Compton Unified School District (PERB 1805E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

JANICE M. ABNER,
Charging Party, Case No. LA-CE-4868-E

Vv. PERB Decision No. 1805

COMPTON UNIFIED SCHOOL DISTRICT, January 5, 2006

Respondent.

Appearances: Janice M. Abner, on her own behalf; Littler Mendelson by Michael A. Gregg,
Attorney, for Compton Unified School District.

Before Duncan, Chairman; Whitehead and Neuwald, Members.
| DECISION

NEUWALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Janice M. Abner (Abner) of a Board agent’s dismissal
(attached) of her unfair practice charge. The charge alleged the Compton Unified School
District (District) retaliated against her for engaging in protected activities.

The Board has reviewed the entire record, including the unfair practice charge, the
| amended unfair practice charge, the second amended unfair practice charge, the District’s
position statement, the Board agent’s warning and dismissal letters, Abner’s appeal, and the
District’s response. The Board finds the warning and dismissal letters to be free of prejudicial

error and adopts them as the decision of the Board itself.

On appeal, Abner asks the Board to take judicial notice of a Superior Court order
submitted after the appeal filings deadline. Consideration of new supporting evidence on
appeal, however, is controlled by PERB Regulation 326351 which provides, in pertinent part:
(b) Unless good cause is shown, a charging party may not present on
appeal new charge allegations or new supporting evidence.
Interpreting this regulation, the Board has been reluctant to find that good cause existed
to allow a party to raise new allegations or new evidence for the first time on appeal. The
reason for this reluctance is stated in South San Francisco Unified School District (1990)
PERB Decision No. 830:
The purpose of PERB Regulation 32635(b) is to require the charging
party to present its allegations and supporting evidence to the Board
agent in the first instance, so that the Board agent can fully
investigate the charge prior to deciding whether to issue a complaint
or dismiss the case.
When a party has the opportunity to cure defects in a prima facie case at earlier stages and does
not do so, the Board is reluctant to allow a party to raise such facts or evidence later. (Oakland
Education Association (Freeman) (1994) PERB Decision No. 1057.)
On November 18, 2005, Abner submitted an order dated November 3, 2005, by the
clerk of the Superior Court. Because it was not plausible to receive the order prior to the
Board agent's dismissal or the appeals filing deadline, Abner demonstrates good cause to
submit the document and have it considered by the Board.
Even considering the new evidence presented by Abner, she fails to allege a prima facie
case of retaliation.
1PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
2

ORDER
The unfair practice charge in Case No. LA-CE-4868-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
3

STATEOFCALIFORNIA 	c--- ============= 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT HELATIONS BOARD
="
.
Sacramento Regional Office
I031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
,
September 21, 2005
Janice Abner
888 Victor Avenue, #16
Inglewood, CA 90302
Re: 	Janice M. Abner v. Compton Unified School District
Unfair Practice Charge No. LA-CE-4868-E, Second Amended Charge
DISMISSAL LETTER
Dear Ms. Abner:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 24, 2005. 	You allege that the Compton Unified School
District violated the Educational Employment Relations Act (EERA)1 by retaliating against
you for your participation in protected activities.
I indicated to you in my attached letter dated July 5, 2005, 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 July 15, 2005, the charge would be dismissed. On July 14,
2005, you filed a First Amended Charge. On August 16, 2005, the Respondent filed a position
statement. On August 23, 2005, the Respondent filed a Proof of Service demonstrating that he
had served the position statement. On September 2, 2005, you filed a Second Amended
Charge. My investigation revealed the following information.
The District employs Janice Abner as a Special Education Resource Specialist Teacher. On
May 25, 2004, Abner filed a letter-grievance regarding the District's removal of an aide from
her classroom. On July 29, 2004 Abner filed a Step-III grievance regarding her April 6, 2004
performance evaluation. On February 5, 2005, Abner wrote to the Deputy Superintendent
complaining that the students at King Elementary school were being illegally taught by
Instructional Assistants who do not have degrees and credentials. On March 14, 2005, Abner
submitted a complaint pursuant to the District's Uniform Complaint policy alleging that the
District created a hostile work environment.
On April 26, 2005, the District issued a reprimand to Abner regarding her conduct during a
meeting with Principal Alane Calhoun. During that meeting Abner yelled, verbally attacked
Calhoun and other employees, and indicated she was going to dissent about the placement of
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.

LA-CE-4868-E
September 21, 2005
Page2
[the] student [name omitted] during an upcoming IBP meeting even though the IBP Team had
not yet made a recommendation regarding [the student's] placement.
The Warning Letter indicated, in pertinent part:
Although Abner engaged in protected activities by filing
grievances and complaints, the charge fails to demonstrate the
District was motivated by those activities when it issued her a
reprimand, placed her on administrative leave and requested her
to submit to a medical examination. 	The adverse actions are
remote in time from the grievances Abner filed. 	Although the
adverse actions are closer in time to the complaints Abner filed,
the District recounted a specific incident justifying the reprimand
without any contradictory justification for its action. 	The facts
indicate that the investigation and request for medical
examination stemmed from that incident. The charge does not
provide facts establishing the requisite nexus between Abner's
protected activities and these adverse actions.
In the First Amended Charge Abner alleges that during the April 26, 2004 meeting she did not
say that she intended to sue the principal. Abner explains that she said the District could be
sued if they improperly placed [the student]. 	Abner alleges that the District issued the
reprimand to detract from the fact that she was excluded from the IBP meeting in violation of
the Education Code. 	Abner also alleges she was not given a chance to respond to the
reprimand, but acknowledges that Calhoun told her she had ten days to provide a response.
Abner also alleges that she has been placed on leave without being provided any specific
charges.
In the Second Amended Charge Abner alleges: (1) the charge is timely filed; (2) arbitration is
inappropriate because there is not an underlying grievance;2 (3) the elements of a retaliation
violation have been met; and (4) there is a nexus between her protected activity and the
District's adverse action. 	More specifically, Abner alleges the following facts demonstrate the
requisite nexus: (a) the District's failure to investigate her March 2005 complaint demonstrates
disparate treatment; (b) the District's failure to investigate her March 2005 complaint
demonstrates a departure from procedures; (c) she has not served as a counselor since 2001 and
therefore the District cannot subject her to a medical exam; and (d) she received
commendations from supervisors which disprove allegations that she is unable to work with
students.
2 This allegation appears to be in response to the Respondent's position statement
which suggests the charge should be deferred to binding arbitration. 	Although the parties'
agreement ends in binding arbitration, Article 6.8.4 only indicates that reprisals will not be
taken against participants in the grievance procedure. 	The parties did not provide information
indicating the CBA included a broader non-discrimination clause which would cover reprisal
for Abner's filing of complaints.

LA-CE-4868-E
September 21, 2005
Page 3
( 	(
The above-stated information fails to state a prim facie violation for the reasons that follow.
PERB's jurisdiction is limited to the determination of unfair labor practice claims arising under
EERA and a few other public sector labor statutes. (Sweetwater Union High School District
(2001) PERB Decision No. 1417-S.) PERB'sjurisdiction does not include enforcement of the
Education Code or laws governing special education. As such, this letter does not address
whether the District violated the Education Code and does not address whether the Charging
Party has rights or remedies under other state or federal laws.
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 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.)
Abner demonstrated that she engaged in protected activity and that the District took adverse
action against her by issuing her a reprimand, placing her on administrative leave and
requesting her to submit to a medical examination. However, as the warning letter noted, the
charge did not demonstrate the District took adverse action against her because of the exercise
of those rights. As explained more fully below, the First and Second Amended charges do not
correct this deficiency.
The adverse actions did not occur close in time to Abner's 2004 grievances, and occurred more
than a month after Abner's March 14, 2005 complaint. Principal Alane Calhoun issued Abner
a Letter of Reprimand based on Abner's conduct during a meeting with Calhoun. 	As Calhoun
observed Abner first hand, it does not appear that Calhoun needed to conduct further
investigation of the matter before issuing the reprimand. As such, the charge does not
·demonstrate the District conducted a cursory investigation into the April 26, 2005 incident.
Article 12.18 of the parties' collective bargaining agreement states:
If the District believes that an unit member cannot safely or
adequately perform the duties of his/her position, or if a unit
member is using any leave based on an illness or an injury, the
District may require that the unit member be examined by a
District-selected physician at District expense. This section shall
be applicable to members of all Association bargaining units.
Based on the above-quoted language, it appears that the District had the right to require Abner
to submit to a medical examination when it determined that it had concerns about whether
Abner could safely perform her duties. Abner's charge does not present facts demonstrating
the District's rights are limited because she has not served as a counselor since 2001. As such,
the charge fails to state a prima facie violation and must be dismissed.

LA-CE-4868-E
September 21, 2005
Page 4
Right to Appeal
Pursuant to PERB Regulations,3 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. 	(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).)
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-4868-E
September 21, 2005
Page 5
Extension of Time
r
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
ByT~
Regional Attorney
Attachment
cc: Michael Gregg

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
> Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8384
Fax: (916) 327-6377
<
July 5, 2005
Janice M. Abner
888 Victor Avenue, #16
Inglewood, CA 90302
Re: 	Janice M. Abner v. Compton Unified School District
Unfair Practice Charge No. LA-CE-4868-E
WARNING LETTER
Dear Ms. Abner:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 24, 2005. 	You allege that the Compton Unified School
District violated the Educational Employment Relations Act (EERA)1 by retaliating against
you for your participation in protected activities. My investigation revealed the following
information.
The District employs Janice Abner as a Special Education Resource Specialist Teacher. On
May 25, 2004, Abner filed a letter-grievance regarding the District's removal of an aide from
her classroom. On July 29, 2004 Abner filed a Step-III grievance regarding her April 6, 2004
performance evaluation.
On February 5, 2005, Abner wrote to the Deputy Superintendent complaining that the students
at King Elementary school were being illegally taught by Instructional Assistants who do not
have degrees and credentials.
On March 14, 2005, Abner submitted a complaint pursuant to the District's Uniform Complaint
policy alleging that the District created a hostile work environment. On March 23, 2005,
Abner wrote to Area Superintendent Nicholas Rotuna asking whether that complaint had been
resolved yet.
On April 26, 2005, the District issued a reprimand to Abner which stated, in part:
At approximately 9:10 a.m., I called you into my office to discuss
the IEP meeting Friday for [a student]. Due to previous IEP
meetings where your behavior was unprofessional, I felt the need
to connect with you to discuss my expectations in regards to your
being professional and representing the district and school in 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.

LA-CE-4868-E
July 5, 2005
Page2
positive manner. You began to yell, threatened to sue me, and
verbally attack several district employees, namely: Joe Mahabir,
Dr. Ed Scott, Rafael Cardanas, and myself, Dr. Alane Calhoun.
You went on further to state that when we conduct the IBP, you
were going to dissent. I informed you that the IBP team had not
made any decisions in regards to [the student's] placement
because that decision is reserved for the IBP meeting timewhen
all parties including the parents are present. 	You informed me
that you were dissenting anyway. 	You stated, "I will dissent
because I can... the world is made up of dissenters." 	You could
not explain to me what the dissent was based on. 	Afterall, no
decision had been made. I explained to you that any IBP team
member has a right to dissent including yourself, but I question
your motives when you to decide to dissent prior to an IBP
meeting where all parties are at the table to discussthe matter and
come to decision. 	You aggressively asserted, "I am going to
dissent anyway." It was clear to me that your agenda was to
create conflict.
On April 28, 2005, the District notified Abner that she was being placedon administrative
leave with pay. 	The letter indicated that allegations of inappropriate behavior had been made
against her and that the District was going to conduct an investigation.
On June 3, 2005, the District requested that Abner submit to a medical examination. 	The letter
indicated that the District had serious concerns about her ability to safely perform her
responsibilities including interacting with District students and participating in IBP meetings.
The above-stated information fails to state a prima facie violation for the reasons that follow.
To demonstrate a 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; 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

LA-CE-4868-E
July 5, 2005
Page 3
(
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.)
Although Abner engaged in protected activities by filing grievances and complaints, the charge
fails to demonstrate the District was motivated by those activities when it issued her a
reprimand, placed her on administrative leave and requested her to submit to a medical
examination. The adverse actions are remote in time from the grievances Abner filec:l.
Although the adverse actions are closer in time to the complaints Abner filed, the District
recounted a specific incident justifying the reprimand without any contradictory justification
for its action. The facts indicate that the investigation and request for medical examination
stemmed from that incident. The charge does not provide facts establishing the requisite nexus
between Abner's protected activities and these adverse actions. As such, the charge must be
dismissed.
For these reasons the charge, as presently written, does not state a prima facie case. Ifthere
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 penaltyof perjury by the
charging party. The amended charge must have the case number writtenon 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. IfI do not receive an
amended charge or withdrawal from you before July 15, 2005, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
,---
Tammy Samsel
Regional Attorney
TLS