Sonoma Valley Unified School District (PERB 1613E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MARILEE L. DE LAUER,
Charging Party, Case No. SF-CE-2316-E
V. PERB Decision No. 1613
SONOMA VALLEY UNIFIED SCHOOL April 2, 2004
DISTRICT, .
Respondent.

Appearance: Marilee L. DeLauer, on her own behalf.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Marilee DeLauer (DeLauer) of a Board agent’s dismissal (attached) of her unfair
practice charge. The charge alleged that the Sonoma Valley Unified School District violated
the Educational Employment Relations Act (EERA)' by retaliating against DeLauer for
protected activities.

The Board has reviewed the entire record in this matter, including the original and
amended unfair practice charge, the warning and dismissal letters and DeLauer’s appeal. The
Board finds the warning and dismissal letters to be free of prejudicial error and adopts them as

the decision of the Board itself.

‘EERA is codified at Government Code section 3540 et seq.

ORDER
The unfair practice charge in Case No. SF-CE-2316-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
2

STATE OF CALIFORNIA 	GRAY
DA
VIS, Governor
PUBLIC,EMP.LOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
March 7, 2003
Marilee de Lauer
19357 Apple Valley Road
Sonoma, CA 95476
(
Re: 	Marilee L. de Lauer v. Sonoma Valley Unified School District
Unfair Practice Charge No. SF-CE-2316-E; First Amended Charge
DISMISSAL LETTER
Dear Ms. de Lauer:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 15, 2003. Marilee L. de Lauer alleges that the Sonoma
Valley Unified School District violated the Educational Employment Relations Act (EERA) 1
by retaliating against her for protected activity.
I indicated to you in my attached letter dated February 20, 2003, 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 February 27, 2003, the charge would be
dismissed.
On February 27, 2003, I received a first amended charge. The amended charge adds the
following information.
In the Spring
of
2000, Charging Party requested a 90 day leave
of
absence from her bus driver
position to study in Italy. This request was denied by the District and Charging Party was
forced to resign her position. Upon her return from Europe, Charging Party was placed in a
substitute driver position with a significant change in benefits. Charging Party asserts this
"demotion" took place because
of
her protected activity of complaining about sexual
harassment. It is unclear when these complaints took place.
Based on the facts provided in the original and amended charges, the charge still fails to state a
prima facie case of discriminatio.n.
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-2316-E
Marc.:h 6, 2003
Page 2
EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of the charge." The limitations period begins to run once the charging party knows, or should
have known, of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) The charging party bears the burden of demonstrating that
the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No.
1024; State of California (Department oflnsurance) (1997) PERB Decision No. 1197-S.) As
the District's "demotion" took place nearly three years ago, the charge is clearly untimely filed
and must be dismissed.
Moreover, even assuming the charge was timely filed, the facts provided fail to demonstrate
the District placed Charging Party in a substitute driver position for any reason other than the
fact that she resigned her position earlier that year. 	As such, the charge fails to state a prima
facie case.
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 before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than 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
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 100 l et seq.

SF-CE-2316-E
March 6, 2003
c·
Page 3
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.)
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
1stin L. Rosi
Regional Attorney
Attachment
cc: 	Sonoma County

STATE OF CALIFORNIA 	GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
February 20, 2003
Marilee de Lauer
19357 Apple Valley Road
Sonoma, CA 95476
Re: 	Marilee L. de Lauer v. Sonoma Valley Unified School District
Unfair Practice Charge No. SF-CE-2316-E
WARNING LETTER
Dear Ms. de Lauer:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 15, 2003. Marilee L. de Lauer alleges that the Sonoma
Valley Unified School District violated the Educational Employment Relations Act (EERA)1
by retaliating against her for protected activity.
This charge states in its entirety as follows:
Retaliation for filing a PERB. I have been unlawfully, unfairly
treated with hostile environment and prevented from "riding" on
a school bus, being on SVUSD transportation property, and
driving the SVUSD school bus for filing a PERB. Interference
with other Sonoma County Office of Education jobs have been
prevented, tampered and obstructed, as well as the safety,
education and home of my personal life, and as well as my
family's (sic). My PERB action as a SVUSD employee is
protected activity. I was criticizing the performance of CSEA
president Rita Hensic, SVUSD members and employees, this was
in regard to the "protection of the public health and safety," not
as many personal grudges.
As the charge provides no additional facts or exhibits, my investigation included reviewing the
case files of Ms. de Lauer' s previous unfair practice charges. 2 It appears that in early 2002,
Charging Party resigned from her position as a full time bus driver when she was denied a
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 Unfair Practice Charges SF-CE-2258, SF-CE-2268, SF-CO-608, SF-CO-609, and SF-
CO-613.

SF-CE-2316-E
February 20, 2003
Page 2
( 	(
leave
of
absence for a vacation to Europe. When Charging Party returned from vacation, the
District hired her as a substitute bus driver. It is assumed that Charging Party is still employed
in that position, although the charge fails
to
provide that information.
On June 11, 2002, Charging Party filed an unfair practice charge against the District, alleging
they refused to provide her with a worker's compensation form, in retaliation for some
undisclosed protected activity. This charge was dismissed and is on appeal to the Board.
Based on the above stated facts, the charge as presently written fails to state a prima facie
violation
of
the EERA, for the reasons provided below.
PERB Regulation 32615(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."
Thus, 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.) Herein, Charging Party fails to
provide any details regarding the alleged retaliation, including the relevant dates, parties
involved and what action was taken. As such, it is impossible for PERB to determine the
merits
of
the charge.
Even assuming Charging Party provided the dates and parties involved, the charge still fails to
state a prima facie case
of
retaliation. To demonstrate a violation ofEERA section 3543.S(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

SF-CE-2316-E
February 20, 2003
Page 3
(
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.]
Although Charging Party engaged in protected activity several months ago, the charge fails to
demonstrate any facts regarding nexus. As such, the charge fails to state a prima facie case.
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
comer
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 February 27, 2003, I shall dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR