Trustees of the California State University * * * OVERRULED IN PART by Visalia Unified School District (2022) PERB Decision No. 2806 (PERB 2038H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
VALINDA KYRIAS,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY,
Respondent.
Case No. SF-CE-870-H
PERB Decision No. 2038-H
June 11, 2009
Appearances: VaLinda Kyrias, on her own behalf; Daniel A. Ojeda, University Counsel, for
Trustees of the California State University.
Before Neuwald, Wesley and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by VaLinda Kyrias (Kyrias) of a Board agent's dismissal of
her unfair practice charge. The charge alleged that the Trustees of the California State
University (CSU) violated the Higher Education Employer-Employee Relations Act (HEERA)1
by: (1) reorganizing Kyrias' position at Sonoma State University; (2) denying her request to
work a full-time schedule; and (3) failing to give her pay raises, all in retaliation for her
protected activity. The Board agent dismissed the charge for failure to state a prima facie case
of retaliation.
The Board has reviewed the dismissal and the record in light of Kyrias' appeal, CSU's
response and the relevant law. Based on this review, the Board affirms the dismissal of the
charge for the reasons discussed below.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
* * * OVERRULED IN PART by
Visalia Unified School District (2022) PERB Decision No. 2806 * * *

BACKGROUND
Since 2002, Kyrias has held the position
of
Administrative Support Coordinator II
(ACII) in the School
of
Social Sciences at Sonoma State University. In 2004, while serving as
chief steward for California State Employees Association, Chapter 304, Kyrias participated in
a grievance proceeding against management
of
the School
of
Social Sciences. Later in 2004
she filed an unfair practice charge with PERB alleging that she received a written reprimand
because
of
her participation in the grievance proceeding.2 Also in 2004, Kyrias began
attending law school but continued to work a full-time schedule.
On July 17, 2007, Erica Wilcher (Wilcher), the administrative manager
of
the School
of
Social Sciences, granted Kyrias' request for a permanent reduction to an 80 percent timebase
to accommodate her law school classes. On January 10, 2008, Wilcher approved Kyrias'
request to work 60 percent time beginning September
1,
2008.
On February 22, 2008, Wilcher phoned Kyrias and offered her a position doing website
updates and data analysis. Kyrias would retain her ACII classification and rate
of
pay; it
appears there was no discussion
of
the timebase for the new position. An employee from the
Psychoiogy department would subsequently fili Kyrias' current position in the Geography
department. Kyrias declined the offer. On February 27, Kyrias emailed Wilcher offering to
postpone her reduction to 60 percent timebase until October
1,
2008, because
of
the increased
workload at the beginning
of
the fall semester. On February 29, Celeste McDonald
(McDonald), an administrative specialist in the Psychology department, emailed department
2 In Trustees
of
the California State University (Sonoma) (2005) PERB Decision
No. 1755, the Board remanded this charge to the Office of the General Counsel for issuance of
a complaint. On January 5, 2006, the parties entered into a settlement agreement that resolved
the charge.
2

faculty and staff that she had accepted a new position outside
of
the department that would
begin on July
1,
2008.
Wilcher responded to Kyrias' February 27, 2008 email on March
3.
	Wilcher's email
stated in relevant part:
I plan to combine Geography and Global Studies with other
departments and programs in order to streamline processes and
increase efficiency. This reorganization will cause a
reclassification
of
what is now your current position. This
reorganization also facilitates the need for 100% timebase.
Therefore, you will not be able to continue to work in that
location beginning July 1st. Alternatively, I would like for you
[to] work on website updates and data analysis.
On March
7,
2008, Wilcher met with Kyrias and her union representative, Liona Spring
(Spring), to discuss the reorganization. Wilcher presented draft job descriptions for the two
new positions; both were dated February 29, 2008. The description
of
the position classified as
"Admin Analyst/Specialist NE" listed McDonald as the incumbent and described major duties
and minimum qualifications largely identical to those
of
Kyrias' current position. In addition
to the Geography and Global Studies departments currently supported by Kyrias, the new
position would also support the Human Development department and the Holocaust Studies
Center. The description
of
the other position, while it included the same minimum
qualifications, listed the major duties as follows:
The Administrative Coordinator (AC) will be responsible for
providing website updates including converting course syllabi to
PDF format and uploading them to department websites. The AC
will also be responsible for compiling requested data including
5-year averages of FTES, FTEF, majors, faculty workload,
classroom/office space utilization and budget.
Wilcher also provided a cover sheet summarizing the different positions and their salaries.
Immediately after Wilcher's presentation, Kyrias presented Wilcher with a written
grievance that claimed Wilcher retaliated against Kyrias "by reorganizing Ms. Kyrias's current
3

position, resulting in a reclassification, causing Ms. Kyrias to lose her current position as she
has known it since 2002." As a remedy, Kyrias sought to be offered "the position resulting
from the reorganization" and for that position to become full-time starting September
1,
2008.
Wilcher signed and dated Spring's copy
of
the grievance to acknowledge receipt.
On March 18, 2008, Stephen Green, Sonoma State University's manager
of
employee
and labor relations, emailed Spring that he had received a copy
of
Kyrias' March 7 grievance.
The email stated in part: "My understanding
of
the situation is that, although Ms. Wilcher has
discussed with Ms. Kyrias her desire to reorganize the School
of
Social Studies and asked for
Ms. Kyrias' s input, she has not made any move to do so." Green then asked
if
Spring wished
to proceed with the grievance. On March 19, Wilcher emailed Kyrias and Spring, stating "I
have decided not to reorganize Ms. Kyrias's current position." Kyrias remained in her existing
ACII position after July
1,
2008.
On August
1,
2008, Kyrias emailed Wilcher requesting to work 100 percent timebase
starting September
1,
2008. Wilcher denied the request. When Kyrias asked for a reason,
Wilcher responded: "The workload for the departments you support does not necessitate a
timebase
of
100%." Around August 4, the School
of
Social Sciences posted job
announcements for two temporary, full-time ACII positions. Those positions were filled on
September
11
and 12.
On September 11, Kyrias went to the Psychology department and saw a sign posted on
the door stating that the Human Development department had moved to the second floor. 	The
charge alleged that one of the new temporary ACII positions supported the relocated Human
Development department.
4

Unfair Practice Charge and Dismissal
On August 21, 2008, Kyrias filed her unfair practice charge alleging that CSU, and
specifically Wilcher, retaliated against Kyrias for her protected activity by reorganizing her
position, denying her request to work a full-time schedule and failing to give her pay raises.
The charge also alleged that CSU failed to provide Kyrias with requested information relevant
to her March 7, 2008 grievance.
The Board agent found the charge failed to establish a prima facie case
of
retaliation
because: (1) the reorganization plan was never implemented and therefore could not constitute
an adverse action; (2) the charge did not allege any facts showing CSU denied Kyrias' request
for full-time hours because
of
her protected activity; and (3) the charge likewise failed to
allege facts establishing that CSU failed to give Kyrias pay raises because
of
her protected
activity. Finally, the Board agent dismissed the allegation that CSU failed to provide Kyrias
with requested information on the ground that the duty to provide relevant information is owed
to the exclusive representative, not to an individual employee.3
Kyrias' Appeal
Kyrias raises three issues on appeal. First, she asserts all
of
the allegations in the
charge are timely under a continuing violation theory because"[t]he adverse action complained
of
in this complaint is the deprivation
of
economic opportunity for VaLinda Kyrias (Kyrias)
from 2004 to present." Therefore, she contends, PERB can find that CSU's failure to give her
pay raises from 2004 through January 2008 violated HEERA. Second, Kyrias claims the
planned reorganization was an adverse action because, while the reorganization was never
fully implemented, McDonald nonetheless had already been offered and accepted the
3 Kyrias does not challenge the dismissal of this allegation on appeal and therefore we
do not address it further.
5

reclassified position, and Wilcher had told Kyrias that her current position would end on
July
1,
2008. Finally, Kyrias argues the charge alleged sufficient facts to establish that CSU
denied her August
1,
2008 request to work 100 percent timebase because
of
her protected
activity.
CSU' s Response to Appeal
CSU responds that it never denied Kyrias a pay raise and, moreover, the charge failed
to show "that the alleged denial was connected to her participation in protected activity." CSU
claims the planned reorganization was not an adverse action because it was never implemented
and thus resulted in no harm to Kyrias. As for the denial
of
Kyrias' request to work
100 percent timebase, CSU asserts that: (1) it would have disrupted School
of
Social Sciences
operations to take back work that had been redistributed to other employees as part
of
accommodating Kyrias' reduced timebase; and (2) the denial was reasonable given that Kyrias
had filed a grievance over the reorganization and thus had in effect rejected the proposed
website/analyst position, which CSU claims would have become full-time as
of
July
1,
2008.
DISCUSSION
1.
	New Supporting Evidence On Appeai
Kyrias' appeal contains new supporting evidence not presented to the Board agent.
"Unless good cause is shown, a charging party may not present on appeal new charge
allegations or new supporting evidence." (PERB Reg. 32635(b).4) 	The Board has found good
cause when "the information provided could not have been obtained through reasonable
diligence prior to the Board agent's dismissal
of
the charge." (Sacramento City Teachers
Association (Ferreira) (2002) PERB Decision No. 1503.)
4 PERB regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.
6

Kyrias' appeal contains new evidence regarding another School
of
Social Sciences
employee who did not receive pay raises and further information about the two temporary
ACII positions filled in September 2008. The appeal also contains exhibits showing School
of
Social Sciences employee salaries by position for the years 2004 to 2007; these exhibits were
not attached to the original or amended charge. Nothing in the appeal indicates that this
information was unavailable to Kyrias before the Board agent dismissed her charge.
Accordingly, Kyrias has not established good cause for the Board to consider this new
evidence on appeal.
The appeal also contains a recitation
of
pay raises received by School
of
Social
Sciences employees between 2004 and 2007. CSU asserts this information must be
disregarded because it was not presented to the Board agent. However, this information is
merely a narrative description
of
information contained in a spreadsheet attached as an exhibit
to the amended charge. Thus, this information is not new supporting evidence and the Board
may consider it in reviewing Kyrias' appeal.
2. 	Statute
of
Limitations
HEERA section 3563.2, subdivision (a) 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.) A charging party bears the
burden of demonstrating that the charge is timely filed. 	(Long Beach Community College
District (2009) PERB Decision No. 2002.)
Kyrias filed her unfair practice charge on August 21, 2008. Thus, PERB cannot find
that any conduct alleged in the charge which occurred prior to February 21, 2008, constituted
7

an unfair practice in violation
of
HEERA. The charge alleged three adverse actions that
occurred within the statute
of
limitations period: (1) the March 3, 2008 planned
reorganization; (2) Wilcher' s March 19 withdrawal
of
the reclassified position; and
(3) Wilcher' s August 1 denial
of
Kyrias' request to work 100 percent timebase. Kyrias
attempts to show the charge was timely as to the remaining alleged adverse actions in two
ways.
First, Kyrias claims that PERB may find a violation based on CSU's conduct from 2004
to the present under a continuing violation theory. Under the continuing violation doctrine, a
violation within the statute
of
limitations period may "revive" an earlier violation
of
the same
type that occurred outside
of
the limitations period. (Compton Community College District
(1991) PERB Decision No. 915; italics added.) The violation within the limitations period
must constitute an independent unfair practice without reference to the prior violation. (North
Orange County Community College District (1999) PERB Decision No. 1342.)
If
these
conditions are satisfied, PERB may fully consider the prior violation even though it occurred
outside the statute
of
limitations period.
Kyrias tries to invoke the continuing violation doctrine by characterizing all
of
the
adverse actions alleged in the charge as "deprivation[s]
of
economic opportunity." This
characterization is based on an overly broad view
of
the requirement that the alleged violations
within and outside the limitations period be
of
the same type. In Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959, the Board found the continuing violation
doctrine did not save untimely allegations that the union failed to return the employee's phone
calls and inform her of grievance meetings because the charge did not allege that the union
failed to return calls or inform the employee of grievance meetings during the limitations
period. Here, the charge alleged that CSU issued Kyrias a written reprimand and a counseling
8

letter, and denied her vacation time, all in 2004; gave her poor performance evaluations in
2006 and 2007; and failed to give her pay raises from 2004 through January 2008. The charge
did not allege that CSU reprimanded Kyrias, denied her vacation time, gave her a poor
performance evaluation or failed to give her a pay raise after February 21, 2008.
Consequently, the continuing violation doctrine does not save these untimely allegations.
Second, Kyrias asserts her allegation
of
discriminatory denial
of
pay raises is timely
because she did not learn until March 2008, while researching her grievance, that most
of
the
other administrative support employees in the School
of
Social Sciences had received "in-
range progression" raises from 2004 to 2007. The six-month statute
of
limitations period
begins on the date the charging party discovers the conduct that constitutes the unfair practice,
not the date the charging party discovers the legal significance
of
that conduct. (California
State Employees' Association (Darzins) (1985) PERB Decision No. 546-S.) The case before us
is similar to Empire Union School District (2004) PERB Decision No. 1650, where the
charging party alleged she received a low mark on her performance evaluation in May but did
not discover facts leading her to believe the low mark was retaliation for her protected activity
until November. The Board found the statute
of
limitations period began in May because the
employee knew
of
the low mark at that time and her later discovery that the low mark may
have been motivated by her protected activity did not re-start the limitations period.
Kyrias knew each time she received her paycheck that she had not been given an "in-
range progression" pay raise. Her discovery in March 2008 that other administrative support
employees had been given such raises was merely a discovery that her failure to receive a raise
may have been motivated by her protected activity. Just as in Empire Union School District,
supra, Kyrias' discovery of the legal significance of CSU's conduct did not re-start the
9

limitations period and therefore her allegation that CSU retaliated against her by failing to give
her "in-range progression" pay raises from 2004 through January 2008 is untimely.
3. 	Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in
violation
of
HEERA section 3571, subdivision (a), the charging party must show that: 	(1) the
employee exercised rights under HEERA; (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; Campbell Municipal Employees Assn.
v.
City
of
Campbell (1982)
131
Cal.App.3d 416; San Leandro Police Officers Assn.
v.
City
of
San Leandro (1976) 55
Cal.App.3d 553.)
a.
	Protected Activity and Employer Knowledge Thereof
It
is undisputed that Kyrias engaged in activity protected by HEERA when she:
(1) participated in a grievance proceeding in 2004 (Trustees
of
the California State University
(1990) PERB Decision No. 805-H); (2) filed an unfair practice charge with PERB in 2004
(Trustees
of
the Caiifornia State University (2008) PERB Decision No. 1970-H); and (3) filed
a grievance over the planned reorganization on March 7, 2008 (Regents
of
the University
of
California (1999) PERB Decision No. 1314-H).
It
is also undisputed that CSU, and
particularly Wilcher, knew
of
these protected activities.
The charge also alleged that Kyrias served as a union steward in 2004 and that "Kyrias
has engaged in protected activity campus wide from 2004 to present." However, the charge
does not allege any specific acts of protected conduct between 2004 and March 7, 2008. Thus,
even
if
Kyrias maintained her status as a union steward during that period, the charge does not
allege facts sufficient to establish that she engaged in protected activity between 2004 and

March 7, 2008. (See Chula Vista Elementary School District (1997) PERB Decision No. 1232
[charge alleging that employee was union site representative but not alleging that employee
engaged in actual protected conduct failed to establish prima facie case
of
discrimination].)
b.
	Adverse Action
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:
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; italics added; fn. omitted.)
As noted above, the charge alleged CSU took three adverse actions against Kyrias in
2008. Each action will be addressed in turn.
Planned Reorganization
On March 3, 2008, Wilcher informed Kyrias that she was planning to reorganize
support services effective July 1, 2008, by reclassifying Kyrias' position to a full-time position
and moving Kyrias to a position doing website updates and data analysis. After Kyrias filed a
grievance over the planned reorganization, Wilcher decided not to implement it. The Board
agent found that the planned reorganization did not constitute an adverse action because it was
never implemented. For the following reasons, we find the charge sufficiently alleged that the
planned reorganization constituted an adverse action.
HEERA section 3571, subdivision (a) makes it unlawful for a higher education
employer to "[i]mpose or threaten to impose reprisals on employees." Interpreting this
11

language, PERB has held that the threat
of
adverse action and the adverse action itself
constitute separate and independent violations
of
HEERA. (Regents
of
the University
of
California (2004) PERB Decision No. 1585-H.) Thus, a threat may constitute an adverse
action even
if
the employer never follows through with the threatened action. However, for a
threat to constitute an adverse action, it must give the employee unequivocal notice that the
employer has made a firm decision to take the threatened action. (County
of
Merced (2008)
PERB Decision No. 1975-M.)
Wilcher's March 3, 2008 email to Kyrias stated that the reorganization "will cause a
reclassification
of
what is now your current position" and that "you will not be able to continue
to work in that location beginning July 1st." (Italics added.) This language does not indicate
that the reorganization was merely a proposal but rather that it would happen as described.
Bolstering this conclusion is the allegation that by the time Wilcher informed Kyrias
of
the
reorganization, McDonald had already been offered and accepted the position that would result
from the reclassification
of
Kyrias' current position. Taken together, these allegations
establish that Wilcher had made a firm decision to reorganize Kyrias' position by the time she
informed Kyrias
of
the reorganization on March 3, 2008.
Having concluded that a firm decision was made and communicated to Kyrias, we must
next determine whether the planned reorganization would have constituted an adverse action.
As explained by Wilcher, the reorganization would result in Kyrias performing different job
duties in a different location. PERB has characterized similar moves as involuntary
reassignments or transfers. 	(E.g., Newark Unified School District, supra [teacher involuntarily
transferred from high school to junior high school].) An involuntary reassignment is an
adverse action when the working conditions of the new position are less favorable than those
of the previous position, even if the reassignment does not result in loss of pay or benefits.
12

(Fresno County Office
of
Education (2004) PERB Decision No. 1674.) PERB has found
adverse action when a reasonable person would consider the duties
of
the new position to be a
step down from those
of
the previous position. (Trustees
of
the California State University
(2006) PERB Decision No. 1853-H [warehouse worker reassigned to "count discarded
supplies"]; Pleasant Valley School District (1988) PERB Decision No. 708 [groundskeeper
reassigned from mowing duties to raking, pruning and watering].)
Kyrias alleged the proposed website/analyst position was a step down because the job
duties would be less complex than those
of
her current ACII position. In her current position,
Kyrias performs duties such as coordinating part-time faculty hiring, supervising student
employees and managing their payroll, and coordinating the faculty reappointment, tenure and
promotion process for the department. In contrast, the major duties
of
the proposed
website/analyst position are to convert course syllabi to PDF format and upload them to
department websites, and to compile requested data. The addition or change
of
similar job
duties typically would not constitute adverse action. (Alvord Unified School District (2009)
PERB Decision No. 2021.) However, a reasonable person would conclude that a change from
a position requiring the incumbent to work independently and exercise his or her own
judgment to a position that essentially involves basic clerical work would have an adverse
impact on the employee's employment. Consequently, we find that CSU took adverse action
against Kyrias in March 2008 by threatening to reassign her to the website/analyst position.
Withdrawal
of
Reclassified Position
On March 7, 2008, Kyrias filed a grievance over the reorganization. As a remedy,
Kyrias sought to be appointed to the reclassified position that McDonald had been hired to fill.
On March 19, Wilcher informed Kyrias that she no longer planned to reorganize her position.
Kyrias argues that this constituted an adverse denial of reclassification or promotion.
13

PERB has found denials
of
both reclassification and promotion to constitute adverse
action. (Carlsbad Unified School District (1989) PERB Decision No. 778 [reclassification];
State
of
California (Department
of
Corrections) (2001) PERB Decision No. 1435-S
[promotion].) Nonetheless, PERB has only found a denial to be adverse
if
the employee was
entitled to the reclassification or position denied. (State
of
California (Department
of
Corrections), supra [employee at top
of
promotional list]; State
of
California (Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S [same]; see Carlsbad Unified School
District, supra [employee qualified for reclassified position].)
There is no doubt Kyrias could perform the duties
of
the reclassified position because
they are largely identical to those
of
her current position. However, the reclassified position
also would require the incumbent to work full-time hours. 	Six days before Wilcher informed
Kyrias
of
the reorganization, Kyrias emailed Wilcher offering to continue to work an 80
percent timebase, instead
of
a 60 percent timebase, until the end
of
September 2008. Kyrias
did not indicate that she was willing or able to work a 100 percent timebase during those
months. Moreover, Kyrias admits in her appeal that she could not have worked a 100 percent
timebase between March and September 2008 because
of
her law school course schedule.
Accordingly, we find that because Kyrias was not qualified for the reclassified position at the
time it was withdrawn, the withdrawal was not an adverse action.
Denial
of
100 Percent Timebase
On August
1,
2008, Kyrias emailed Wilcher requesting "to go to 100% timebase
starting September 1, 2008." Later that day, Wilcher denied the request, stating: "The
workload for the departments you support does not necessitate a timebase of 100%."
A few days later, the School of Social Sciences posted job announcements for two
temporary, full-time ACII positions. The charge alleged that one of the positions provided
14

support to the Human Development department, which would have been supported by the
reclassified position as part
of
the reorganization. Kyrias argues on appeal that CSU could
have transferred this work to her to support a 100 percent timebase. 5
In her charge, Kyrias alleged that she lost approximately $6,000 in annual income as a
result
of
the denial. 	Similar to its holdings in cases involving denial
of
promotion or
reclassification, PERB has held that denial
of
a pay increase is an adverse action only when the
employee is contractually entitled to the increase. (The Regents
of
the University
of
California
(1997) PERB Decision No. 1188-H; Campbell Union High School District (1988) PERB
Decision No. 701; California State University, Long Beach (1987) PERB Decision
No. 641-H.) Nothing in the charge indicates that Kyrias was entitled to an increase in her work
hours, and thus a corresponding increase in her pay, in September 2008. Nor does the charge
establish there was available work CSU could have given to Kyrias to support a 100 percent
timebase. The allegation that one
of
the temporary ACII positions supported the Human
Development department does not demonstrate that work was enough to increase Kyrias'
timebase by 20 percent or that it was feasible for CSU to transfer that work to Kyrias.
Accordingly, the charge failed to show that Wilcher's denial
of
Kyrias' request for 100 percent
timebase constituted an adverse action.
c.
	Nexus Between Protected Activity and Adverse Action
Having found that CSU took adverse action against Kyrias on March 3, 2008 by
threatening to reassign her to the website/analyst position, we must now determine whether
CSU took that action because of Kyrias' protected activity.
5 As noted above, Kyrias presents new evidence in her appeal regarding the work done
by the two temporary ACII positions. Because we have found no good cause exists to present
this new evidence on appeal, we have not considered the new evidence in reaching our
decision in this matter.
15

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; City
of
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; City
of
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), supra; City
of
San Leandro, supra, 55
Cal.App.3d 553); ( 4) the employer's cursory investigation
of
the employee's misconduct (City
a/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 (Baker Valley
Unified School District (2008) PERB Decision No. 1993; County
of
San Joaquin (Health Care
Services) (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;
Novato Unified School District, supra.)
The charge alleged Kyrias engaged in protected activity when she participated in a
grievance proceeding and filed an unfair practice charge, both in 2004, and when she filed a
16

grievance on March 7, 2008. Because Kyrias filed the 2008 grievance after Wilcher had
threatened to reassign her, a causal connection cannot be established based on that protected
activity. (Berkeley Unified School District (2004) PERB Decision No. 1702.) Kyrias'
remaining protected activity took place more than three years before the alleged threat
of
reassignment. A lapse
of
several years between the protected activity and the adverse action
does not support a finding
of
nexus. (Los Angeles Community College District (1999) PERB
Decision No. 1325; State a/California (Department a/Corrections) (1996) PERB Decision
No. 1155-S.) Therefore, the charge failed to establish the necessary timing factor.
Nor did the charge establish any
of
the other nexus factors. 	The charge alleged that
Wilcher failed to follow university policies when she reclassified Kyrias' position. Sonoma
State University Policy 1993-3 provides, in relevant part:
Prior to altering an employee's assignments or responsibilities to
the extent that the classification level may be changed, the
department must consult with the Office
of
Human Services -
Human Resources to assess potential classification change and
cost impact.
The charge did not provide any facts to show that the consultation did not occur, as required by
PERB Reguiation 32615(a)(5).6 Moreover, the policy does not require the consultation to
occur before an employee is notified
of
the reclassification but only before the employee's job
duties are actually altered. Since the planned reclassification never occurred, the alleged facts
do not support a finding that Wilcher failed to follow established procedures.
The charge also alleged that Kyrias was treated differently than other administrative
support employees in the School of Social Sciences and that CSU gave her inadequate
6 PERB Regulation 32615(a)(5) requires that a charge contain "[a] clear and concise
statement of the facts and conduct alleged to constitute an unfair practice." This requires the
charge to state the "who, what, when, where and how" of the alleged unfair practice; "[m]ere
speculation, conjecture or legal conclusions are insufficient" to establish a prima facie case.
(United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.)
17

explanations
of
its actions. The allegations
of
disparate treatment involve events unrelated to
the planned reorganization and thus fail to establish that CSU treated Kyrias differently than
other employees with regard to the threat
of
reassignment. As to inadequate explanations, the
charge alleged that when Wilcher told Kyrias
of
the reorganization plan, she failed "to state
why Kyrias would not be qualified to manage the reorganized position since Kyrias's history
of
efficiency and accuracy is well documented." Though Wilcher may have failed to answer
this concern
of
Kyrias', the alleged reasons Wilcher gave for the reorganization were not
"exaggerated, vague, or ambiguous" because they clearly indicated that Wilcher intended to
increase efficiency and streamline processes by combining support for several departments into
one full-time position. These reasons were not "essentially meaningless" to Kyrias under the
circumstances and therefore do not support an inference
of
unlawful motive. (Baker Valley
Unified School District, supra.)
Finally, the charge alleged that CSU made inconsistent statements regarding the
reorganization. Specifically, Kyrias points to claims in CSU's position statement that Wilcher
merely presented the reorganization plan to Kyrias as a proposal. However, this claim does not
demonstrate that CSU gave Kyrias one justification for the reorganization on March 3, 2008,
and then gave a different justification later. Therefore, this allegation fails to show that CSU
gave Kyrias "inconsistent or contradictory justifications for its actions."
In sum, the charge failed to establish any
of
the factors necessary for PERB to find a
nexus between CSU's March 3, 2008 threat to reassign Kyrias to the website/analyst position
and her protected activity in 2004. Accordingly, because the charge did not allege facts
sufficient to show that CSU took adverse action against Kyrias because
of
her protected
activity, we affirm the Board agent's dismissal of the charge.
18

ORDER
The unfair practice charge in Case No. SF-CE-870-H is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Neuwald and Wesley joined in this Decision.
19