Torrance Unified School District (PERB 2007E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
LISA A MENGES,
Charging Party,
V.
TORRANCE UNIFIED SCHOOL DISTRICT,
Respondent.	Respondent.
Case No. LA-CE-5275-E
PERE Decision No. 	2007
March 9, 2009	March 9, 2009
Appearances: 	Lisa A Menges, on her own behalf; Parker & Covert by Spencer E. Covert,
Attorney, for Torrance Unified School District.	Attorney, for Torrance Unified School District.
Before McKeag, Wesley and Dowdin Calvillo, Members.	Before Mckeag, Wesley and Dowdin Calvillo, Members.
DECISION
state a prima facie case.
DOWD IN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (Board) on appeal by Lisa A Menges (Menges) of a Board agent's dismissal ( attached)
of her unfair practice charge. 	The charge alleged that the Torrance Unified School District
(District) violated the Educational Employment Relations Act (EERA)
of her unfair practice charge. The charge alleged that the Torrance Unified School District
1 by: 	(1) releasing
Menges from a probationary position without providing the written notice required by the
District's Personnel Commission Rules; (2) creating a hostile work environment; and (3)
discriminating against her based on race. 	The Board agent dismissed the charge for failure to
state a prima facie case.
discriminating against her based on race. The Board agent dismissed the charge for failure to
The Board has reviewed the entire record in this matter, including but not limited to, the
original and amended unfair practice charge, the District's position statement, the Board
agent's warning and dismissal letters, Menges' appeal and the District's response thereto.
Based on this review, the Board finds the Board agent's warning and dismissal letters to be a
agent's warning and dismissal letters, Menges' appeal and the District's response thereto.
E
1EERA is codified at Government Code section 3540 et	EERA is codified at Government Code section 3540 et seq.
Appearances:
DECISION OF THE
Case No. LA-CE-5275-
Lisa A. Menges, on her own behalf; Parker & Covert by Spencer E. Covert,
Board (Board) on appeal by Lisa A. Menges (Menges) of a Board agent's dismissal (attached)
DOWDIN CAL VILLO, Member: This case is before the Public Employment Relations
Menges from a probationary position without providing the written notice required by the
(District) violated the Educational Employment Relations Act (EERA) by: (1) releasing
District's Personnel Commission Rules; (2) creating a hostile work environment; and (3)
Based on this review, the Board finds the Board agent's warning and dismissal letters to be a
original and amended unfair practice charge, the District's position statement, the Board
The Board has reviewed the entire record in this matter, including but not limited to, the
DECISION
OF CALIFORNIA
TORRANCE UNIFIED SCHOOL DISTRICT,
V .
Charging Party,
LISA A. MENGES,
PERB Decision No. 2007

correct statement of the law and well reasoned, and therefore adopts them as the decision of the
Board itself.
statement
ORDER	ORDER
The unfair practice charge in Case No. LA-CE-5275-E
is
hereby DISMISSED
WITHOUT LEA VE TO AMEND.	WITHOUT LEAVE TO AMEND.
Members McKeag and Wesley joined in this Decision.	Members Mckeag and Wesley joined in this Decision.
2
The unfair practice charge in Case No. LA-CE-5275-E is hereby DISMISSED
of
the law and well reasoned, and therefore adopts them as the decision
of
the
Board itself.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOA 	D
ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
OF
n
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1020
Fax.: (510) 622-1027
Telephone: ($10) 622-1020
December 29, 2008	December 29, 2008
Lisa A. Menges
22706 S. Evalyn Ave.
Torrance, CA 90505
Lisa A. Menges
Re: 	Lisa A. Menges v. Torrance Unified School District
Unfair Practice Charge No. LA-CE-5275-E
DISMISSAL LETTER	DISMISSAL LETTER
Dear Ms. Menges:	Dear Ms. Menges:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 3, 2008.	Board (PERB or Board) on December 3, 2008." L
1 Lisa A. Menges (Menges or Charging Party)
does not identify a specific section of the Educational Employment Relations Act (EERA or
Act)2 that has been violated by the Torrance Unified School District (Dj~trict or Respondent).	.~~~
Charging Party was informed in the attached December 16 Warning Letter (Warning Letter)
that the above-referenced charge did not state a prima facie case. Charging Party was advised
that, if there were any factual inaccuracies or additional facts that would correct the
deficiencies explained in that letter, she should amend the charge. 	Charging Party was further
advised that, unless she amended the charge to state a prima facie case or withdrew it prior to
December 23, the charge would be dismissed.	December 23, the charge would be dismissed.
On December 23, the undersigned called and spoke with Charging Party. Menges stated that
she had just returned from the post office where she had mailed an amended unfair practice
charge in response to the Warning Letter. On December 26, PERB received the amended
unfair practice charge.	unfair practice charge.
December 26 Amendment	December 26 Amendment
The amendment contains the following new information. Charging Party was hired as a 3-hour
food service worker on September 4 by Manager Karen Sopp (Sopp) and assigned to West
High School. Menges had a good working relationship with her supervisors, Janet and
Lourdes, and was extremely appreciative of her job. Charging Party attached an undated
statement by Janet, Food Service Supervisor, wherein Janet praised Menges' level of
High School. Menges had a good working relationship with her supervisors, Janet and
1
All dates refer to calendar year 2008.
2 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.	www.perb.ca.gov.
PER.B
statement by Janet, Food Service Supervisor, wherein Janet praised Menges' level of
The above-referenced unfair practice charge was filed with the Public Employment Relations
CALIFORNIA 	C
~
Oakland, CA 94612-2514
1330 Broadway, Suite 1532
San Francisco Regional Office
Fax; (510) 622-1027
Unfair Practice Charge No. LA-CE-5275-E
Re: 	Lisa A. Menges v. Torrance Unified School District
( 	ARNOLD SCHWARZENEGGER, Governor
~Act) that has been violated by the Torrance Unified School District (District or Respondent).
E
All dates refer to calendar year 2008.
does not identify a specific section of the Educational Employment Relations Act (EERA or
isa A. Menges (Menges or Charging Party)
...
advised that, unless she amended the charge to state a prima facie case or withdrew it prior to
deficiencies explained in that letter, she should amend the charge. Charging Party was further
that, if there were any factual inaccuracies or additional facts that would correct the
that the above-referenced charge did not state a prima facie case. Charging Party was advised
Charging Party was informed in the attached December 16 Warning Letter (Warning Letter)
charge in response to the Warning Letter. On December 26, PERB received the amended
she had just returned from the post office where she had mailed an amended unfair practice
On December 23, the undersigned called and spoke with Charging Party. Menges stated that
food service worker on September 4 by Manager Karen Sopp (Sopp) and assigned to West
The amendment contains the following new information. Charging Party was hired as a 3-hour
Lourdes, and was extremely appreciative of her job. Charging Party attached an undated
the Board's Regulations may be found on the Internet at
ERA is codified at Government Code section 3540 et seq. The text of the EERA and

LA-CE-5275-E
December 29, 2008
Page 2	Page 2
December 29, 2008
enthusiasm and work ethic. 	Sometime thereafter, Menges was transferred by Sopp to South
High School as a 1.5-hour food service worker.	High School as a 1.5-hour food service worker.
Her assignment at South High School turned out to be a bad experience, with Charging Party
describing the situation as a "hostile work environment." Menges felt intimidated and
harassed by her supervisor, Gail Gramling (Gramling), and another co-worker, and suspects
that
harassed by her supervisor, Gail Gramling (Gramling), and another co-worker, and suspects3	
she was being discriminated against because she was not African American. 	Menges did
not seek assistan~e from Sopp or let her know about the intimidation and harassment at her
new work site.	new work site.
Charging Party states that she recently learned that Gramling submitted a statement to her boss,
Lynette Rock (Rock), that the reason for Charging Party's termination on November
21
was
that she was stealing.	that she was stealing.
Charging Party also states that Article 9.3.21
of
the Personnel Commission Rules provides as
follows:	follows:
A probationary classified employee who is to be dismissed shall
be given a written notice oftermination from probationary status
prior to the date on which the probationary period ends.	prior to the date on which the probationary period ends.
Menges was not given a written notice
of
termination.	Menges was not given a written notice of termination.
Discussion	cussion
Charging Party's Burden
of
Proof	Charging Party's Burden of Proof
As stated in the December 16 Warning Letter, PERB Regulation 32615(a)(5)	As stated in the December 16 Warning Letter, PERB Regulation 32615(a)(5)" requires, inter
4 requires, inter
alia, that an unfair practice charge include a "clear and concise statement
of
the facts and
conduct alleged to constitute an unfair practice." The charging party's burden includes
alleging 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, citing United
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions
are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District
(1991) PERB Decision No. 873.)	(1991) PERB Decision No. 873.)
Charging Party has not cured the following deficiencies highlighted in the Warning Letter: (1)
failure to state what section(s) of the EERA has been violated by the District; (2) failure to
provide a statement
of
facts and conduct alleged to constitute an unfair practice under EERA;	provide a statement of facts and conduct alleged to constitute an unfair practice under EERA;
GGramling and the co-worker are African American.
(
ramling and the co-worker are African American.
4 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
enthusiasm and work ethic. Sometime thereafter, Menges was transferred by Sopp to South
(
Dis
describing the situation as a "hostile work environment." Menges felt intimidated and
Her assignment at South High School turned out to be a bad experience, with Charging Party
not seek assistance from Sopp or let her know about the intimidation and harassment at her
that she was being discriminated against because she was not African American.' Menges did
Lynette Rock (Rock), that the reason for Charging Party's termination on November 21 was
Charging Party states that she recently learned that Gramling submitted a statement to her boss,
Charging Party also states that Article 9.3.21 of the Personnel Commission Rules provides as
be given a written notice of termination from probationary status
A probationary classified employee who is to be dismissed shall
are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District
Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions
(Department of Food and Agriculture) (1994) PERB Decision No. 1071-S, citing United
conduct alleged to constitute an unfair practice." The charging party's burden includes
alia, that an unfair practice charge include a "clear and concise statement of the facts and
alleging the "who, what, when, where and how" of an unfair practice. (State of California
failure to state what section(s) of the EERA has been violated by the District; (2) failure to
Charging Party has not cured the following deficiencies highlighted in the Warning Letter: (1)
* PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et

LA-CE-5275-E
December 29, 2008
Page 3	Page 3
and (3) failure to describe why and how her dismissal from her probationary food service
worker position demonstrates that an unfair practice under EERA has occurred.	worker position demonstrates that an unfair practice under EERA has occurred.
Charging Party alleges she was a hard-working and earnest employee. However, she has not
defined any protected activity she engaged in while an employee of the District. PERB will
not review disciplinary actions unrelated to activity protected by EERA. (San Ysidro School
District (1980) PERB Decision No. 134.) Charging Party's allegations of harassment and
intimidation against Gramling and a co-worker are also not sufficient to constitute an unfair
practice under EERA. PERB does not have jurisdiction to adjudicate racial discrimination,
"hostile work environment," or Personnel Commission Rule violations. 	(See, e.g., Barstow
Unified School District (1997) PERB Decision No. 1138b; Barstow Unified School District
(1996) PERB Decision No. 1138a; AFSCME Local 2620 (Moore) (1988) PERB Decision No.
683-S.)	683-S.)
Discrimination	Discrimination
Here again, Charging Party has failed to demonstrate that she was discriminated or retaliated
against in violation of EERA section 3543.5(a). 	As stated in the Warning Letter, Charging
Party was directed to show that: (1) she 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 (Novato); Campbell
Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 (Campbell); San
Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553 (San
Leandro).) In determining whether evidence of adverse action is established, the Board uses
an objective test and will not rely upon the subjective reactions of the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) In a later decision, the Board further
explained
the action to have an adverse impact on the employee's
reasonable person under the same circumstances would consider
found the employer's action to be adverse, but whether a
The test which must be satisfied is not whether the employee
that:
Unified School District (1988) PERB Decision No. 689.) In a later decision, the Board further
Here again, Charging Party has failed to demonstrate that she was discriminated or retaliated
against in violation of EERA section 3543.5(a). As stated in the Warning Letter, Charging
Party was directed to show that: (1) she 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 (Novato); Campbell
Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416 (Campbell); San
Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553 (San
Leandro).) In determining whether evidence of adverse action is established, the Board uses
an objective test and will not rely upon the subjective reactions of the employee. (Palo Verde
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.	employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)	omitted.)
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.	(State of California (Department of Transportation) (1984) PERB Decision No. 459-S;
and (3) failure to describe why and how her dismissal from her probationary food service
December 29, 2008
additional factors must also be present: (1) the employer's disparate treatment of the employee
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
employee's protected conduct is an important factor (North Sacramento School District (1982)
Although the timing of the employer's adverse action in close temporal proximity to the
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
(1996) PERB Decision No. 1138a; AFSCME Local 2620 (Moore) (1988) PERB Decision No.
Unified School District (1997) PERB Decision No. 1138b; Barstow Unified School District
"hostile work environment," or Personnel Commission Rule violations. (See, e.g., Barstow
practice under EERA. PERB does not have jurisdiction to adjudicate racial discrimination,
intimidation against Gramling and a co-worker are also not sufficient to constitute an unfair
not review disciplinary actions unrelated to activity protected by EERA. (San Ysidro School
defined any protected activity she engaged in while an employee of the District. PERB will
Charging Party alleges she was a hard-working and earnest employee. However, she has not
District (1980) PERB Decision No. 134.) Charging Party's allegations of harassment and
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote

LA-CE-5275-E
December 29, 2008
Page 4	Page 4
December 29, 2008
Campbell, supra,
131
Cal.App.3d 416); (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; San Leandro, supra, 55 Cal.App.3d 553); (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; San Leandro, supra, 55 Cal.App.3d
553); (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 or the offering
of
exaggerated, vague, or ambiguous reasons (County
of
San Joaquin (Health Care Service) (2001) PERB Order No. IR-55-M); (6) employer animosity
towards union activists (Jurupa Community Services District (2007) PERB Decision No. 1920-
M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any
other facts that might demonstrate the employer's unlawful motive. (North Sacramento School
District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
The amended charge is devoid
of
facts that establish that Menges engaged in protected
activities under EERA. The lack
of
EERA protected activity is fatal to the charge since there
can be no nexus assessment between any protected activity and Menges' dismissal from her
probationary position.
The amended charge is devoid of facts that establish that Menges engaged in protected
probationary position.
can be no nexus assessment between any protected activity and Menges' dismissal from her
activities under EERA. The lack of EERA protected activity is fatal to the charge since there
Therefore, the charge is hereby dismissed based on the facts and reasons set forth above and in
the December 16 Warning Letter.	the December 16 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations, Charging Party 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
ofthis dismissal. (Cal. Code Regs, tit. 8, sec. 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.	must be provided to the Board.
must contain the case name and number, and the original and five (5) copies of all documents
this dismissal. (Cal. Code Regs, tit. 8, sec. 32635(a).) Any document filed with the Board
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
Pursuant to PERB Regulations, Charging Party may obtain a review of this dismissal of the
Right
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. 11020(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
PERB 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. (Cal. Code Regs, tit. 8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
other facts that might demonstrate the employer's unlawful motive. (North Sacramento School
M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any
towards union activists (Jurupa Community Services District (2007) PERB Decision No. 1920
San Joaquin (Health Care Service) (2001) PERB Order No. IR-55-M); (6) employer animosity
took action or the offering of exaggerated, vague, or ambiguous reasons (County of
Decision No. 1560); (5) the employer's failure to offer the employee justification at the time it
(2008) PERB Decision No. 1971-M; Coast Community College District (2003) PERB
553); (4) the employer's cursory investigation of the employee's misconduct (City of Torrance
Parks and Recreation) (1983) PERB Decision No. 328-S; San Leandro, supra, 55 Cal.App.3d
inconsistent or contradictory justifications for its actions (State of California (Department of
(1979) PERB Decision No. 104; San Leandro, supra, 55 Cal.App.3d 553); (3) the employer's
procedures and standards when dealing with the employee (Santa Clara Unified School District
Campbell, supra, 131 Cal.App.3d 416); (2) the employer's departure from established
Therefore, the charge is hereby dismissed based on the facts and reasons set forth above and in
to Appeal
the required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs, tit. 8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and
of PERB Regulation 32135(d), provided the filing party also places the original, together with
of business together with a Facsimile Transmission Cover Sheet which meets the requirements
document is also considered "filed" when received by facsimile transmission before the close
Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. 11020(a).) A
A document is considered "filed" when actually received during a regular PERB business day.

LA-CE-5275-E
December 29, 2008
Page 5	Page 5
December 29, 2008
The Board's address is:	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
(916) 322-8231
1031 18th Street
FAX: (916) 327-7960
Sacramento, CA 95811-4124
Attention: Appeals Assistant
Public Employment Relations Board
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. (Cal. Code Regs, tit. 8, sec. 32635(b ). )	following the date of service of the appeal. (Cal. Code Regs, tit. 8, sec. 32635(b).)
Board an original and five copies of a statement in opposition within twenty (20) calendar days
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Service	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 Cal. Code Regs., tit. 8, sec. 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.
(Cal. Code Regs, tit. 8, sec. 32135(c).)	(Cal. Code Regs, tit. 8, sec. 32135(c).)
deposited in the mail or deposited with a delivery service and properly addressed. A document
contents.) The document will be considered properly "served" when personally delivered or
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, sec. 32140 for the required
proceeding, and a "proof of service" must accompany each copy of a document served upon a
All documents authorized to be filed herein must also be "served" upon all parties to the
may also be concurrently served via facsimile transmission on all parties to the proceeding.
Extension of Time	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. (Cal. Code Regs, tit. 8, sec. 32132.)
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs, tit. 8, sec.
filing the document. The request must indicate good cause for and, if known, the position of
in writing and filed with the Board at the previously noted address. A request for an extension
A request for an extension of time, in which to file a document with the Board itself, must be
must be filed at least three (3) calendar days before the expiration of the time required for

LA-CE-5275-E
December 29, 2008
Page 6	Page 6
December 29, 2008
Final Date	·
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.	time limits have expired.
Sincerely,	Sincerely,
TAMI R. BOGERT
General Counsel	General Counsel
By
A
l Director
By
_____________
_
Anita
I.
Martinez
Regional Director	Regiona
Attachment	Attachment
cc: Spencer Covert	Spencer	cc:
Final Date
nita I. Martinez
If no appeal is filed within the specified time limits, the dismissal will become final when the
TAMI R. BOGERT

PUBLIC EMPLOYMENT RELATIONS BOA RD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1020
Fax: (510) 622-1027
December 16, 2008
Lisa A. Menges
22706 S. Evalyn Ave.
Torrance, CA 90505
Re: 	Lisa A. Menges v. Torrance Unified School District
Unfair Practice Charge No. LA-CE-5275-E
WARNING LETTER
Dear Ms. Menges:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 3, 2008. 1 Lisa A. Menges (Menges or Charging Party)
does not allege a specific section of the Educational Employment Relations Act (EERA or
Act)2 which has been violated by the Torrance Unified School District (District or
Respondent).
My investigation revealed the following facts. Menges was a probationary food service
worker3 in the District. On November 21, her supervisor, Gail Gramling (Gramling), asked
Menges to turn in her visor and apron at the end of her shift and dismissed her from
employment as a probationary employee. 	The reason given was that Menges was unable to
perform the job properly. Charging Party asserts that she worked to the best of her ability,
completing whatever tasks she was asked to perform, including washing dishes. Charging
Party maintains that a co-worker, Margarita Jones (Jones), would watch her every move and
report back to Gramling if Menges did anything wrong. Gramling would then call Menges into
her office and talk to her.
Charging Party states that she was not provided with any training regarding the performance of
her job duties at this particular school site.4 Charging Party states that she felt alone and
discriminated against. 	Charging Party did not receive a written warning prior to her
termination, and surmises that since Gramling was a new probationary supervisor, she herself
had not been trained how to properly supervise employees.
All dates refer to calendar year 2008.
OF
2 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.
3 Charging Party does not provide her classification.
4 Charging Party had worked at another school site in the
CALIFORNIA ( ARl'<OLD SCHWARZENEGGER, Governor

LA-CE-5275-E
December 16, 2008
Page 2
Discussion
16,
Discussion
Charging Party's Burden
of
Proof	Charging Party's Burden of Proof
PERB Regulation 32615(a)(5)	PERB Regulation 32615(a)(5)" requires, inter alia, that an unfair practice charge include a	5 requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging 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, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)	Oak Unified School District (1991) PERB Decision No. 873.)
The charge as filed is deficient for several reasons. First, it does not state what section
of
EERA has been violated by the District. 	Second, it does not provide a statement
of
facts and
conduct alleged to constitute an unfair practice under EERA. Third, Menges simply describes
her unhappiness at having been dismissed from her probationary position by a probationary
supervisor, without describing why and how that action demonstrates that an unfair practice
under EERA has occurred.	under EERA has occurred.
Discrimination	Discrimination
Since Menges did not specify what section
of
the EERA has been violated, the charge will be
scrutinized utilizing a discrimination analysis.
Since Menges did not specify what section of the EERA has been violated, the charge will be
6 To demonstrate that an employer discriminated
or retaliated against an employee in violation ofEERA 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 (Novato); Campbell
Municipal Employees Assn. v. City
of
Campbell (1982) 131 Cal.App.3d 416 (Campbell); San
Leandro Police Officers Assn.
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553 (San
Leandro).) In determining whether evidence
of
adverse action is established, the Board uses
an objective test and will not rely upon the subjective reactions
of
the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) In a later decision, the Board further
explained that:	explained that:
5 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. 	Copies
of
the Regulations may be purchased from PERB's Publications
Coordinator, 1031 18th Street, Sacramento, CA, 95811-4124, and the text is available at
www.perb.ca.gov.	www.perb.ca.gov.
6 Where a charging party fails to allege that any specific section of the Act has been
violated, a Board Agent, upon a review of the charge, may determine under what section the
charge should be analyzed. 	(Los Banos Unified School District (2007) PERB Decision No.
1935.)	1935.)
C
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
2008
Page 2
416 (Campbell); San	Cal.App.3d
Cal.App.3d 553 (San
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
The charging party's burden includes alleging the "who, what, when, where and how" of an
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
supervisor, without describing why and how that action demonstrates that an unfair practice
her unhappiness at having been dismissed from her probationary position by a probationary
conduct alleged to constitute an unfair practice under EERA. Third, Menges simply describes
EERA has been violated by the District. Second, it does not provide a statement of facts and
The charge as filed is deficient for several reasons. First, it does not state what section of
Unified School District (1988) PERB Decision No. 689.) In a later decision, the Board further
an objective test and will not rely upon the subjective reactions of the employee. (Palo Verde
Leandro).) In determining whether evidence of adverse action is established, the Board uses
Leandro Police Officers Assn. v. City of San Leandro (1976) 55
Municipal Employees Assn. v. City of Campbell (1982) 131
Novato Unified School District (1982) PERB Decision No. 210 (Novato); Campbell
employee; and (4) the employer took the action because of the exercise of those rights.
knowledge of the exercise of those rights; (3) the employer took adverse action against the
must show that: (1) the employee exercised rights under EERA; (2) the employer had
or retaliated against an employee in violation of EERA section 3543.5(a), the charging party
scrutinized utilizing a discrimination analysis." To demonstrate that an employer discriminated
Coordinator, 1031 18th Street, Sacramento, CA, 95811-4124, and the text is available at
31001 et seq. Copies of the Regulations may be purchased from PERB's Publications
PERB Regulations are codified at California Code of Regulations, title 8, section
charge should be analyzed. (Los Banos Unified School District (2007) PERB Decision No.
violated, a Board Agent, upon a review of the charge, may determine under what section the
Where a charging party fails to allege that any specific section of the Act has been

LA-CE-5275-E
December 16, 2008
Page 3	Page 3
December 16, 2008
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.
the action to have an adverse impact on the employee's
reasonable person under the same circumstances would consider
found the employer's action to be adverse, but whether a
The test which must be satisfied is not whether the employee
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an importFl,nt 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;
Campbell, supra, 131 Cal.App.3d 416); (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; San Leandro, supra, 55 Cal.App.3d 553); (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; San Leandro, supra, 55 Cal.App.3d
553); (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 or the offering of exaggerated, vague, or ambiguous reasons (County of
San Joaquin (Health Care Service) (2001) PERB Order No. IR-55-M); (6) employer animosity
towards union activists (Jurupa Community Services District (2007) PERB Decision No. 1920-
M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any
other facts that might demonstrate the employer's unlawful motive. 	(North Sacramento School
District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)	District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
In this case, the charge is devoid of any and all facts that would establish that Menges engaged
in protected activities under EERA; that Gramling had knowledge of those protected activities;
and that Gramling released Menges from her probationary position because of the exercise of
those EERA-protected rights. 	Without these three elements, it is impossible to assess whether
there is a nexus between any protected activity by Menges and her dismissal from her
probationary position.	probationary position.
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, Charging Party may 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 an authorized agent of 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
perjury by an authorized agent of Charging Party. The amended charge must have the case
number written on the top right hand comer of the charge form. 	The amended charge must
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
explained above, Charging Party may amend the charge. The amended charge should be
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
For these reasons the charge, as presently written, does not state a prima facie case. If there
employment.
omitted.)
other facts that might demonstrate the employer's unlawful motive. (North Sacramento School
M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any
towards union activists (Jurupa Community Services District (2007) PERB Decision No. 1920
San Joaquin (Health Care Service) (2001) PERB Order No. IR-35-M); (6) employer animosity
took action or the offering of exaggerated, vague, or ambiguous reasons (County of
Decision No. 1560); (5) the employer's failure to offer the employee justification at the time it
(2008) PERB Decision No. 1971-M; Coast Community College District (2003) PERB
553); (4) the employer's cursory investigation of the employee's misconduct (City of Torrance
Parks and Recreation) (1983) PERB Decision No. 328-S; San Leandro, supra, 55 Cal.App.3d
inconsistent or contradictory justifications for its actions (State of California (Department of
procedures and standards when dealing with the employee (Santa Clara Unified School District
Campbell, supra, 131 Cal.App.3d 416); (2) the employer's departure from established
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S;
additional factors must also be present: (1) the employer's disparate treatment of the employee
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
employee's protected conduct is an important factor (North Sacramento School District (1982)
Although the timing of the employer's adverse action in close temporal proximity to the
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
(1979) PERB Decision No. 104; San Leandro, supra, 55 Cal.App.3d 553); (3) the employer's
there is a nexus between any protected activity by Menges and her dismissal from her
and that Gramling released Menges from her probationary position because of the exercise of
in protected activities under EERA; that Gramling had knowledge of those protected activities;
In this case, the charge is devoid of any and all facts that would establish that Menges engaged
those EERA-protected rights. Without these three elements, it is impossible to assess whether

LA-CE-5275-E
December 16, 2008
Page 4	Page 4
December 16, 2008
served on the Respondent's representative and the original proof of service must be filed with
PERB. If an amended charge or withdrawal is not filed on or before December 23, 2008,
PERB will dismiss your charge. If you have any questions, please call me at the above
telephone number.
PERB will dismiss your charge. If you have any questions, please call me at the above
Sincerely,	Sincerely,
Anita I. Martinez
Regional Director	Regional
Anita I. Martinez
served on the Respondent's representative and the original proof of service must be filed with
PERB. If an amended charge or withdrawal is not filed on or before December 23, 2008,
telephone number.