Garden Grove Unified School District (PERB 2086E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RENATE DERUITER,
Charging Party,
V.
GARDEN GROVE UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-5311-E
PERB Decision No. 2086
December 28, 2009
Appearances: Maiiha A. Torgow, Attorney, for Renate DeRuiter; Atkinson, Andelson, Loya,
Ruud & Romo by Anthony P. De Marco and Fermin Villegas, Attorneys, for Garden
Grove
Unified School District.
Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION
NEUWALD, Member: This case comes before the Public Employment Relations
Board (PERB or Board) on appeal by Renate DeRuiter (DeRuiter)
of
a Board agent's dismissal
(attached)
of
her unfair practice charge. The charge alleged that the Garden Grove Unified
School District (District) violated the Educational Employment Relations Act (EERA)1
by
retaliating against DeRuiter for engaging in protected activities. DeRuiter alleged that this
conduct constituted a violation
of
EERA section 3543.5. The Board agent found most
of
the
charge untimely and dismissed the remaining allegations for failure to state a prima facie case
of
retaliation.
We have reviewed the entire record in this case, and find the warning and dismissal	We have reviewed the entire record in this case, and find the warning and dismissal
letters well-reasoned and in accordance with applicable law. Accordingly, the Board hereby
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RENATE DERUITER,
Charging Party, 	Case No. LA-CE-5311-E
v . 	PERB Decision No. 2086
December 28, 2009	GARDEN GROVE UNIFIED SCHOOL
DISTRICT,
Respondent.
Appearances: Martha A. Torgow, Attorney, for Renate DeRuiter; Atkinson, Andelson, Loya,
Ruud & Romo by Anthony P. De Marco and Fermin Villegas, Attorneys, for Garden Grove
Unified School District.
Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION
NEUWALD, Member: This case comes before the Public Employment Relations
Board (PERB or Board) on appeal by Renate DeRuiter (DeRuiter) of a Board agent's dismissal
(attached) of her unfair practice charge. The charge alleged that the Garden Grove Unified
School District (District) violated the Educational Employment Relations Act (EERA) by
retaliating against DeRuiter for engaging in protected activities. DeRuiter alleged that this
conduct constituted a violation of EERA section 3543.5. The Board agent found most of the
charge untimely and dismissed the remaining allegations for failure to state a prima facie case
of retaliation.
letters well-reasoned and in accordance with applicable law. Accordingly, the Board hereby
EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

adopts the warning and dismissal letters as the decision of the Board itself, as supplemented by
the discussion below.
BACKGROUND
DeRuiter is a teacher with the District at Violette Elementary School. In or around
2006, she began serving as a campus grievance representative for the Garden Grove Education
Association (GGEA). 	On March 10, 2006, she engaged in protected activity by approaching
her supervisor to discuss concerns over access to bathroom facilities for bargaining unit
members after school hours and on weekends. In her original charge filed April 2, 2009,
DeRuiter alleges that, after this discussion and from 2006 through 2008, she received six
negative performance evaluations, as well as two letters of concern regarding her performance,
and was placed in the peer assistance review (PAR) program from April 27, 2007 until
June 13, 2008.
In her amended charge, DeRuiter alleged that she also engaged in protected activity by
assisting in the creation of a "Faculty Advisory Committee" and participated in that committee
from April 2007 through October 2008. She also alleged that she filed a grievance in
Spring 2008 concerning her placement in the PAR program and filed another grievance on
February 11, 2009 concerning her treatment by District Representative Janet Loya. She further
alleged that the District took adverse action against her by issuing negative reports of her
teaching performance on December 9, 2008, January 14, 2009, March 12, 2009 and April 29,
2009. 	She further alleged that on November 17, 2008 and June 2, 2009, the District denied her
requests for transfer. On May 1, 2009, the District issued an annual evaluation rating
DeRuiter' s performance as unsatisfactory.
2
adopts the warning and dismissal letters as the decision of the Board itself, as supplemented by
the discussion below.
BACKGROUND
DeRuiter is a teacher with the District at Violette Elementary School. In or around
2006, she began serving as a campus grievance representative for the Garden Grove Education
Association (GGEA). On March 10, 2006, she engaged in protected activity by approaching
her supervisor to discuss concerns over access to bathroom facilities for bargaining unit
members after school hours and on weekends. In her original charge filed April 2, 2009,
DeRuiter alleges that, after this discussion and from 2006 through 2008, she received six
negative performance evaluations, as well as two letters of concern regarding her performance,
and was placed in the peer assistance review (PAR) program from April 27, 2007 until
June 13, 2008.
In her amended charge, DeRuiter alleged that she also engaged in protected activity by
assisting in the creation of a "Faculty Advisory Committee" and participated in that committee
from April 2007 through October 2008. She also alleged that she filed a grievance in
Spring 2008 concerning her placement in the PAR program and filed another grievance on
February 11, 2009 concerning her treatment by District Representative Janet Loya. She further
alleged that the District took adverse action against her by issuing negative reports of her
teaching performance on December 9, 2008, January 14, 2009, March 12, 2009 and April 29,
2009. She further alleged that on November 17, 2008 and June 2, 2009, the District denied her
requests for transfer. On May 1, 2009, the District issued an annual evaluation rating
DeRuiter's performance as unsatisfactory.
2

DERUITER'S APPEAL
DeRuiter argues that she established a prima facie case
of
retaliation and that the
most
recent alleged adverse actions were a continuation
of
the initial actions taken in retaliation for
her protected activity in 2006.
DISCUSSION
New Evidence on Appeal
On appeal, DeRuiter submitted two additional documents that were not previously
provided to the Board agent. The first is a document dated September 11, 2009 signed
by
the
GGEA executive director that states: "My School Visit Logs indicate that I presented an F AC
(Faculty Advisory Committee) training to the staff at Violette Elementary School on May 24,
2007." The second is a document dated September
8,
2009, signed by a Violette Elementary
first grade teacher, which states: "I am writing this statement that I was observed for
15
or
more minutes approximately 4x during the school year 2007-2008."
PERB Regulation 32635(b) provides: "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence."2 (See, e.g.,
Fremont Unified School District (2003) PERB Decision No. 1571; Lodi Unified School
District (2002) PERB Decision No. 1486; Peralta Community College District (2001) PERB
Decision No. 1418; Regents
of
the University
of
California (1998) PERB Decision
No. 1271-H.) The purpose of this regulation "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
3
DERUITER'S APPEAL
DeRuiter argues that she established a prima facie case of retaliation and that the most
recent alleged adverse actions were a continuation of the initial actions taken in retaliation for
her protected activity in 2006.
DISCUSSION
New Evidence on Appeal
On appeal, DeRuiter submitted two additional documents that were not previously
provided to the Board agent. The first is a document dated September 11, 2009 signed by the
GGEA executive director that states: "My School Visit Logs indicate that I presented an FAC
(Faculty Advisory Committee) training to the staff at Violette Elementary School on May 24,
2007." The second is a document dated September 8, 2009, signed by a Violette Elementary
first grade teacher, which states: "I am writing this statement that I was observed for 15 or
more minutes approximately 4x during the school year 2007-2008."
PERB Regulation 32635(b) provides: "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence." (See, e.g.,
Fremont Unified School District (2003) PERB Decision No. 1571; Lodi Unified School
District (2002) PERB Decision No. 1486; Peralta Community College District (2001) PERB
Decision No. 1418; Regents of the University of California (1998) PERB Decision
No. 1271-H.) The purpose of this regulation "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
"PPERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
ERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3

agent can fully investigate the charge prior to deciding whether to issue a complaint or dismiss
the case." (South San Francisco Unified School District (1990) PERB Decision No. 830.)
DeRuiter has failed to offer any evidence
of
good cause for her failure to obtain and
provide this evidence to the Board agent to consider. Both documents refer to events that
occurred long before the filing
of
the charge. Therefore, we do not consider the new evidence
presented on appeal.
Prima Facie Case
of
Retaliation
We adopt the Board agent's discussion and analysis
of
the issues
of
timeliness 	and
retaliation as set forth in the attached warning and
dismi_ssal
letters, subject to the discussion
below.
3
EERA section 3543(a) provides, in relevant part:
Public school employees shall have the right to form, join, and
participate in the activities
of
employee organizations
of
their
own choosing for the purpose
of
representation on all matters
of
employer-employee relations. Public school employees shall have
the right to represent themselves individually in their employment
relations with the public school employer, except that once the
employees in an appropriate unit have selected an exclusive
representative and it has been recognized pursuant to
Section 3544.1 or certified pursuant to Section 3544.7, an
employee in that unit shall not meet and negotiate with the public
school employer.
We agree with the Board agent that the continuing violation doctrine does not apply in
this case. \Ve note, however, that vvhile actions outside the statutory limitations period may
not be considered as separate violations in the absence
of
an independent violation within the
limitations period (Trustees
of
the California State University (2009) PERB Decision
No. 2038-H), they may nonetheless be considered as background evidence of the employer's
motive. (See Trustees
of
the California State University (2008) PERB Decision No. 1970-H;
California State University, Hayward (Dees) (1991) PERB Decision No. 869-H;
North Sacramento School District (1982) PERB Decision No. 264.) Here, however, we find
insufficient evidence to support a finding that the evaluations and letters of concern issued prior
to the statutory period demonstrate unlawful motivation.
4
agent can fully investigate the charge prior to deciding whether to issue a complaint or dismiss
the case." (South San Francisco Unified School District (1990) PERB Decision No. 830.)
DeRuiter has failed to offer any evidence of good cause for her failure to obtain and
provide this evidence to the Board agent to consider. Both documents refer to events that
occurred long before the filing of the charge. Therefore, we do not consider the new evidence
presented on appeal.
Prima Facie Case of Retaliation
We adopt the Board agent's discussion and analysis of the issues of timeliness and
retaliation as set forth in the attached warning and dismissal letters, subject to the discussion
below.
EERA section 3543(a) provides, in relevant part:
Public school employees shall have the right to form, join, and
participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of
employer-employee relations. Public school employees shall have
the right to represent themselves individually in their employment
relations with the public school employer, except that once the
employees in an appropriate unit have selected an exclusive
representative and it has been recognized pursuant to
Section 3544.1 or certified pursuant to Section 3544.7, an
employee in that unit shall not meet and negotiate with the public
school employer.
We agree with the Board agent that the continuing violation doctrine does not apply in
this case. We note, however, that while actions outside the statutory limitations period may
not be considered as separate violations in the absence of an independent violation within the
limitations period (Trustees of the California State University (2009) PERB Decision
No. 2038-H), they may nonetheless be considered as background evidence of the employer's
motive. (See Trustees of the California State University (2008) PERB Decision No. 1970-H;
California State University, Hayward (Dees) (1991) PERB Decision No. 869-H;
North Sacramento School District (1982) PERB Decision No. 264.) Here, however, we find
insufficient evidence to support a finding that the evaluations and letters of concern issued prior
to the statutory period demonstrate unlawful motivation.

EERA section 3540.l(d) defines "[e]mployee organization" as "any organization which
includes employees
of
a public school employer and which has as one
of
its primary purposes
representing those employees in their relations with that public school employer." PERB has
found that a "Teachers Forum" composed
of
teachers from each school within the district
constituted an "employee organization" under Section 3540.l(d), where the group was
established and used to improve communications and solve problems, functioned as a
representative body, discussed negotiable subjects, and was generally perceived by employees
as
a better way
of
solving problems involving working conditions than through the exclusive
representative. (Oak Grove School District (1986) PERB Decision No. 582.) Similarly, PERB
found a "classified senate" to be an employee organization, where it was clear from the
organization's constitution and bylaws that the organization had a "representational purpose"
and the evidence established the organization's involvement in the employer's decision
making. (Ventura Community College District (1994) PERB Decision No. 1073.)
Both
of
these cases involved allegations
of
unlawful employer domination pursuant to
EERA section 3543.5(d).4 In contrast, in California School Employees Association & its
Chapter 36 (Peterson) (2004) PERB Decision No. 1683, the Board dismissed a charge alleging
that a union representing school employees discriminated and retaliated against a member for
serving as president of a classified senate, finding that the charging party failed to establish
that the classified senate was an employee organization within the meaning of EERA
section 3540
.1
(d).
4 EERA section 3543.5(d) makes it unlawful for a public school employer to "Dominate
re with the formation or administration of any employee organization, or contribute
financial or other support to it, or in any way encourage employees to join any organization in
preference to another."
or interfe
5
EERA section 3540.1(d) defines "[employee organization" as "any organization which
includes employees of a public school employer and which has as one of its primary purposes
representing those employees in their relations with that public school employer." PERB has
found that a "Teachers Forum" composed of teachers from each school within the district
constituted an "employee organization" under Section 3540.1(d), where the group was
established and used to improve communications and solve problems, functioned as a
representative body, discussed negotiable subjects, and was generally perceived by employees
as a better way of solving problems involving working conditions than through the exclusive
representative. (Oak Grove School District (1986) PERB Decision No. 582.) Similarly, PERB
found a "classified senate" to be an employee organization, where it was clear from the
organization's constitution and bylaws that the organization had a "representational purpose"
and the evidence established the organization's involvement in the employer's decision
making. (Ventura Community College District (1994) PERB Decision No. 1073.)
Both of these cases involved allegations of unlawful employer domination pursuant to
EERA section 3543.5(d).* In contrast, in California School Employees Association & its
Chapter 36 (Peterson) (2004) PERB Decision No. 1683, the Board dismissed a charge alleging
that a union representing school employees discriminated and retaliated against a member for
serving as president of a classified senate, finding that the charging party failed to establish
that the classified senate was an employee organization within the meaning of EERA
section 3540.1(d).
EERA section 3543.5(d) makes it unlawful for a public school employer to "Dominate
or interfere with the formation or administration of any employee organization, or contribute
financial or other support to it, or in any way encourage employees to join any organization in
preference to another."
5

We agree with the Board agent's determination that DeRuiter has failed to provide any
details concerning the activities
of
the FAC that would permit the Board to determine that the
F AC has a "representational purpose"
so
as to constitute an employee organization within the
meaning
of
EERA section 3540. l(d).
We also agree with the Board agent that DeRuiter' s complaints to her supervisor about
employee working conditions were protected activity. It is unclear whether DeRuiter was
acting in her capacity as a union representative when she complained to the principal about
after-hours bathroom and facility access and safety issues related to student discipline.
However, EERA section 3543 recognizes a protected right
of
self-representation that includes
the right
of
an individual to present complaints to the employer about unsafe working
conditions. (Pleasant Valley School District (1988) PERB Decision No. 708; Livingston
Union School District (1992) PERB Decision No. 965.) Therefore, even
if
DeRuiter was not
acting in her union capacity, her complaints constituted protected acts
of
self-representation.
ORDER
The unfair practice charge in Case No. LA-CE-5311-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Acting Chair Dowdin Calvillo and Member Wesley joined in this Decision.
6
We agree with the Board agent's determination that DeRuiter has failed to provide any
details concerning the activities of the FAC that would permit the Board to determine that the
FAC has a "representational purpose" so as to constitute an employee organization within the
meaning of EERA section 3540.1(d).
We also agree with the Board agent that DeRuiter's complaints to her supervisor about
employee working conditions were protected activity. It is unclear whether DeRuiter was
acting in her capacity as a union representative when she complained to the principal about
after-hours bathroom and facility access and safety issues related to student discipline.
However, EERA section 3543 recognizes a protected right of self-representation that includes
the right of an individual to present complaints to the employer about unsafe working
conditions. (Pleasant Valley School District (1988) PERB Decision No. 708; Livingston
Union School District (1992) PERB Decision No. 965.) Therefore, even if DeRuiter was not
acting in her union capacity, her complaints constituted protected acts of self-representation.
ORDER
The unfair practice charge in Case No. LA-CE-5311-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Acting Chair Dowdin Calvillo and Member Wesley joined in this Decision.
6

STATE OF CALIFORNIA 	/
PUBLIC EMPLOYME~ _._· RELATIONS BOAR
ARNOLD SCHWARZENEGGER, Governor	STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD D
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
P.E.R.B 	Fax: (818) 551-2820
September 3, 2009
Martha A. Torgow, Attorney
The Torgow Law Firm
9413 Donna Avenue
Northridge, CA 91324
Re: 	Renate DeRuiter v. Garden Grove Unified School District
Unfair Practice Charge No. LA-CE-5311-E
DISMISSAL LETTER
Dear Ms. Torgow:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 2, 2009. Renate DeRuiter (DeRuiter or Charging Party)
alleges that the Garden Grove Unified School District (District or Respondent) violated section
3543.5(a) of the Educational Employment Relations Act (EERA or Act)' by retaliating against
Charging Party was informed in the attached Warning Letter dated June 26, 2009, that the
above-referenced charge did not state a prima facie case. She 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. She was further advised that, unless she amended the
charge to state a prima facie case or withdrew it prior to July 8, 2009, the charge would be
dismissed. DeRuiter received an extension of time until July 27, 2009 to file the amended
charge and, on that date, the amended charge was filed.
In the amended charge, DeRuiter continues to allege that the District engaged in "pattern of
retaliation" against her. DeRuiter was informed in the June 26, 2009 Warning Letter that
PERB is prohibited from issuing a complaint regarding allegations of unlawful conduct
occurring more than six months prior to the date that the charge was filed. (Coachella Valley
Mosquito and Vector Control District v. Public Employment Relations Board (2005) 35
Cal.4th 1072; Los Angeles Unified School District (2007) PERB Decision No. 1929.) 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 has the burden of establishing that the charge is
timely filed. (PERB Regulation 32615(a)(5); Compton Unified School District (2009) PERB
Decision No. 2015.)
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.
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
September 3, 2009
Martha A. Torgow, Attorney
The Torgow Law Firm
9413 Donna A venue
Northridge, CA 91324
Re: 	Renate DeRuiter v. Garden Grove Unified School District
Unfair Practice Charge No. LA-CE-5311-E
DISMISSAL LETTER
Dear Ms. Torgow:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 2, 2009. Renate DeRuiter (DeRuiter or Charging Party)
alleges that the,Garden Grove Unified School District (District or Respondent) violated section
3543.S(a) of the Educational Employment Relations Act (EERA or Act)1 by retaliating against
her for engaging in protected activities.
.V.
her for engaging in protected activities.
Charging Party was informed in the attached Warning Letter dated June 26, 2009, that the
above-referenced charge did not state a prima facie case. She 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. She was further advised that, unless she amended the
charge to state a prima facie case or withdrew it prior to July 8, 2009, the charge would be
dismissed. DeRuiter received an extension of time until July 27, 2009 to file the amended
charge and, on that date, the amended charge was filed.
In the amended charge, DeRuiter continues to allege that the District engaged in "pattern of
retaliation" against her. DeRuiter was informed in the June 26, 2009 Warning Letter that
PERB is prohibited from issuing a complaint regarding allegations of unlawful conduct
occurring more than six months prior to the date that the charge was filed. 	(Coachella Valley
Mosquito and Vector Control District v. Public Employment Relations Board (2005) 35
Cal.4th 1072; Los Angeles Unified School District (2007) PERB Decision No. 1929.) 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 has the burden of establishing that the charge is
timely filed. 	(PERB Regulation 32615(a)(5); Compton Unified School District (2009) PERB
Decision No. 2015.)
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-5311-E
September 3, 2009
Page 2
In this case, the charge was filed on April 2, 2009. This means that the statutory period
extends back until October 2, 2008. DeRuiter alleges misconduct by the District ranging
from
May 18, 2008 through December 12, 2008. DeRuiter was informed in the June 26, 2009
Warning Letter that she had not established that the allegations
of
conduct occurring
outside
of
the statute
of
limitations period were timely filed.
DeRuiter contends that alleged events occurring outside
of
the statute
of
limitations should not
be dismissed under the continuing violation doctrine. According to 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." (Trustees
of
the California
State University (Kyrias) (2009) PERB Decision No. 2038-H; Compton Community College
District (1991) PERB Decision No. 915.) The violation within the statute
of
limitations
period
must, however, constitute an independent violation without reference to the earlier violations.
(Trustees
of
the California State University (Kyrias), supra, PERB Decision No. 2038-H,
citing North Orange County Community College District (1999) PERB Decision No. 1342.)
Therefore, it is appropriate to first consider whether DeRuiter' s allegations
of
misconduct
occurring within the statute
of
limitations period constitute violations
of
EERA without
reference to the earlier violations.
I.
	Retaliation for Protected Activity
As explained in the June 26, 2009 Warning Letter, to demonstrate that an employer
discriminated or retaliated against an employee in violation
of
EERA section 3543.5(a),
the
charging party must show that: 	(1) the employee exercised rights under EERA; (2) the
employer had knowledge
of
the exercise
of
those rights; (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 (Campbel[); San
Leandro Police Officers Assn.
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553 (San
Leandro).)
A. 	Alleged Protected Activity With Knowledge
of
the District
In the original charge, DeRuiter alleges that, in March 2006, she served as a grievance
representative and held a discussion with her supervisor concerning faculty member bathroom
access priviieges. As explained in the June 26, 2009 Warning Letter, participation as a union
officer and complaining to management about working conditions constitute protected activity.
(See Klamath-Trinity Joint Unified School District (2005) PERB Decision No. 1778;
Los Angeles Unified School District (1999) PERB Decision No. 1338.)
In the amended charge, DeRuiter alleges that she assisted in creating something titled the
Faculty Advisory Committee. EERA protects employees' right to form, join, and participate in
the activities of employee organizations. (EERA, § 3543(a).) An 	organization" is
defined as any organization that includes public school employees and has as one of its
primary purposes representing those employees in their relations with the public school
"employee
LA-CE-5311-E
September 3, 2009
Page 2
In this case, the charge was filed on April 2, 2009. This means that the statutory period
extends back until October 2, 2008. DeRuiter alleges misconduct by the District ranging from
May 18, 2008 through December 12, 2008. DeRuiter was informed in the June 26, 2009
Warning Letter that she had not established that the allegations of conduct occurring outside of
the statute of limitations period were timely filed.
DeRuiter contends that alleged events occurring outside of the statute of limitations should not
be dismissed under the continuing violation doctrine. According to 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." (Trustees of the California
State University (Kyrias) (2009) PERB Decision No. 2038-H; Compton Community College
District (1991) PERB Decision No. 915.) The violation within the statute of limitations period
must, however, constitute an independent violation without reference to the earlier violations.
Trustees of the California State University (Kyrias), supra, PERB Decision No. 2038-H,
citing North Orange County Community College District (1999) PERB Decision No. 1342.)
Therefore, it is appropriate to first consider whether DeRuiter's allegations of misconduct
occurring within the statute of limitations period constitute violations of EERA without
reference to the earlier violations.
I. 	Retaliation for Protected Activity
As explained in the June 26, 2009 Warning Letter, to demonstrate that an employer
discriminated or retaliated against an employee in violation of EERA section 3543.5(a), the
charging party must show that: (1) the employee exercised rights under EERA; (2) the
employer had knowledge of the exercise of those rights; (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).)
A. 	Alleged Protected Activity With Knowledge of the District
In the original charge, DeRuiter alleges that, in March 2006, she served as a grievance
representative and held a discussion with her supervisor concerning faculty member bathroom
access privileges. As explained in the June 26, 2009 Warning Letter, participation as a union
officer and complaining to management about working conditions constitute protected activity.
(See Klamath-Trinity Joint Unified School District (2005) PERB Decision No. 1778;
Los Angeles Unified School District (1999) PERB Decision No. 1338.)
In the amended charge, DeRuiter alleges that she assisted in creating something titled the
Faculty Advisory Committee. EERA protects employees' right to form, join, and participate in
the activities of employee organizations. (EERA, $ 3543(a).) An "employee organization" is
defined as any organization that includes public school employees and has as one of its
primary purposes representing those employees in their relations with the public school

LA-CE-5311-E
September 3, 2009
Page 3
employer. 	(EERA, § 3540.l(d).) In Ventura Community College District (1994) PERB
Decision No. 1073, the Board held that a non-union employee group constituted an "employee
organization" under EERA section 3540
.1
(
d)
where it was clear from the organization's
constitution and bylaws that the organization had a "representational purpose." In contrast, in
California School Employees Association & its Chapter 36 (Peterson) (2004) PERB Decision
No. 1683, the Board found that a classified senate did not quaiify as an employee organization
where the charging party failed to present facts regarding the purpose and structure
of
the
organization. In this case, DeRuiter alleges that she participated in the Faculty Advisory
Committee from April 2007 through October 2008. However, DeRuiter does not provide any
details concerning the activities
of
this committee and accordingly, she does not establish that
one
of
the primary purposes
of
the Faculty Advisory Committee was to represent District
employees in their employment relationship with the District. Thus, DeRuiter does not
demonstrate that forming the Faculty Advisory Committee qualifies as protected activity.
DeRuiter also asserts in the amended charge that she filed a grievance in Spring 2008
concerning her placement in the District's Peer Assistance Review (PAR) program and filed
another grievance on February 11, 2009 concerning District representative Janet Loya's
conduct towards DeRuiter. The filing and processing
of
grievances constitutes protected
activity.· (City
of
Modesto (2008) PERB Decision No. 1994-M; Ventura County Community ·
College District (1999) PERB Decision No. 1323.) Moreover, as the District took action in
response to DeRuiter's grievances, it was aware of these activities.
B. 	Adverse Actions
In the amended charge, DeRuiter supplements and clarifies what she contends constitute
adverse employment actions. 	On December 9, 2008 and January 14, 2009, March 12, 2009,
and April 29, 2009, the District issued DeRuiter reports containing negative comments about
DeRuiter's teaching performance based on observations from her supervisors. On November
17, 2008 and June 2, 2009, the District denied DeRuiter's requests to be transferred to different
positions. On May
1,
2009, the District issued DeRuiter an annual evaluation that rated
her
as
unsatisfactory.
C. 	Nexus
In this case, the alleged adverse actions referenced above are approximately two years or more
removed from DeRuiter's alleged March 2006 protected activity. As explained in the June 26,
2009 Warning Letter, the length of time between these events is not sufficient to support a
nexus or causal connection. (Oakland Unified School District (2003) PERB Decision
No. 1512.) However, DeRuiter's later protected activity, namely the grievances she filed in
Spring 2008 and on February 11, 2009, occur closer in time to the District's allegedly adverse
actions. But, as temporal proximity alone is not sufficient to establish the required nexus (see
Moreland Elementary School District (1982) PERB Decision No. 227), PERB must undertake
further investigation as to whether there is additional evidence of a causal connection.
LA-CE-5311-E
September 3, 2009
Page 3
employer. (EERA, $ 3540.1(d).) In Ventura Community College District (1994) PERB
Decision No. 1073, the Board held that a non-union employee group constituted an "employee
organization" under EERA section 3540.1(d) where it was clear from the organization's
constitution and bylaws that the organization had a "representational purpose." In contrast, in
California School Employees Association & its Chapter 36 (Peterson) (2004) PERB Decision
No. 1683, the Board found that a classified senate did not qualify as an employee organization
where the charging party failed to present facts regarding the purpose and structure of the
organization. In this case, DeRuiter alleges that she participated in the Faculty Advisory
Committee from April 2007 through October 2008. However, DeRuiter does not provide any
details concerning the activities of this committee and accordingly, she does not establish that
one of the primary purposes of the Faculty Advisory Committee was to represent District
employees in their employment relationship with the District. Thus, DeRuiter does not
demonstrate that forming the Faculty Advisory Committee qualifies as protected activity.
DeRuiter also asserts in the amended charge that she filed a grievance in Spring 2008
concerning her placement in the District's Peer Assistance Review (PAR) program and filed
another grievance on February 11, 2009 concerning District representative Janet Loya's
conduct towards DeRuiter. The filing and processing of grievances constitutes protected
activity. (City of Modesto (2008) PERB Decision No. 1994-M; Ventura County Community
College District (1999) PERB Decision No. 1323.) Moreover, as the District took action in
response to DeRuiter's grievances, it was aware of these activities.
B. 	Adverse Actions
In the amended charge, DeRuiter supplements and clarifies what she contends constitute
adverse employment actions. On December 9, 2008 and January 14, 2009, March 12, 2009,
and April 29, 2009, the District issued DeRuiter reports containing negative comments about
DeRuiter's teaching performance based on observations from her supervisors. On November
17, 2008 and June 2, 2009, the District denied DeRuiter's requests to be transferred to different
positions. On May 1, 2009, the District issued DeRuiter an annual evaluation that rated her as
unsatisfactory.
C. 	Nexus
In this case, the alleged adverse actions referenced above are approximately two years or more
removed from DeRuiter's alleged March 2006 protected activity. As explained in the June 26,
2009 Warning Letter, the length of time between these events is not sufficient to support a
nexus or causal connection. (Oakland Unified School District (2003) PERB Decision
No. 1512.) However, DeRuiter's later protected activity, namely the grievances she filed in
Spring 2008 and on February 11, 2009, occur closer in time to the District's allegedly adverse
actions. But, as temporal proximity alone is not sufficient to establish the required nexus (see
Moreland Elementary School District (1982) PERB Decision No. 227), PERB must undertake
further investigation as to whether there is additional evidence of a causal connection.

LA-CE-5311-E
September 3, 2009
Page 4
DeRuiter does not provide sufficient information to further demonstrate nexus. Although
DeRuiter contends that she was treated differently from other teachers at the District, she does
not provide facts supporting this conclusion. And, as stated in the June 26, 2009 Warning
Letter, mere conclusory remarks are not sufficient to demonstrate a violation. (State of
California (Department of Food and Agriculture) (1994) PERB Decision No. 1071-S; Charter
Oak Unij?ed School District (1991) PERB Decision No. 873.) DeRuiter appears to allege that
she was evaluated differently and more frequently than her coworkers. 	In Simi Valley Unified
School District (2004) PERB Decision No. 1714, the Board found that the unusual frequency
and tenor of a supervisor's classroom observations was evidence of nexus where a supervisor
visited the teacher 26 times in a period of two months, which was far more frequent than what
took place with any other teacher. (Ibid.) In the present case, DeRuiter does not provide any
information concerning existing policies for evaluating or observing teachers. Nor does she
discuss the frequency or manner of observations and evaluations of other teachers. Thus, there
is insufficient information to determine whether DeRuiter was treated differently from other
teachers.
DeRuiter also contends that the District improperly denied her request to be evaluated by
someone other than by members of the District's human resources office. An employer's
departure from existing procedures concerning evaluations may be evidence of nexus. 	(See
Regents of the University of California (2004) PERB Decision No. 1592-H). In this case,
however, DeRuiter does not demonstrate that she was entitled to a different evaluator. As
already discussed above, DeRuiter does not provide information regarding the existing
evaluation process. Nor does DeRuiter explain under what circumstances a unit member may
request an independent evaluator or whether other employees were afforded this opportunity.
Thus, there is insufficient information to conclude that this allegation supports DeRuiter's
retaliation claim.
DeRuiter also alleges that the comments made during some of the District's observations and
evaluations were based on false information and inaccurate data. An employer's cursory
investigation or improper justification for its actions is evidence of nexus. (Coachella Valley
Mosquito & Vector Control District (2009) PERB Decision No. 2031-M; Novato, supra, PERB
Decision No. 210.) In this case, DeRuiter does not provide sufficient information about the
allegedly false information to determine whether this supports a finding of nexus. For
example, it is unclear from the charge whether the allegedly false information concerned the
observations and evaluation occurring within the statutory limitations period or whether the
District made use of this information in its earlier, untimely evaluations and observations.
Thus, PERB is unable to 	whether the timely adverse actions were based upon a
cursory investigation or improper justification. Therefore, this also does not support
DeRuiter' s retaliation claim.
determine
DeRuiter also contends that the District threatened DeRuiter. Specifically, DeRuiter alleges
that District Principal Jason Bevacqua stated that DeRuiter should go into a different line of
work and that he believed that DeRuiter would be placed into the PAR program in the future.
The Board has found that an employer's hostile comments towards union or other protected
activity is evidence of nexus. (Contra Costa Community College District (2006) PERB
LA-CE-5311-E
September 3, 2009
Page 4
DeRuiter does not provide sufficient information to further demonstrate nexus. Although
DeRuiter contends that she was treated differently from other teachers at the District, she does
not provide facts supporting this conclusion. And, as stated in the June 26, 2009 Warning
Letter, mere conclusivemarks are not sufficient to demonstrate a violation. (State of
California (Department of Food and Agriculture) (1994) PERB Decision No. 1071-S; Charter
Oak Unified School District (1991) PERB Decision No. 873.) DeRuiter appears to allege that
she was evaluated differently and more frequently than her coworkers. In Simi Valley Unified
School District (2004) PERB Decision No. 1714, the Board found that the unusual frequency
and tenor of a supervisor's classroom observations was evidence of nexus where a supervisor
visited the teacher 26 times in a period of two months, which was far more frequent than what
took place with any other teacher. (Ibid.) In the present case, DeRuiter does not provide any
information concerning existing policies for evaluating or observing teachers. Nor does she
discuss the frequency or manner of observations and evaluations of other teachers. Thus, there
is insufficient information to determine whether DeRuiter was treated differently from other
teachers.
DeRuiter also contends that the District improperly denied her request to be evaluated by
someone other than by members of the District's human resources office. An employer's
departure from existing procedures concerning evaluations may be evidence of nexus. (See
Regents of the University of California (2004) PERB Decision No. 1592-H). In this case,
however, DeRuiter does not demonstrate that she was entitled to a different evaluator. As
already discussed above, DeRuiter does not provide information regarding the existing
evaluation process. Nor does DeRuiter explain under what circumstances a unit member may
request an independent evaluator or whether other employees were afforded this opportunity.
Thus, there is insufficient information to conclude that this allegation supports DeRuiter's
retaliation claim.
DeRuiter also alleges that the comments made during some of the District's observations and
evaluations were based on false information and inaccurate data. An employer's cursory
investigation or improper justification for its actions is evidence of nexus. (Coachella Valley
Mosquito & Vector Control District (2009) PERB Decision No. 2031-M; Novato, supra, PERB
Decision No. 210.) In this case, DeRuiter does not provide sufficient information about the
allegedly false information to determine whether this supports a finding of nexus. For
example, it is unclear from the charge whether the allegedly false information concerned the
observations and evaluation occurring within the statutory limitations period or whether the
District made use of this information in its earlier, untimely evaluations and observations.
Thus, PERB is unable to determine whether the timely adverse actions were based upon a
cursory investigation or improper justification. Therefore, this also does not support
DeRuiter's retaliation claim.
DeRuiter also contends that the District threatened DeRuiter. Specifically, DeRuiter alleges
that District Principal Jason Bevacqua stated that DeRuiter should go into a different line of
work and that he believed that DeRuiter would be-placed into the PAR program in the future.
The Board has found that an employer's hostile comments towards union or other protected
activity is evidence of nexus. (Contra Costa Community College District (2006) PERB

LA-CE-5311-E
September 3, 2009
Page 5
(
Decision No. 1852.) The issue
is
whether a reasonable person under the same circumstances
would understand the comments to be directed towards the protected activity or protected
group. 	(Ibid.) In this case, the comments at issue
do
not bear any direct relationship to
DeRuiter's activities in 2006 or her later grievance activity in either 2008 or 2009. Rather,
both sets
of
comments appear to concern her individual teaching performance. Thus, there is
insufficient evidence to determine that these comments demonstrate the District's animus
towards DeRuiter' s protected activities.
For these reasons, DeRuiter does not establish that the District retaliated against her and these
allegations are dismissed.
II. 	Application of the Continuing Violation Doctrine	Application
of
the Continuing Violation Doctrine
In order for the continuing violation doctrine to apply, DeRuiter must establish that the
District's conduct within the statutory limitations period amounts to an independent violation
of
EERA. (See Trustees
of
the California State University (Kyrias), supra, PERB Decision
No. 203 8-H.) As discussed above, DeRuiter does not establish that the District's actions
within the statutory limitations period amount to a violation
of
EERA. Consequently,
DeRuiter does not establish that the continuing violation doctrine applies here. Thus, any
allegation
of
wrongdoing by the District occurring prior to October 2, 2008 is dismissed as
untimely.
Right to Appeal
Pursuant to PERB Regulations,2 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
of
this dismissal. 	(Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies
of
ali documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8,
§§
32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (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, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8,
§§
32090 and
32130.)
2 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001etseq.
LA-CE-5311-E
September 3, 2009
Page 5
Decision No. 1852.) The issue is whether a reasonable person under the same circumstances
would understand the comments to be directed towards the protected activity or protected
group. (Ibid.) In this case, the comments at issue do not bear any direct relationship to
DeRuiter's activities in 2006 or her later grievance activity in either 2008 or 2009. Rather,
both sets of comments appear to concern her individual teaching performance. Thus, there is
insufficient evidence to determine that these comments demonstrate the District's animus
towards DeRuiter's protected activities.
For these reasons, DeRuiter does not establish that the District retaliated against her and these
allegations are dismissed.
II.
In order for the continuing violation doctrine to apply, DeRuiter must establish that the
District's conduct within the statutory limitations period amounts to an independent violation
of EERA. (See Trustees of the California State University (Kyrias), supra, PERB Decision
No. 2038-H.) As discussed above, DeRuiter does not establish that the District's actions
within the statutory limitations period amount to a violation of EERA. Consequently,
DeRuiter does not establish that the continuing violation doctrine applies here. Thus, any
allegation of wrongdoing by the District occurring prior to October 2, 2008 is dismissed as
untimely.
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 of
this dismissal. (Cal. Code Regs, tit. 8, $ 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, $8 32135, subd. (a) and 32130; see also Gov. Code, $ 11020, subd. (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, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, $5 32090 and
32130.)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-5311-E
September 3, 2009
Page 6
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231	(916) 322-8231
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. 	(Cal. Code Regs, tit. 8, § 32635, subd. (b).)
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, § 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, § 32135, subd. (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. 	(Cal. Code Regs, tit. 8, § 32132.)
[CONTINUES ON THE NEXT PAGE]
LA-CE-5311-E
September 3, 2009
Page 6
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
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. (Cal. Code Regs, tit. 8, $ 32635, subd. (b).)
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, $ 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, $ 32135, subd. (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. (Cal. Code Regs, tit. 8, $ 32132.)
[CONTINUES ON THE NEXT PAGE]

LA-CE-5311-E
September 3, 2009
Page 7
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final
when
the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By
	~'
LA-CE-5311-E
September 3, 2009
Page 7
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMIR. BOGERT
General Counsel
By
Eric J. Cu
Regional Attorney
Attachment
cc: Renate DeRuiter; Anthony P. DeMarco
Eric
J.
C~
Regional Attorney
Attachment
cc: Renate DeRuiter; Anthony
P.
DeMarco

STATE OF CALIFORNIA	STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
P.E.R.B
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (8 I 8) 551-2804
Fax: (818) 551-2820
June 26, 2009
Martha
A.
Torgow, Attorney
9413 Donna Ave.
Northridge, CA 91324
Re: 	Renate DeRuiter
v.
Garden Grove Unified School District
Unfair Practice Charge No. LA-CE-5311-E
WARNING LETTER
Dear Ms. Torgow:
ARNOLD
SCHWARZENEGGER, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 2, 2009. Renate DeRuiter (DeRuiter or Charging Party)
alleges that the Garden Grove Unified School District (District or Respondent) violated section
3543.5(a)
of
the Educational Employment Relations Act (EERA or Act) 1 by retaliating against
her for engaging in protected activities.
DeRuiter was hired as a teacher at the District on September
6,
1991. Teachers in the District
are in a bargaining unit exclusively represented by the Garden Grove Education Association
(Union). The Union and the District are parties to a Collective Bargaining Agreement
containing a grievance procedure that culminates in binding arbitration.
From 1992 through 2005, DeRuiter received satisfactory evaluations from her supervisors.
These evaluations were conducted by different supervisors	. 	over this time .
period.
In or around March 2006, DeRuiter began serving as a campus grievance representative for the
Union. As part
of
her duties as a Union grievance representative, on March 10, 2006, DeRuiter
approached then-Principal Jason Bevacqua to discuss concerns over bathroom access for
bargaining unit members.
After this discussion, and from 2006 through 2008, DeRuiter's received six evaluations where
she was rated as either "needs improvement" or as "unsatisfactorv." The latest of these
evaluations occurred on Decemb~r 12, 2008.2 In addition, on M~y 18, 2006 and October 16,
2006, the District issued DeRuiter letters of concern regarding her teaching performance. 	On
April 2 7, 2007, the District placed DeRuiter in the Peer Assistance Review (PAR) program.
DeRuiter was taken out of the PAR program on June 13, 2008.
EEERA 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 The other, earlier, evaluations occurred on December 4, 2006, February 28, 2007,
April 27, 2007, February 13, 2008, and April 30, 2008.
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
June 26, 2009
Martha A. Torgow, Attorney
9413 Donna Ave.
Northridge, CA 91324
Re: 	Renate DeRuiter v. Garden Grove Unified School District
Unfair Practice Charge No. LA-CE-5311-E
WARNING LETTER
Dear Ms. Torgow:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 2, 2009. Renate DeRuiter (DeRuiter or Charging Party)
alleges that the Garden Grove Unified School District (District or Respondent) violated section
3543.5(a) of the Educational Employment Relations Act (EERA or Act)' by retaliating against
her for engaging in protected activities.
DeRuiter was hired as a teacher at the District on September 6, 1991. Teachers in the District
are in a bargaining unit exclusively represented by the Garden Grove Education Association
(Union). The Union and the District are parties to a Collective Bargaining Agreement
containing a grievance procedure that culminates in binding arbitration.
From 1992 through 2005, DeRuiter received satisfactory evaluations from her supervisors.
These evaluations were conducted by different supervisors over this time period.
In or around March 2006, DeRuiter began serving as a campus grievance representative for the
Union. As part of her duties as a Union grievance representative, on March 10, 2006, DeRuiter
approached then-Principal Jason Bevacqua to discuss concerns over bathroom access for
bargaining unit members.
After this discussion, and from 2006 through 2008, DeRuiter's received six evaluations where
she was rated as either "needs improvement" or as "unsatisfactory." The latest of these
evaluations occurred on December 12, 2008." In addition, on May 18, 2006 and October 16,
2006, the District issued DeRuiter letters of concern regarding her teaching performance. On
April 27, 2007, the District placed DeRuiter in the Peer Assistance Review (PAR) program.
DeRuiter was taken out of the PAR program on June 13, 2008.
ERA 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 The other, earlier, evaluations occurred on December 4, 2006, February 28, 2007,
April 27, 2007, February 13, 2008, and April 30, 2008.

LA-CE-5311-E
June 26, 2009
Page 2
Discussion:
PERB Regulation 32615(a)(5)3 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.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
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. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
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.)
In this case, the charge was filed on April 2, 2009. This means that the statutory period
extends back until October 2, 2008. Therefore, any allegations of wrongdoing by the District
occurring prior to October 2, 2008 are untimely unless an exception applies.
DeRuiter alleges several actions by the District occurring prior to October 2, 2008. These
allegations include the issuance of letters of concern on May 18, 2006 and October 16, 2008,
evaluating DeRuiter as needing improvement on February 28, 2007 and February 13, 2008,
and evaluating DeRuiter as unsatisfactory on April 27, 2007 and April 30, 2008. DeRuiter
does not establish that any of these allegations were timely filed. 	(See Los Angeles Unified
School District (2009) PERB Decision No. 2011 [holding allegations of wrongdoing occurring
outside the statute of limitations were not made timely by other allegations of actions occurring
within the statutory period].) In addition, DeRuiter alleges that the District engaged in
"tremendous harassment" and "constant monitoring" of her actions, but does not specify
whether these allegations refer to actions apart from the evaluations and the letters of concern.
To the extent that these allegations refer to different actions by the District, DeRuiter does not
explain what actions the District actually took and when such actions were taken. As such,
DeRuiter neither provides "a clear and concise statement of facts" supporting her unfair
practice charge (PERB Regulation 32615(a)(5)), nor establishes that such allegations were
timely filed. 	(Los Angeles Unified School District, supra, PERB Decision No. 1929.)
DeRuiter's legal conclusions that are alleged to have taken place at unspecified times, are not
3 PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
LA-CE-5311-E
June 26, 2009
Page 2
Discussion:
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."
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.)
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
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. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
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.)
In this case, the charge was filed on April 2, 2009. This means that the statutory period
extends back until October 2, 2008. Therefore, any allegations of wrongdoing by the District
occurring prior to October 2, 2008 are untimely unless an exception applies.
DeRuiter alleges several actions by the District occurring prior to October 2, 2008. These
allegations include the issuance of letters of concern on May 18, 2006 and October 16, 2008,
evaluating DeRuiter as needing improvement on February 28, 2007 and February 13, 2008,
and evaluating DeRuiter as unsatisfactory on April 27, 2007 and April 30, 2008. DeRuiter
does not establish that any of these allegations were timely filed. (See Los Angeles Unified
School District (2009) PERB Decision No. 2011 [holding allegations of wrongdoing occurring
outside the statute of limitations were not made timely by other allegations of actions occurring
within the statutory period].) In addition, DeRuiter alleges that the District engaged in
"tremendous harassment" and "constant monitoring" of her actions, but does not specify
whether these allegations refer to actions apart from the evaluations and the letters of concern.
To the extent that these allegations refer to different actions by the District, DeRuiter does not
explain what actions the District actually took and when such actions were taken. As such,
DeRuiter neither provides "a clear and concise statement of facts" supporting her unfair
practice charge (PERB Regulation 32615(a)(5)), nor establishes that such allegations were
timely filed. (Los Angeles Unified School District, supra, PERB Decision No. 1929.)
DeRuiter's legal conclusions that are alleged to have taken place at unspecified times, are not
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-5311-E
June 26, 2009
Page 3
(
sufficient to meet her burden. (See Charter Oak Unified School District, supra, PERB
Decision No. 873.)
2.	2. 	Retaliation for Protected Activities
Considering oniy DeRuiter's timeiy aliegations, DeRuiter contends that the District conducted
the December 12, 2008 evaluation in retaliation for her serving as a Union grievance
representative in 2006. 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 a/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:
The test which must be satisfied is not whether the employee
found the 	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.
employer's
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
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. 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 	for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; San Leandro, supra,
55	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
justifications
LA-CE-5311-E
June 26, 2009
Page 3
sufficient to meet her burden. (See Charter Oak Unified School District, supra, PERB
Decision No. 873.)
Retaliation for Protected Activities
Considering only DeRuiter's timely allegations, DeRuiter contends that the District conducted
the December 12, 2008 evaluation in retaliation for her serving as a Union grievance
representative in 2006. To demonstrate that an employer discriminated or retaliated against an
employee in violation of EERA section 3543.5(a), the charging party must show that: (1) the
employee exercised rights under EERA; (2) the employer had knowledge of the exercise of
those rights; (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:
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 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;
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,
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

LA-CE-5311-E
June 26, 2009
Page 4
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.)
A. 	Protected Activity With the District's Knowledge
DeRuiter alleges that she served as the Union grievance representative and had approached her
then-supervisor to discuss concerns about employees' access to school restrooms in March
2006. The Board has previously held that participation as a union officer and complaining to
management about working conditions both constitute protected activities. 	(See Los
Angeles
Unified School District (1999) PERB Decision No. 1338; Klamath-Trinity Joint Unified School
District (2005) PERB Decision No. 1778.) Thus, DeRuiter establishes that she engaged
in
protected activity. Moreover, because she addressed at least one
of
her complaints to her
supervisor, the District had knowledge of her activities.
B.
	Adverse Action
DeRuiter alleges that, on December 12, 2008, the District gave her an unsatisfactory
evaluation. The Board has previously determined that a negative evaluation constitutes
an
adverse employment action. (Woodland Joint Unified School District (1987) PERB Decision
No. 628.)
C.
	Nexus
DeRuiter does not establish a sufficient nexus between her protected activities and the
District's adverse action. DeRuiter engaged in the alleged protected activities in or around
March 2006, approximately two years prior to receiving the December 12, 2008 evaluation.
This period
of
time is not sufficient to establish the necessary nexus. 	(Oakland Unified School
District (2003) PERB Decision No. 1512.) In Alisa! Union Elementary School District (2000)
PERB Decision No. 1412, the Board found that a
"_long
history
of
conflict with the District,
coupled with other factors, justifies an inference
of
unlawful motivation" even where two years
had passed between the protected activities and the adverse action. In that case, the employee
at issue had been involved in PERB litigation against the employer for the past two years. 	In
the present case, DeRuiter does not provide facts suggesting a "long history of conflict" exists
between herself and the District. As explained above, DeRuiter's conclusory remarks that the
District engaged in "tremendous harassment" does not include sufficient facts to support her
case. (See PERB Regulation 32615(a)(5).) DeRuiter's previous evaluations, in and
of
themselves, also do not support a finding of nexus. (See Fresno County Office
of
Education
(1993) PERB Decision No. 978 [holding that frequent evaluations, without more information,
was insufficient to establish retaliation].)
Moreover, DeRuiter does not provide other information suggesting nexus. DeRuiter does not
contend that the evaluations contained inaccurate information. Nor does she contend that the
District either violated its policy on conducting evaluations or treated DeRuiter differently
LA-CE-5311-E
June 26, 2009
Page 4
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.)
A. 	Protected Activity With the District's Knowledge
DeRuiter alleges that she served as the Union grievance representative and had approached her
then-supervisor to discuss concerns about employees' access to school restrooms in March
2006. The Board has previously held that participation as a union officer and complaining to
management about working conditions both constitute protected activities. (See Los Angeles
Unified School District (1999) PERB Decision No. 1338; Klamath-Trinity Joint Unified School
District (2005) PERB Decision No. 1778.) Thus, DeRuiter establishes that she engaged in
protected activity. Moreover, because she addressed at least one of her complaints to her
supervisor, the District had knowledge of her activities.
B. 	Adverse Action
DeRuiter alleges that, on December 12, 2008, the District gave her an unsatisfactory
evaluation. The Board has previously determined that a negative evaluation constitutes an
adverse employment action. (Woodland Joint Unified School District (1987) PERB Decision
No. 628.)
C. 	Nexus
DeRuiter does not establish a sufficient nexus between her protected activities and the
District's adverse action. DeRuiter engaged in the alleged protected activities in or around
March 2006, approximately two years prior to receiving the December 12, 2008 evaluation.
This period of time is not sufficient to establish the necessary nexus. (Oakland Unified School
District (2003) PERB Decision No. 1512.) In Alisal Union Elementary School District (2000)
PERB Decision No. 1412, the Board found that a "long history of conflict with the District,
coupled with other factors, justifies an inference of unlawful motivation" even where two years
had passed between the protected activities and the adverse action. In that case, the employee
at issue had been involved in PERB litigation against the employer for the past two years. In
the present case, DeRuiter does not provide facts suggesting a "long history of conflict" exists
between herself and the District. As explained above, DeRuiter's conclusery remarks that the
District engaged in "tremendous harassment" does not include sufficient facts to support her
case. (See PERB Regulation 32615(a)(5).) DeRuiter's previous evaluations, in and of
themselves, also do not support a finding of nexus. (See Fresno County Office of Education
(1993) PERB Decision No. 978 [holding that frequent evaluations, without more information,
was insufficient to establish retaliation].)
Moreover, DeRuiter does not provide other information suggesting nexus. DeRuiter does not
contend that the evaluations contained inaccurate information. Nor does she contend that the
District either violated its policy on conducting evaluations or treated DeRuiter differently

LA-CE-5311-E
June 26, 2009
Page 5
from other teachers. DeRuiter does allege that the District "abused" its evaluation process but,
again, her conclusory remarks are not sufficient to support her case. (See Charter Oak Unified
School District, supra, PERB Decision No. 873.) Thus, DeRuiter does not establish that the
District retaliated against her for serving as a grievance representative or for speaking to
her
supervisor in March 2006.
4
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	
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
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 July
8,
2009,5 PERB will
dismiss
you~rge.	
If
you have any questions, please call me at the above telephone number.
Sincer,ef,
"-)1!:J-e'
J. Gu
~gional
Attorney
EC
In Eastside Union School District (1984) PERB Decision No. 466, the Board
that a prima facie case is established where the Board agent is able to make
"a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings,
if
not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
explained
LA-CE-5311-E
June 26, 2009
Page 5
from other teachers. DeRuiter does allege that the District "abused" its evaluation process but,
again, her conclusivemarks are not sufficient to support her case. (See Charter Oak Unified
School District, supra, PERB Decision No. 873.) Thus, DeRuiter does not establish that the
District retaliated against her for serving as a grievance representative or for speaking to her
supervisor in March 2006.
For these reasons the charge, as presently written, does not state a prima facie case." If there
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
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 July 8, 2009, PERB will
dismiss your Charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Erje J. Cu
Regional Attorney
EC
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)