conduct establishes that it did take adverse actions
against him, and that he did not quit - he was fired.
Charging Party also provides evidence that he passed the CBEST exam administered to all
credentialed teachers, holds a PhD in Chemistry from UC Davis, and has at least 18 credits in
mathematics, the subject matter he was assigned to teach. These three circumstances,
Charging Party states, satisfy the California Commission on Teacher Credentialing's
requirements for "certification prior to the first day of [a teacher's] employment." Charging
Party states that his employment with Respondent was contingent upon demonstrating that he
had met these minimum requirements. Having satisfied these three requirements, Charging
Party argues that the District's reasons for terminating his employment mid-year were a pretext
for its real reason - that of discriminating against him for his protected activity.
Finally, Charging Party states that at the time he was fired, the reasons he was given were that
the District had "performance concerns," and he was "not a good fit" for the job.
Discussion
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.)

SF-CE-2589-E
March 19, 2007
Page 5
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (Horth 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.)
Charging Party has failed to establish a nexus between the protected conduct and the adverse
act for the following reasons. 	By his own admission, Mr. Mandell was informed at the time
that he was terminated, that one
of
the reasons he was being terminated was because he was
not enrolled in a teacher credentialing program. Mr. Mandell states in his charge that he was
also told during the September 29 meeting that there were some performance issues and he was
not a good fit [for the job]. That Mr. Mandell was given multiple reasons for his termination
does not establish that the District gave inconsistent or contradictory justifications for his
termination. Rather, it appears that throughout the time frame in question, Respondent has
consistently stated that Mr. Mandell' s lack of status in a credentialing program was grounds for
termination.
Additionally, Charging Party claims that he has established the employer's cursory
investigation of the employee's misconduct. However, Mr. Mandell was never accused of

SF-CE-2589-E
March 19, 2007
Page 6
"misconduct" as such - he was informed that there were performance issues, and that he was
not currently emolled in a credentialing program. As I pointed out in my February 16, 2007
Warning Letter, attached, Charging Party fails to provide any facts that the District failed to
follow the proper policy with regard to terminating teachers for failure to maintain proper
certification. This deficiency was not corrected in Mr. Mandell's First Amended Charge.
Finally, Charging Party claims that he has established that the employer's justification for its
conduct at the time was exaggerated, vague or ambiguous. This argument is based on
Charging Party's claim that his inactive status in National University's credentialing program
did not disqualify him from eligibility to teach in California. The veracity
of
this claim is not
at issue. Whether the employer properly construed the California Commission on Teacher
Credentialing's requirements for proper teacher certification does not establish that the
employer did not, in fact, terminate him for its belief that he failed to maintain an active status
in a credentialing program.
Therefore, I am dismissing the charge based on the facts and reasons contained in this and my
February 16, 2007 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.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section l 1020(a).) A document
is also considered "filed" when received by facsimile transmission before the close
of
business
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
(916) 322-8231
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-2589-E
March 19, 2007
Page 7
(
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.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also 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.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By~
Alicia Clement
Regional Attorney
Attachment
cc: Eduard Erslovas, Attorney
Ruiz & Sperow, LLP

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-622-1023
Fax: (510) 622-l 027
February 16, 2007
Gregory
K.
Mandell
Re: 	Gregory
K.
Mandell v. San Leandro Unified School District
Unfair Practice Charge No. SF-CE-2589-E
WARNING LETTER
Dear Mr. Mandell:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 27, 2006. Gregory
K.
Mandell alleges that the San
Leandro Unified School District (District) violated the Educational Employment Relations Act
(EERA) 1 by discriminating against him for his protected activity.
My investigation revealed the following. 	Mr. Mandell was a math teacher at Bancroft Middle
School in the San Leandro Unified School District and a member
of
the certificated bargaining
unit represented by the San Leandro Teachers' Association.
On September 18, 2006, Mr. Mandell filed a grievance against Bancroft Middle School Vice
Principal Alex Harp. 	On September 25, 2006, Mr. Mandell filed a complaint to Bancroft
Middle School Administrators. Both complaints apparently addressed Mr. Mandell's belief
that he was being denied his right to suspend disruptive students from his classroom. A
meeting was scheduled for September 27, 2006 with Mr. Mandell, Mr. Harp, and two union
representatives to discuss Mr. Mandell's grievance. The meeting was cancelled on the
morning
of
September 27, however, due to a lack
of
substitute teachers to cover the classrooms
of
all those teachers who would be in attendance at the meeting. The meeting was rescheduled
for September 29, 2006. On the morning of September 29, Mr. Mandell, Principal Mary Ann
Valles, Union Representative Tom Morse, and Assistant Superintendent Mike Martinez were
in attendance. The grievance was not discussed at the meeting. Instead, Ms. Valles informed
Mr. Mandell that he was being fired, for "performance concerns," and that he was "not a good
fit," for the job. Ms. Valles refused to provide any details. Prior to this meeting, Mr. Mandell
was not informed of any performance related issues.
In its response, the District makes several arguments. First, the District argues that Mr.
Mandell never filed a grievance - rather, he sent several emails to administrators, complaining
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.

SF-CE-2589-E
February 21, 2007
Page 2
that the District was failing to comply with the Education Code with regard to student
suspensions. 	Second, the District argues that Mr. Mandell resigned, and that the District never
took any adverse action against him. Third, the District argues that even assuming Mr.
Mandell had established that he engaged in protected activity and the District took adverse
actions against him, Mr. Mandell has failed to establish any nexus between his protected
activity and the adverse acts. Finally, the District argues that Mr. Mandell had misinformed
the District about his eligibility to teach, and when the District learned that Mr. Mandell was
not in a teacher credential program in September 2006, it would have fired him regardless of
his protected activity.
The District attaches Article V of the collective bargaining agreement. The salient portions of
the grievance are as follows:
A. Definition
1. A 'grievance' is a formal written allegation by a Member of
the Bargaining Unit that he or she has been adversely affected by
a violation or misinterpretation of a written provision of this
Agreement. A similar allegation filed by the Association shall
also qualify as a "grievance." Appeal of any law, district policy,
or administrative decision not covered by this Agreement shall
not be subject to the grievance procedure.
5. A "grievance form" is a mutually agreed upon form between
the District and the Association that should be use when filing a
formal grievance.
C. Formal Level I
1. A formal written grievance must be presented to the
immediate supervisor. This will included [sic] a clear, concise
statement of the alleged grievance, the circumstances involved,
the decision rendered at the informal conference, and the specific
remedy sought. Formal grievances are to be filed on the agreed
upon grievance form.
2. A written statement must be presented to the immediate
supervisor. This statement shall be a clear, concise statement of
the alleged grievance, the circumstances involved, the decision
rendered at the informal conference, and the specific remedy
sought.
3. A conferee may be present at this or any other level of the
procedure.

SF-CE-2589-E
February 21, 2007
Page 3
4. The immediate supervisor shall communicate his/her decision
to the employee in writing within ten (10) days after receiving the
written statement. If the immediate supervisor does not respond
within the time limits, the grievant may appeal to the next level.
5. Within the above time limits either party may request a
personal conference.
The grievance procedure ends in binding arbitration.
Respondent also attaches copies of Mr. Mandell's October 2, 2006 resignation, and a February
12, 2006 print out from the California Commission on Teacher Credentialing web page, stating
that Gregory Keith Mandell holds no credentials.
Mr. Mandell replied to the District's position statement, refuting some of the claims made
therein. 	In particular, Mr. Mandell states that on September 29, Ms. Valles stated to him in the
presence of witnesses that she was exercising her right under the Education Code to terminate
his employment, effective immediately. 	He was also ordered to hand over his building and
classroom keys at the conclusion of the September 29 meeting. 	He further states that the
resignation he submitted on October 2, 2006 was 'forced' as a result of his termination on
September 29. He argues that the District's conduct establishes that it did take adverse actions
against him, and that he did not quit 	he was fired.
Discussion
To demonstrate a violation of EERA section 3543.S(a), the charging party must show that:
(1) the employee exercised rights under EERA; (2) the employerhad 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: (I) 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

SF-CE-2589-E
February 21, 2007
Page 4
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.]
Charging Party states that he filed a grievance, while Respondent claims that he failed to use
the grievance form, and simply emailed his boss with some complaints about a failure to
comply with the Education Code. Similarly, Charging Party and Respondent dispute the
events on September 29. Even assuming Charging Party filed a valid "grievance" as defined
by the collective bargaining agreement, and that the District fired him on September 29, the
charge fails to present facts establishing that he was fired because he filed a grievance.
Charging Party fails to establish that other teachers have been allowed to work in the absence
of
proper certification; or that the District failed to follow policy with regard to terminating
teachers for failure to maintain proper certification. As Charging Party fails to demonstrate
these or any other nexus factors, the charge must be dismissed.
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.

SF-CE-2589-E
February 21, 2007
Page 5
If
I do not receive an amended charge or withdrawal from you before March 7, 2007, I shall
dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Alicia Clement
Regional Attorney
AC