Fontana Unified School District (PERB 2147E)

STATE OF CALIFORNIA	STATE OF CALIFORNIA
DECISION OF THE	DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
LEROY JESSIE MARTINEZ,	LEROY JESSIE MARTINEZ,
Charging Party,	Charging Party,
vv..
FONTANA UNIFIED SCHOOL DISTRICT,	FONTANA UNIFIED SCHOOL DISTRICT,
Respondent.	Respondent.
Case No. LA-CE-5266-E
PERB Decision No. 2147
December 10, 2010
Case No. LA-CE-5266-E
PERB Decision No. 2147
December 10, 2010
Appearance: Law Offices
of
John
R.
Setlich by John
R.
Setlich, Attorney, for Leroy Jessie	Law Offices of John R. Setlich by John R. Setlich, Attorney, for Leroy Jessie
Martinez.	Martinez.
Appearance:
Before Dowdin Calvillo, Chair; Mckeag and Wesley, Members.	Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION	DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board	McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Leroy Jessie Martinez (Martinez)
of
a Board agent's dismissal(PERB or Board) on appeal by Leroy Jessie Martinez (Martinez) of a Board agent's dismissal
(attached)
of
his unfair practice charge. The charge alieged that the Fontana Unified School(attached) of his unfair practice charge. The charge alleged that the Fontana Unified School
District (District) violated the Educational Employment Relations Act (EERA) ' by retaliating	District (District) violated the Educational Employment Relations Act (EERA) 1 by retaliating
against Martinez for engaging in protected conduct, unlawfully maintaining personnel records	against Martinez for engaging in protected conduct, unlawfully maintaining personnel records
regarding Martinez; negotiating in bad faith; and breaching an umvritten settlement agreement	regarding Martinez; negotiating in bad faith; and breaching an unwritten settlement agreement
for an undisclosed amount
of
backpay.	for an undisclosed amount of backpay.
The Board agent found Martinez failed to plead sufficient facts to demonstrate theThe Board agent found Martinez failed to plead sufficient facts to demonstrate the
District violated its obligations under EERA. Accordingly, the Board agent dismissed theDistrict violated its obligations under EERA. Accordingly, the Board agent dismissed the
charge for failure to establish a prima facie case.	charge 	failure to establish a prima 	case.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,	EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.	
all statutory references herein are to the Government Code.

2
We have reviewed the entire record in this matter and find the warning and dismissal	We have reviewed the entire record in this matter and find the warning and dismissal
letters well-reasoned, adequately supported by the record and in accordance with applicable	letters well-reasoned, adequately supported by the record and in accordance with applicable
law. 	Consequently, the Board hereby adopts the warning and dismissal letters as a decision
oflaw. Consequently, the Board hereby adopts the warning and dismissal letters as a decision of
the Board itself, subject to the following brief discussion regarding the lack
of
nexus betweenthe Board itself, subject to the following brief discussion regarding the lack of nexus between
the District's alleged adverse actions and Martinez' protected conduct.	
the District's alleged adverse actions and Martinez' protected conduct 2
.
DISCUSSION	DISCUSSION
In his appeal, Martinez argues that there was a clear nexus between the District's denial	In his appeal, Martinez argues that there was a clear nexus between the District's denial
of his backpay benefits and his "grievance victory." For the reasons set forth below,
we
find
of his backpay benefits and his "grievance victory." For the reasons set forth below, we find
no
such nexus exists.	no such nexus exists.
in	One of the four elements that must be proved in a retaliation case is that the employer	One
of
the four elements that must be proved 	a retaliation case is that the employer
took an adverse action against its employee because the employee exercised his rights
undertook an adverse action against its employee because the employee exercised his rights under
EERA. 	(Novato.) With regard to this element, although the timing
of
the employer's adverseEERA. (Novato.) With regard to this element, although the timing of the employer's adverse
action in close temporal proximity to the employee's protected conduct is an important factor	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,
(North Sacramento School District (1982) PERB Decision No. 264), it does not, without more,
demonstrate
t.he
necessary connection or "nexus" between the adverse action and the protecteddemonstrate the necessary connection or "nexus" between the adverse action and the protected
conduct. (Moreland Elementary School District (1982) PERB Decision No. 227.) Thus, inconduct. (Moreland Elementary School District (1982) PERB Decision No. 227.) Thus, in
addition to timing, a charging party must also establish at least one additional factor. Relevantaddition to timing, a charging party must also establish at least one additional factor. Relevant
to
this discussion, one such additional factor acknowledged by the Board is an employer'sto this discussion, one such additional factor acknowledged by the Board is an employer's
departure from established procedures and standards when dealing with the employee (Santa
departure from established procedures and standards when dealing with the employee (Santa
Clara Unified School District (1979) PERB Decision No. 104.)	Clara Unified School District (1979) PERB Decision No. 104.)
2 The Board does not adopt the references to Campbell Municipal Employees Assn.
v.
" The Board does not adopt the references to Campbell Municipal Employees Assn. v.
City
of
Campbell (1982) 131 Cal.App.3d 416 and San Leandro Police Officers Assn. v. City
ofCity of Campbell (1982) 131 Cal.App.3d 416 and San Leandro Police Officers Assn. v. City ofSan Leandro (1976) 55 Cal.App.3d 553 at p.3 dismissal letter and pp. 3-4 warning letter, asSan Leandro (1976) 55 Cal.App.3d 553 at p.3 dismissal letter and pp. 3-4 warning letter, as
support for the well-established discrimination test set forth in Novato Unified School District
support for the well-established discrimination test set forth in Novato Unified School District
(1982) PERB Decision No. 210 (Novato).	(1982) PERB Decision No. 210 (Novato).
2

3
In the instant case, the alleged oral grievance settlement and the discontinuation
ofIn the instant case, the alleged oral grievance settlement and the discontinuation of
back.pay benefits are in relatively close proximity. 	Accordingly, the timing element is met.	backpay benefits are in relatively close proximity. Accordingly, the timing element is met.
to	With regard to the nexus factors, Martinez appears to argue that the District's failure to	With regard to the nexus factors, Martinez appears 	argue that the District's failure to
follow the terms
of
a 2001 grievance in an different involuntary transfer case constitutes a	follow the terms of a 2001 grievance in an different involuntary transfer case constitutes a
departure from established procedures capable
of
supporting a finding
of
nexus. 	However, as
departure from established procedures capable of supporting a finding of nexus. However, as
arbitrator's	discussed in the dismissal letter, Martinez offers no support regarding why an arbitrator's	discussed in the dismissal letter, Martinez offers no support regarding why an
award
on
August
1,
2001, entitled Martinez to a similar remedy in June 2007. Further, theaward on August 1, 2001, entitled Martinez to a similar remedy in June 2007. Further, the
arbitrator's award does not state that Martinez should be entitled to a similar award in laterarbitrator's award does not state that Martinez should be entitled to a similar award in later
transfers. 	Last, Martinez did not provide facts demonstrating that the District agreed totransfers. Last, Martinez did not provide facts demonstrating that the District agreed to
provide Martinez with terms similar to those in the arbitrator's award. Accordingly, Martinez
provide Martinez with terms similar to those in the arbitrator's award. Accordingly, Martinez
failed to establish that the District departed from established procedures when
i,t
allegedlyfailed to establish that the District departed from established procedures when it allegedly
discontinued the payment
of
back.pay benefits.	discontinued the payment of backpay benefits.
factors.	Martinez offers no further analysis regarding the remaining nexus factors.	Martinez offers no further analysis regarding the remaining nexus
Consequently, we find Martinez failed to establish a nexus between his protected activity and	Consequently, we find Martinez failed to establish a nexus between his protected activity and
the District's alleged adverse actions and, therefore, find the charge was properly dismissed for	the District's alleged adverse actions and, therefore, find the charge was properly dismissed for
failure to establish a prima facie case.	failure to establish a prima facie case.
ORDER	ORDER
The unfair practice charge in Case No. LA-CE-5266-E is hereby DISMISSEDThe unfair practice charge in Case No. LA-CE-5266-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.	WITHOUT LEAVE TO AMEND.
Member	Chair Dowdin Calvillo and Member Wesley joined in this Decision.	Chair Dowdin Calvillo and 	Wesley joined in this Decision.
3

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor	ARNOLD SCHWARZENEGGER, Governor	STATE OF CALIFORNIA
PUBLIC	PUBLICEMPLOYMENT	EMPLOYME~REL	1.· RELATIONS BOARD	ATIONS BOARD
Los Angeles Regional Office
3530 WilshireBivd., Suite 1435	Blvtl':;·suite 1435
Los Angeles, CA 90010-233	Los Angeles, CA 90010-2334
Telephone: (213) 736-2907	Telephone: (213) 736-2907
Fax: (213) 736-4901	Fax: (213) 736-4901
Los Angeles Regional Office
3530 Wilshire
4
PERB
February 9, 2009	February 9, 2009
John Setlich, Esq.	John Setlich, Esq.
Law Offices of Setlich	Law Offices of Setlich
12592 Central Ave.	12592 Central Ave.
Chino, CA 91710-3507	Chino, CA 91710-3507
Re:	Re: 	Leroy Jessie Martinez v. Fontana Unified School District	Leroy Jessie Martinez v. Fontana Unified School District
Unfair Practice Charge No. LA-CE-5266-E	Unfair Practice Charge No. LA-CE-5266-E
DISMISSAL LETTER	DISMISSAL LETTER
Dear Mr. Setlich:	Dear Mr. Setlich:
The above-referenced unfair practice charge was filed with the Public Employment Relations	The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 21, 2008. Leroy Jessie Martinez (Martinez or Charging	Board (PERB or Board) on October 21, 2008. Leroy Jessie Martinez (Martinez or Charging
Party) alleges that the Fontana Unified School District (District or Respondent) violated	Party) aileges that the Fontana Unified School District (District or Respondent) violated
section 3543.5 of the Educational Employment Relations Act (EERA or Act) 1 by interfering	section 3543.5 of the Educational Employment Relations Act (EERA or Act)' by interfering
with his protected rights.	with his protected rights.
Charging Party was informed in the attached Warning Letter dated January 13, 2009, that the	Charging Party was informed in the attached Warning Letter dated January 13, 2009, that the
above-referenced charge did not state a prima facie case. Martinez was advised that, if there	above-referenced charge did not state a prima facie case. Martinez was advised that, if there
were any factual inaccuracies or additional facts that would correct the deficiencies explained	were any factual inaccuracies or additional facts that would correct the deficiencies explained
in that letter, he should amend the charge. Martinez was further advised that, unless he	in that letter, he should amend the charge. Martinez was further advised that, unless he
amended the charge to state a prima facie case or withdrew it prior to January 23, 2009, the	amended the charge to state a prima facie case or withdrew it prior to January 23, 2009, the
charge would be dismissed. On January 21, 2009, you requested and received, on Martinez's	charge would be dismissed. On January 21, 2009, you requested and received, on Martinez's
behalf, an extension of time to file the amended charge until February 4, 2009. On that day,	behalf, an extension of time to file the amended charge until February 4, 2009. On that day,
Martinez filed an amended charge.	Martinez filed an amended charge.
In the amended charge, Martinez clarifies the basis for his charge. Martinez alleges that the	In the amended charge, Martinez clarifies the basis for his charge. Martinez aiieges that the
District refused to comply with the terms of an alleged June 6, 2008 agreement in retaliation	District refused to comply with the terms of an alleged June 6, 2008 agreement in retaliation
for Martinez's conduct of engaging in protected activities. Thus, Martinez's allegations that	for Martinez's conduct of engaging in protected activities. Thus, Martinez's allegations that
the District negotiated with Martinez in bad faith, breached an agreement, and improperly	the District negotiated with Martinez in bad faith, breached an agreement, and improperly
maintained an alternate personnel file will not be addressed further.	maintained an alternate personnel file will not be addressed further.
Martinez alleges that he was employed by the District as a teacher since September 1986.	Martinez alleges that he was employed by the District as a teacher since September 1986.
During his employment at the District, Martinez received several evaluations with positive	During his employment at the District, Martinez received several evaluations with positive
comments. Martinez also served in various capacities with his Union, the Fontana Teachers	comments. Martinez also served in various capacities with his Union, the Fontana Teachers
Association (Union) from 1991 through 2002. For instance, Martinez worked as a crisis	Association (Union) from 1991 through 2002. For instance, Martinez worked as a crisis
committee member, middle school representative, bargaining team member, and building	committee member, middle school representative, bargaining team member, and building
1
·
EERA is codified at Government Code section 3540 et seq. The text of the EERA and	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	the Board's Regulations may be found on the Internet at www.perb.ca.gov..

LA-CE-5266-E
February 9, 2009
Page 2
representative.	representative. Martinez played an active role in negotiating the 2001 Memorandum of	Martinez played an active role in negotiating the 2001 Memorandum
of
Understanding (MOU) in place between the Union and the District.	Understanding (MOU) in place between the Union and the District.
Shortly after MOU negotiations	Shortly after MOU negotiations concluded in 2000, on June 30, 2000, the District informed	concluded in 2000, on June 30, 2000, the District informed
Martinez that he was	Martinez that he was being transferred to another school site. Martinez filed a timely	being transferred to another school site. Martinez filed a timely
grievance over the transfer in 2001.	grievance over the transfer in 2001. On August 1, 2001, an arbitrator sustained Martinez's	On August
1,
2001, an arbitrator sustained Martinez'sgrievance	grievance and ordered the District to reinstate Martinez to his former position as well as	and ordered the District to reinstate Martinez to his former position as well as
compensate him for lost wages. This included a $1500 Site Monitor stipend.	compensate
him
for lost wages. This included a $1500 Site Monitor stipend.
On June 14, 2007, the District transferred Martinez a second time. This transfer occurred	On June 14, 2007, the District transferred Martinez a second time. This transfer occurred
shortly after Martinez complained that the District had requested that a police officer observe	shortly after Martinez complained that the District had requested that a police officer
observe
his classroom in January 2007. In addition, Martinez complained that the District improperly	his classroom in January 2007. In addition, Martinez complained that the District improperly
had certain students exercise in their regular school clothes.	had certain students exercise in their regular school clothes.
On October 1, 2007, Martinez filed a grievance over the June 14, 2007 transfer. On May 28,	On October 1, 2007, Martinez filed a grievance over the June 14, 2007 transfer. 	On
May
28,
2008, the parties settled Martinez's grievance by returning him to his former position, making	2008, the parties settled Martinez's grievance by returning him to his former position,
making
him eligible for the District's supplemental retirement program if he chose to retire on or	him eligible for the District's supplemental retirement program
if
he chose to retire
on
or
before June	before June 3, 2008, and placing him on paid administrative leave if he agreed to retire on	3, 2008, and placing him on paid administrative leave if he agreed to retire
on
January
1,
2009	January 1, 2009 (May 28, 2008 Agreement).	(May 28, 2008 ,A~greement).
On June 6, 2008, Martinez and his wife met with District Superintendent Jane Smith to discuss	On June 6, 2008, Martinez and his wife met with District Superintendent Jane Smith
to
discuss
compensating	compensating Martinez in a fashion similar to the arbitrator's August 1, 2001 order (June 6,	Martinez in a fashion similar to the arbitrator's August 1, 2001 order
(June
6,
2008 meeting). However, Martinez does not specify whether this meeting was held to	2008 meeting). However, Martinez does not specify whether this meeting was held to
supplement the May 28, 2008 Agreement or whether it was meant to address another dispute	supplement the May 28, 2008 Agreement or whether it was meant to address another
dispute
between Martinez and the District.	between Martinez and the District.
On June 9, 2008, Martinez and Smith executed a document entitled "General Release and	On June 9, 2008, Martinez and Smith executed a document entitled "General Release
and
Settlement Agreement With	Settlement Agreement With Resignation" (June 9, 2008 Agreement). According to the June 9,	Resignation" (June 9, 2008 Agreement). According to
the June
9,
2008 Agreement, Martinez would	2008 Agreement, Martinez would retire on June 10, 2008, but effective December 31, 2008;	retire on June 10, 2008, but effective December 31,
2008;Martinez would	Martinez would be made eligible for the District's supplemental retirement plan; Martinez	be made eligible for the District's supplemental retirement plan;
Martinez
would be placed on paid administrative leave until December 31, 2008; the District would	would
be
placed on paid administrative leave until December 31, 2008; the District
would
remove reference to Martinez's 2007 transfer and seal the contents of all files kept on	remove reference to l\1aitinez's 2007 transfer and seal the contents
of
all files kept on
Martinez. The parties further agreed that the June 9, 2008 Agreement constituted a "full and	Martinez. The parties further agreed that the June 9, 2008 Agreement constituted a
"full and
complete settlement of	complete settlement of Martinez's claims against the District and release of all claims	Martinez's claims against the District and release of all claims
therein[.]" The parties further agreed that Martinez would release the District from "any and	therein[.]" The parties further agreed that Martinez would release the District from
"any
and
all claims or causes of action arising out
of
Martinez's	all claims or causes of action arising out of Martinez's employment with the District[.]" The	employment with the District[.]" Theterms
of
the agreement	terms of the agreement did not include any provision entitling Martinez to a $1500 site monitor	did not include any provision entitling Martinez to a $1500 site monitor
stipend or the	stipend or the provision of a letter of recommendation.	provision
of
a letter of recommendation.
Discussion:	Discussion:
LA-CE-5266-E
February 9, 2009
Page 2 	-
As stated in the January	As stated in the January 13, 2009 Warning Letter, to state a prima facie case for unlawful	13, 2009 Warning Letter, to state a prima facie case for unlawful
retaliation, the charging party must show:retaliation, the charging party must show: (1) the employee exercised rights under EERA;	(1) the employee exercised rights under
EERA;
(2) the employer had knowledge of the exercise of those rights; (3)	(2) the employer had knowledge of the exercise of those rights; (3) the employer took adverse	the employer took adverse
action against the employee; and (4) the employer took the action	action against the employee; and (4) the employer took the action because of the exercise of	because of the exercise of

LA-CE-5266-E
February 9, 2009
Page 3
those rights. (Novato Unified School District (1982) PERB Decision No. 210 (Novato);	those rights. (Novato Unified School District (1982) PERB Decision No. 210 (Novato);
Campbell Municipal	Campbell Municipal Employees Assn. v. City of Campbell (1982) 131	Employees Assn.
v.
City
of
Campbell (1982) 131Cal.App.3d	Cal.App.3d416	416
(Campbell);	(Campbell); San Leandro Police Officers Assn. v. City of San Leandro (1976) 55	San Leandro Police Officers Assn.
v.
City
of
San Leandro (1976) 55 Cal.App.3d	Cal.App.3d
553 (San Leandro).) In determining whether evidence of adverse action is established, the	553 (San Leandro).) In determining whether evidence
of
adverse action is established,
the
Board uses an objective test and	Board uses an objective test and will not rely upon the subjective reactions of the employee.	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	(Palo Verde Unified School District (1988) PERB Decision No. 689.) In a later decision, the
Board further explained that:	Board further explained that:
The test which must be satisfied is not whether the employee	The test which must be satisfied is not whether the employee
found	found the employer's action to be adverse, but whether a	the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider	reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's	the action to have an adverse impact on the employee's
employment.	employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote	(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)	omitted.)
In the present case, Martinez does not establish that the District's failure to adhere to an	In the present case, Martinez does not establish that the District's failure to adhere to
an
unwritten agreement reached on June 6, 2008 constitutes an adverse employment action for	unwritten agreement reached on June 6, 2008 constitutes an adverse employment action for
several reasons. First, Martinez does not demonstrate that the June 6, 2008 Meeting	several reasons. First, Martinez does not demonstrate that the June 6, 2008 Meeting
culminated in an agreement.	culminated in an agreement. Martinez contends that "[the record shows that Mr. Martinez'	Martinez contends that "[t]he record shows that Mr.
Martinez'
transfer of 2001 had set a pre-established financial remedy and that his second 2007 transfer	transfer
of
2001 had set a pre-established financial remedy and that his second 2007
transfer
because of this past practice precedent was entitled to the same back pay remedies." However,	because
of
this past practice precedent was entitled to the same back pay remedies." However,
Martinez offers no support as to the reasons an arbitrator's award on August 1, 2001 entitled	Martinez offers no support as to the reasons an arbitrator's award on August 1, 2001
entitled
Martinez to a similar remedy in June 2007. The arbitrator's award	Martinez to a similar remedy in June 2007. The arbitrator's award does not state that Martinez	does not state that
Martinez
should be entitled to a similar award in later transfers. Nor does Martinez provide facts	should be entitled to a simiiar award in later transfers. Nor does Martinez provide facts
demonstrating	demonstrating that the District agreed to provide Martinez with terms similar to those in the	that the District agreed to provide Martinez with terms similar to those
in
the
arbitrator's award. Because Martinez does not demonstrate that he and the District reached an	arbitrator's award. Because Martinez does not demonstrate that he and the District
reached
an
agreement, he does not demonstrate that a reasonable person would find the	agreement, he does not demonstrate that a reasonable person would find the District's actions	District's actions
to	to be adverse to employment.	be adverse to employment. 2
LA-CE-5266-E
February 9, 2009
Page 3
Second,	Second, even assuming that the parties reached an agreement during the June 6, 2008 Meeting,	even assuming that the parties reached an agreement during the June 6, 2008 t.-1eeting,
Martinez does not specify the terms of that agreement. Martinez appears to allege that	Martinez does not specify the terms
of
that agreement. Martinez appears to allege that
Martinez was entitled to an unspecified number of $1500 payments and a letter of	Martinez was entitled to an unspecified number of $1500 payments and a letter of
recommendation from the District. However, because	recommendation from the District. However, because this has not been made clear, Martinez	this has not been made clear,
Martinez
has not provided "a clear and concise statement	has not provided "a clear and concise statement of facts" supporting this claim. (PERB	of facts" supporting this claim. (PERB
2
To the extent that Martinez alleges that the District unilaterally changed a policy	To the extent that Martinez alleges that the District unilaterally changed a
policy
established by the arbitrator on August 1, 2001, as explained in the January 13, 2009 Warning	established by the arbitrator on August 1, 2001, as explained in the January 13, 2009 Warning
Letter, Martinez does not establish that he, as an individual employee, has standing to allege a	Letter, Martinez does not establish that he, as an individual employee, has standing to allege a
violation of the duty to negotiate in good faith. (See State of California (Department of	violation of the duty to negotiate in good faith. (See State of California (Department
of
Corrections & Rehabilitation) (2007) PERB Decision No. 1923-S.)	Corrections & Rehabilitation) (2007) PERB Decision No. 1923-S.)

LA-CE-5266-E
February 9, 2009
Page 4
Regulation 32615(a)(5). 3 is	Regulation 32615(a)(5).') Without knowing the terms of the alleged agreement, PERB is	) Without knowing the terms of the alleged agreement, PERB
unable to determine whether a reasonable person would find the violation of those terms to be	unable to determine whether a reasonable person would find the violation of those terms to be
adverse to employment.	adverse to employment.
Third, Martinez does not demonstrate that the terms of the alleged June 6, 2008 agreement	Third, Martinez does not demonstrate that the terms of the alleged June 6, 2008 agreement
were not superseded by the June 9, 2008 agreement, of which there is no dispute over the	were not superseded by the June 9, 2008 agreement, of which there is no dispute over the
District's compliance. Martinez does not specify why he and the District entered into the	District's compliance. Martinez does not specify why he and the District entered into the
alleged June 6, 2008 agreement. However, because the terms of the alleged agreement appear	alleged June 6, 2008 agreement. However, because the terms of the alleged agreement appear
to include compensation for a position Martinez believed he was entitled to, it is reasonable to	to include compensation for a position Martinez believed he was entitled to, it is reasonable to
believe that the agreement concerned Martinez's employment with the District. To the extent	believe that the agreement concerned Martinez's employment with the District. To the extent
that this agreement was reached concerning "any and all claims or causes of action arising out	that this agreement was reached concerning "any and all claims or causes of action arising out
of Martinez's employment with the District[,]" the alleged June 6, 2008 agreement is	of Martinez's employment with the District[,]" the alleged June 6, 2008 agreement is
superseded by the later June 9, 2008 Agreement. Accordingly, Martinez does not demonstrate	superseded by the later June 9, 2008 Agreement. Accordingly, Martinez does not demonstrate
that it was improper for the District to not comply with the terms of the earlier June 6, 2008	that it was improper for the District to not comply with the terms of the earlier June 6, 2008
agreement.	agreement.
Martinez also appears to contend that the District provided "adverse documents" containing	Martinez also appears to contend that the District provided "adverse documents" containing
"confidential	"confidential materials" about Martinez to the police. Martinez does not specify when this	materials" about Martinez to the police. Martinez does not specify when this
disclosure takes place but it appears to have occurred prior to his 2007 transfer. As explained	disclosure takes place but it appears to have occurred prior to his 2007 transfer. As explained
in the January 13, 2009 Warning Letter, PERB is prohibited from issuing a complaint with	in the January 13, 2009 Warning Letter, PERB is prohibited from issuing a complaint with
respect to any charge based upon an alleged unfair practice occurring more than six moriths	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 Vector Control District v. PERB	prior to the filing of the charge. (Coachella Valley Mosquito Vector Control District v. PERB
(2005)	(2005) 35 Cal.App.4th 1072.) In the present case, the charge was filed on October 21, 2008.	35 Cal.App.4th 1072.) In the present case, the charge was filed on October 21, 2008.
This means that the statutory period extends back until April 21, 2008. Thus, Martinez does	This means that the statutory period extends back until April 21, 2008. Thus, Martinez does
not establish that the District's alleged provision of adverse information, or any other	not establish that the District's alleged provision of adverse information, or any other
allegation of wrongdoing by the District occurring prior to April 21, 2008, occurred within the	allegation of wrongdoing by the District occurring prior to April 21, 2008, occurred within the
statutory period. Moreover, because Martinez describes neither the nature of the documents or	statutory period. Moreover, because Martinez describes neither the nature of the documents or
materials shared nor the context in which the District provided the documents or materials to	materials shared nor the context in which the District provided the documents or materials to
the police department, there is insufficient information to determine whether a reasonable	the police department, there is insufficient information to determine whether a reasonable
employee would consider this to be an adverse employment action.	employee would consider this to be an adverse employment action.
Right to Appeal	Right to Appeal
LA-CE-5266-E
February 9, 2009
Page 4
Pursuant to PERB Regulations, Charging Party may obtain a review of this dismissal of the	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	charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs, tit. 8, sec. 32635(a).) Any document filed with the Board	this dismissal. (Cal. Code Regs, tit. 8, sec. 32635(a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies of all documents	must contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board.	must be provided to the Board.
AA document is considered "filed" when actually received during a regular PERB business day.	document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. 11020(a).) A	(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. 11020(a).) A
document is also considered "filed" when received by facsimile transmission before the close	document is also considered "filed" when received by facsimile transmission before the close
3
PERB's Regulations are codified at California Code of Regulations, title 8, section	PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.	31001 et seq.

LA-CE-5266-E
February 9, 2009
Page 5
of business together with a Facsimile Transmission Cover Sheet which meets the requirements	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	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,	the required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs, tit. 8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)	secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
The Board's address is:	The Board's address is:
Public Employment Relations Board	Public Employment Relations Board
Attention: Appeals Assistant	Attention: Appeals Assistant
1031 18th Street	1031 18th Street
Sacramento, CA 95811-4124	Sacramento, CA 95811-4124
(916) 322-8231	(916) 322-8231
FAX: (916) 327-7960	FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the	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	Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Cal. Code Regs, tit. 8, sec. 32635(b).)	following the date of service of the appeal. (Cal. Code Regs, tit. 8, sec. 32635(b).)
Service	Service
All documents authorized to be filed herein must also be "served" upon all parties to the	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	proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, sec. 32140 for the required	party or filed with the Board itself. (See Cal. Code Regs., tit. 8, sec. 32140 for the required
contents.)	contents.) The document will be considered properly "served" when personally delivered or	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	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.	may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, sec. 32135(c).)	(Cal. Code Regs, tit. 8, sec. 32135(c).)
LA-CE-5266-E
February 9, 2009
Page 5
Extension of Time	Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be	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	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	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	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 theeach other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs, tit. 8, sec. 32132.)	request upon each party. (Cal. Code Regs, tit. 8, sec. 32132.)

LA-CE-5266-E
February 9, 2009
Page 6
Final	Final Date	Date
If no appeal is filed within the specified time limits, the dismissal will become final when the	If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.	time limits have expired.
Sincerely,	Sincerely,
TAMI R. BOGERT	TAMI R. BOGERT
General Counsel	General Counsel
By	By 	. 	.,,~
Eric J. Cuz	Eric J ~~ -,,,-0
Regional Attorney	Regional Attorney
Attachment	Attachment
cc:	cc: Leroy Martinez;	Leroy Martinez;
Marvin T. Sawyer	Marvin T. Sawyer
LA-CE-5266-E
February 9, 2009
Page 6

STATE
OF
CALIFORNIA	STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Los
Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-2907
Fax: (213) 736-4901
F
ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-2907
Fax: (213) 736-4901
January 13, 2009	January 13, 2009
Leroy Jessie Martinez	
Leroy
Jessie Martinez
Re:	Re: 	Leroy Jessie Martinez v. Fontana Unified School District	Leroy Jessie Martinez
v.
Fontana Unified School District
Unfair Practice Charge No. LA-CE-5266-E
WARNING LETTER	WARNING LETTER
Unfair Practice Charge No. LA-CE-5266-E
Dear Mr. Martinez:	Dear Mr. Martinez:
The above-referenced unfair practice charge was filed	The above-referenced unfair practice charge was filed with the Public Employment Relations	with the Public Employment Relations
Board (PERB or Board) on October 21, 2008. Leroy Jessie Martinez (Martinez or Charging	Board (PERB or Board) on October 21, 2008. Leroy Jessie Martinez (Martinez or Charging
Party)	Party) alleges that the Fontana Unified School District (District or Respondent) violated	alleges that the Fontana Unified School District (District or Respondent) violated
section 3543.5 of the Educational Employment Relations Act (EERA or Act) by interfering	section 3543.5 of the Educational Employment Relations Act (EERA or
Act/' by interfering
with his protected rights.	with his protected rights.
Martinez is employed as a teacher in the District. Martinez is a member of the certificated	Martinez
is
employed as a teacher in the District. Martinez
is
a member of the certificated
bargaining unit that is exclusively represented by Fontana Teachers' Association (Union). 	The	bargaining unit that is exclusively represented by Fontana Teachers' Association (Union). The
District	District and the Union are parties to a Collective Bargaining Agreement (CBA) that was in	and the Union are parties to a Collective Bargaining Agreement (CBA) that was in
effect at all relevant times. The CBA contains a grievance procedure that culminates in	effect at all relevant times. The CBA contains a grievance procedure that culminates
in
binding arbitration.	binding arbitration.
On June 30, 2000, the District transferred Martinez from Adler Middle School to Fontana	On June 30, 2000, the District transferred Martinez from Adler Middle School to Fontana
Middle School. Martinez filed a grievance over his transfer on July 12, 2000. On April 12 and	Middle School. Martinez filed a grievance over his transfer on July 12, 2000. On April 12 and
May 18, 2001, the District and the Union presented Martinez's grievance to an arbitrator for	May 18, 2001, the District and the Union presented Martinez's grievance to an arbitrator for
final determination. 	On August	final determination. On August 1, 2001, the arbitrator determined that the District violated the	
1,
2001, the arbitrator determined that the District violated the
CBA when 	transferred	CBA when it transferred Martinez and ordered that the District reinstate Martinez to his	it 	Martinez and ordered that the District reinstate Martinez to
his
previous position and reimburse him for any wages lost as a result of the transfer.	previous position and reimburse him for any wages lost as a result of the transfer.
On June 14, 2007, the District transferred Martinez from Adler Middle School to one of the	
On June 14, 2007, the District transferred Martinez from Adler Middle School to one
of
the
District's satellite	District's satellite campuses used for independent study. On October 1, 2007, Martinez filed a	campuses used for independent study. On October
1,
2007, Martinez filed a
grievance over	grievance over the transfer. On May 28, 2008, the parties drafted a settlement agreement.	the transfer. On May 28, 2008, the parties drafted a settlement agreement.
According to the terms of the draft agreement, the District agreed to make Martinez eligible for	According to the terms of the draft agreement, the District agreed to make Martinez eligible for
its Supplemental Retirement Plan and place him on paid administrative leave from June 9,	
its Supplemental Retirement Plan and place him on paid administrative leave from June 9,
2008 until December 31, 2008, if Martinez agreed to retire on or before June 9, 2008.
	The	2008 until December 31, 2008, if Martinez agreed to retire on or before June 9, 2008. The
District also agreed to grant Martinez all retirement benefits under the CBA, remove all	District also agreed to grant Martinez all retirement benefits under the CBA, remove all
references to the June 14, 2007 transfer from Martinez's personnel file, and seal all files	references to the June 14, 2007 transfer from Martinez's personnel file, and seal all files
1
EERA is codified at Government Code section 3540 et seq. The text of the EERA and	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	the Board's Regulations may be found on the Internet at wwww.perb.ca.gov	ww.perb.ca.gov. .

LA-CE-5266-E
January 13, 2009
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LA-CE-5266-E
January 13, 2009
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concerning Martinez, except when ordered to pursuant to a valid court order or when necessary	concerning Martinez, except when ordered to pursuant to a valid court order or when necessary
to cooperate with a United States Department of Education Office of Civil Rights (OCR)	to cooperate with a United States Department of Education Office of Civil Rights (OCR)
investigation. The draft agreement included language whereby Martinez agreed to release the	investigation. The draft agreement included language whereby Martinez agreed to release the
District for "any and all claims or causes of action arising out of Martinez's employment with	District for "any and all claims or causes of action arising out of Martinez's employment with
the District." The draft agreement further stated that it contained "the sole and entire	the District." The draft agreement further stated that it contained "the sole and entire
agreement and understanding of the parties with respect to the entire subject matter hereof, and	agreement and understanding of the parties with respect to the entire subject matter hereof, and
any and all prior discussions, negotiations, commitments and understandings related hereto are	any and all prior discussions, negotiations, commitments and understandings related hereto are
hereby merged herein. No representations, oral or otherwise, express or implied, other than	hereby merged herein. No representations, oral or otherwise, express or implied, other than
those contained herein have made by any party hereto."	those contained herein have made by any party hereto."
On June 6, 2008, Martinez met with District representatives to discuss settling his grievance.	On June 6, 2008, Martinez met with District representatives to discuss settling his grievance.
District Superintendent Jane Smith informed Martinez that "the issue of lost wages was going	District Superintendent Jane Smith informed Martinez that "the issue of lost wages was going
to be remedied as before and that the District's settlement offer was outside the purview of	to be remedied as before and that the District's settlement offer was outside the purview of
these lost wages." On June 9, 2008, both parties executed the May 28, 2008 draft settlement	these lost wages." On June 9, 2008, both parties executed the May 28, 2008 draft settlement
agreement, without making any additional modifications.	agreement, without making any additional modifications.
Martinez "was paid a portion of that settlement on [his] July 2008 check but then abruptly	Martinez "was paid a portion of that settlement on [his] July 2008 check but then abruptly
stopped on [his] August 2008 check." Martinez does not specify either the amount he was	stopped on [his] August 2008 check. '' 	Martinez does not specify either the amount he was
already paid in July 2008 or the remaining amount he still believes he is still owed by the	already paid in July 2008 or the remaining amount he still believes he is still owed by the
District.	District.
2
At a time not disclosed by the parties, Martinez filed a complaint with the OCR, alleging that	At a time not disclosed by the parties, Martinez filed a complaint with the OCR, alleging that
the District discriminated against students at Adler Middle School based on national origin and	the District discriminated against students at Adler Middle School based on national origin and
gender. 	On July 29, 2008, OCR concluded that the District was in compliance with all relevant	gender. On July 29, 2008, OCR concluded that the District was in compliance with all relevant
civil rights laws and further concluded that Martinez's allegations that the District retaliated	civil rights laws and further concluded that Martinez's allegations that the District retaliated
against him for initiating the OCR investigation were made moot by the June 9, 2008	against him for initiating the OCR investigation were made moot by the June 9, 2008
settlement agreement.	settlement agreement.
Discussion:	Discussion:
,A,.	A. 	Charging Party's Burden of Proof	Charging Party's Burden of Proof
PERB Regulation 32615(a)(5)' requires, inter alia, that an unfair practice charge include a	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."	"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
2
2 It is not clear from the charge whether the payment in Martinez's July 2008 paycheck	It is not clear from the charge whether the payment in Martinez's July 2008 paycheck
was made by the District pursuant to the July 9, 2008 settlement agreement, or whether it was	was made by the District pursuant to the July 9, 2008 settlement agreement, or whether it was
made pursuant to an alleged unwritten agreement between Martinez and the District, discussed	made pursuant to an alleged unwritten agreement between Martinez and the District, discussed
in more detail below.	in more detail below.
3
PERB Regulations are codified at California Code of Regulations, title 8, section	PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. Copies of the Regulations may be purchased from PERB's Publications	31001 et seq. Copies of the Regulations may be purchased from PERB 's Publications
Coordinator, 1031 18th Street, Sacramento, CA, 95811-4124, and the text is available at	Coordinator, 1031 18th Street, Sacramento, CA, 95811-4124, and the text is available at
www.perb.ca.gov	www.perb.ca.gov..

LA-CE-5266-E
January 13, 2009
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LA-CE-5266-E
January 13, 2009
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The	The charging party's burden includes alleging the "who, what, when, where and how" of an	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	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	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	No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)	Oak Unified School District (1991) PERB Decision No. 873.)
The charging party's burden also includes alleging facts showing that the unfair practice	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	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	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	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	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	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.)	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 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	the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)	Decision No. 1177.)
B. 	Charging Party's Allegations	B. 	Charging Party's Allegations
While not clear from the charge as written, Martinez appears to allege that the District	While not clear from the charge as written, Martinez appears to allege that the District
interfered with his EERA protected rights in four ways: (1) the District initiated the June 14,	interfered with his EERA protected rights in four ways: (1) the District initiated the June 14,
2007 transfer in retaliation for Martinez's filing the OCR complaint; (2) the District unlawfully	2007 transfer in retaliation for Martinez's filing the OCR complaint; (2) the District unlawfully
maintained its personnel records on Martinez; (3) the District negotiated with Martinez in bad	maintained its personnel records on Martinez; (3) the District negotiated with Martinez in bad
faith; and (4) the District breached an unwritten settlement agreement for an undisclosed	faith; and (4) the District breached an unwritten settlement agreement for an undisclosed
amount of back pay. Each of these allegations will be addressed separately below.	amount of back pay. Each of these allegations will be addressed separately below.
1. 	Retaliation	1. 	Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in violation	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	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	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 t.½e action	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	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)	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	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	(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	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	of the employee. (Palo Verde Unified School District (1988) PERB Decision No. 689.) 	In a
later decision, the Board further explained that:	later decision, the Board further explained that:
The test which must be satisfied is not whether the employee	The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a	found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider	reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's	the action to have an adverse impact on the employee's
employment.	employment.

LA-CE-5266-E
January 13, 2009
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LA-CE-5266-E
January 13, 2009
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(Newark Unified School	(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote	District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.)	omitted.)
Although	Although the timing of the employer's adverse action in close temporal proximity to the	the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct
is
an important factor	employee's protected conduct is an important factor (North Sacramento School District (1982)	(North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or	PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus"	"nexus" between the adverse action and the protected conduct. (Moreland Elementary School	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	District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following
additional	additional factors must also be present: (1) the employer's disparate treatment of the employee	factors must also be present: (1) the employer's disparate treatment
of
the employee
(State
of	State of California (Department of Transportation) (1984) PERB Decision No. 459-S;	California (Department
of
Transportation) (1984) PERB Decision No. 459-S;
Campbell, supra,
131	Campbell, supra, 131 Cal.App.3d	Cal.App.3d 416); (2) the employer's departure from established	416); (2) the employer's departure from established
procedures and standards when dealing with	procedures and standards when dealing with the employee (Santa Clara Unified School District	the employee (Santa Clara Unified School District
(1979)	(1979) PERB Decision No. 104; San Leandro, supra, 55	PERB Decision No. 104; San Leandro, supra, 55 Cal.App.3d	Cal.App.3d 553); (3) the employer's	553); (3) the employer's
inconsistent or contradictory justifications for its actions (State of California (Department of	inconsistent or contradictory justifications for its actions (State
of
California (Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S; San Leandro, supra, 55	Parks and Recreation) (1983) PERB Decision No. 328-S; San Leandro, supra, 55 Cal.App.3d	Cal.App.3d
553);	553); (4) the employer's cursory investigation of the employee's misconduct (City of Torrance	( 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	(2008) PERB Decision No. 1971-M; Coast Community College District (2003) PERB
Decision No. 1560); (5)	Decision No. 1560); (5) the employer's failure to offer the employee justification at the time it	the employer's failure to offer the employee justification at the time it
took action or the offering of	took action or the offering of exaggerated, vague, or ambiguous reasons (County of	exaggerated, vague, or ambiguous reasons (County of
San Joaquin (Health Care Service) (2001) PERB Order No. IR-55-M); (6) employer animosity	San Joaquin (Health Care Service) (2001) PERB Order No. IR-55-M); (6) employer animosity
towards union activists (Jurupa Community	towards union activists (Jurupa Community Services District (2007) PERB Decision No. 1920-	Services District (2007) PERB Decision No. 1920-
M; Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any	
M;
Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any
other facts that might demonstrate the employer's	other facts that might demonstrate the employer's unlawful motive. (North Sacramento School	unlawful motive. (North Sacramento School
District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)	District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
Martinez does not establish the first element of a retaliation claim, that filing the OCR	Martinez does not establish the first element of a retaliation claim, that filing the OCR
complaint is protected by EERA. EERA section 3543 protects employees' "right to form, join,	complaint is protected by EERA. EERA section 3543 protects employees' "right to form, join,
and participate in the activities of employee organizations of their own choosing for the	and participate in the activities of employee organizations
of
their own choosing for the
purpose of representation on all matters of employer-employee relations." Martinez does not	purpose of representation on all matters
of
employer-employee relations." Martinez does not
demonstrate that the OCR complaint qualifies as protected activity.	demonstrate that the OCR complaint qualifies as protected activity.
PERB has consistently held that filing complaints with outside agencies and regarding issues	PERB has consistently held that filing complaints with outside agencies and regarding issues
such as race or gender based discrimination does not qualify as protected activity. (City of	such as race or gender based discrimination does not qualify as protected activity. (City
of
Long Beach (2008) PERB Decision No. 1977-M, citing San Diego Unified School District	Long Beach (2008) PERB Decision No. 1977-M, citing San Diego Unified School District
(1991) PERB Decision No. 885 (holding	(1991) PERB Decision No. 885 (holding filing claims with the Equal Employment Opportunity	filing claims with the Equal Employment Opportunity
Commission
is
not protected activity);	Commission is not protected activity); Regents of the University of California (1987) PERB	Regents of the University of California (1987)
PERB
Decision No. 615-H (filing claims with the Department of Fair Employment and Housing is	Decision No. 615-H (filing claims with the Department of Fair Employment and Housing is
not protected	not protected activity).) This is because outside agencies often have rules and regulations in	activity).) This is because outside agencies often have rules and regulations in
place to prevent unlawful retaliation	place to prevent unlawful retaliation for filing complaints. (See Regents of the University of	for filing complaints. (See Regents of the University of
California, supra, PERB Decision No. 615-H.) Moreover, PERB does not have the authority	California, supra, PERB Decision No. 615-H.) Moreover, PERB does not have the authority
to address race or gender based discrimination	to address race or gender based discrimination claims. (Antelope Valley College Federation of	claims. (Antelope Valley College Federation of
Teachers	Teachers (Stryker) (2004) PERB Decision No. 1624.) In the present case, Martinez's OCR	(Stryker) (2004) PERB Decision No. 1624.) In the present case, Martinez's
OCR
complaint concerns the District's alleged discrimination based on race and gender. Martinez	complaint concerns the District's alleged discrimination based on race and gender. Martinez
does	does not establish that PERB has the authority to address these issues. In addition, the OCR	not establish that PERB has the authority to address these issues. In addition, the OCR

LA-CE-5266-E
January 13, 2009
Page 5
explained that it had the authority to address the District's alleged retaliation against Martinez	explained that it had the authority to address the District's alleged retaliation against Martinez
for his filing of the OCR complaint.	for his filing of the OCR complaint.
Martinez also does not demonstrate that the OCR complaint concerns "matters of employer-	Martinez also does not demonstrate that the OCR complaint concerns "matters of employer-
employee relations." (EERA, § 3543.) The OCR complaint concerns allegedly discriminatory	employee relations." (EERA, $ 3543.) The OCR complaint concerns allegedly discriminatory
practices by the District against students. Martinez does not demonstrate how such practices,	practices by the District against students. Martinez does not demonstrate how such practices,
even if true, affect the terms and conditions of employment for certificated personnel. For	even if true, affect the terms and conditions of employment for certificated personnel. For
these reasons, Martinez does not demonstrate that these activities qualify as protected activities	these reasons, Martinez does not demonstrate that these activities qualify as protected activities
under EERA and therefore, he does not state a prima facie case for unlawful retaliation.	under EERA and therefore, he does not state a prima facie case for unlawful retaliation.
2. 	Personnel File	2. 	Personnel File .
Martinez next alleges "that district administration, outside of the Personnel Office, kept a	Martinez next alleges "that district administration, outside of the Personnel Office, kept a
separate undisclosed personnel file on [him.]" Martinez does not specify how the District's	separate undisclosed personnel file on [him.]" Martinez does not specify how the District's
alleged maintenance of this file constitutes a violation of EERA. Accordingly, this	alleged maintenance of this file constitutes a violation of EERA. Accordingly, this
investigation will consider whether the District's actions interfered with Martinez's protected	investigation will consider whether the District's actions interfered with Martinez's protected
4
rights." The test for whether a respondent has interfered with the rights of employees under the	rights. 	The test for whether a respondent has interfered wit.½ the rights of employees under the
EERA does not require that unlawful motive be established, only that at least slight harm to	EERA does not require that unlawful motive be established, only that at least slight harm to
employee rights results from the conduct. In State of California (Department of	employee rights results from the conduct. fo State of California (Department of
Developmental	Developmental Services) (1983) PERB Decision No. 344-S, citing Carlsbad Unified School	Services) (1983) PERB Decisio'n No. 344-S, citing Carlsbad Unified School
District (1979) PERB Decision No. 89 and Service Employees International Union, Local 99	District (1979) PERB Decision No. 89 and Service Employees International Union, Local 99
(Kimmett) (1979) PERB Decision No. 106, the Board described the standard as follows:	(Kimmett) (1979) PERB Decision No. 106, the Board described the standard as follows:
[I]n order to establish a prima facie case of unlawful interference,	[Ijn order to establish a prima facie case of unlawful interference,
the charging party must establish that the respondent's conduct	the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted	tends to or does result in some harm to employee rights granted
under EERA.	under EERA.
Under the above-described test, a violation may only be found if EERA provides the claimed	Under the above-described test, a violation may only be found if EERA provides the claimed
rights. In Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a	rights. In Clovis Unified School District (1984) PERB Decision No. 389, the Board held that a
finding of coercion does not require evidence that the employee actually felt threatened or	finding of coercion does not require evidence that the employee actually felt threatened or
intimidated or was in fact discouraged from participating in protected activity.	intimidated or was in fact discouraged from participating in protected activity.
In this case, Martinez does not provide a "clear and concise statement of facts" demonstrating	In this case, Martinez does not provide a "clear and concise statement of facts" demonstrating
that the District's alleged maintenance of a separate personneLfile caused at least "slight harm"	that the District's alleged maintenance of a separate personnel file caused at least "slight harm"
to any of his EERA protected rights. (See PERB Regulation 32615(a)(5); State of California	to any of his EERA protected rights. 	(See PERB Regulation 32615(a)(5); State of California
(Department of Developmental Services), supra, PERB Decision No. 344-S, other citations	(Department of Developmental Services), supra, PERB Decision No. 344-S, other citations
omitted.) Martinez does not allege what the contents of this file nor does he demonstrate that	omitted.) Martinez does not allege what the contents of this file nor does he demonstrate that
the District's maintenance of the file affected his employment in any way. Accordingly, this	the District's maintenance of the file affected his employment in any way. 	Accordingly, this
allegation does not state a prima facie case.	allegation does not state a prima facie case.
LA-CE-5266-E
January 13, 2009
Page 5
4
" 	Where the charging party does not specify a particular section or theory in the charge,	Where the charging party does not specify a particular section or theory in the charge,
the investigating agent may determine under what section the charge should be analyzed.	the investigating agent may determine under what section the charge should be analyzed.
(Los	(Los Angeles County Office of Education (1999) PERB Decision No. 1360.)	Angeles County Office of Education (1999) PERB Decision No. 1360.)

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January 13, 2009
Page 6
3. 	Negotiation in Bad Faith	3. 	Negotiation in Bad Faith
a prima facie case.
Martinez also alleges	Martinez also alleges that the District engaged in "bad faith bargaining." Under EERA, public	that the District engaged in "bad faith bargaining." Under EERA, public
school employers and exclusive	school employers and exclusive representatives owe a mutual duty to meet and confer with one	representatives owe a mutual duty to
meet
and confer with one
another in good faith concerning issues within the scope of representation. (See EERA, $8	another in good faith concerning issues within the scope
of
representation. 	(See
EERA,
§ §
3543.2, 3543.5(c), 3543.6(c).)	3543.2, 3543.5(c), 3543.6(c).) "Thus, the employer's duty to negotiate in good faith is owed	"Thus, the employer's duty to negotiate in good faith is owed
only to the exclusive representative	only to the exclusive representative employee organization." (Oxnard School District (Gorcey	employee organization." (Oxnard School District (Gorcey
and Tripp) (1988) PERB Decision No. 667, emphasis in original.) In other words, "individual	and Tripp) (1988) PERB Decision No. 667, emphasis in original.) In other words, "individual
employees lack standing to allege that an employer has failed to bargain in good faith."	employees lack standing to allege that an employer has failed to bargain in good faith." (State	(State
of
California (Department
of
Corrections & Rehabilitation) (2007) PERB Decision No. 1923-	of California (Department of Corrections & Rehabilitation) (2007) PERB Decision No. 1923-
S.) In addition, individual employees also lack standing "to pursue violations of the rights of	S.) In addition, individual employees also lack standing "to pursue violations
of
the rights
of
an employee organization." (Ibid.) In this case, Martinez
is
the only charging party identified	an employee organization." (Ibid.) In this case, Martinez is the only charging party identified
on the charge form. Martinez does not demonstrate that the District has a duty to negotiate in	on the charge form. 	Martinez does not demonstrate that the District has a duty to negotiate in
good faith with him as an individual employee. Nor does Martinez demonstrate that he has	good faith with him as an individual employee. 	Nor does Martinez demonstrate that
he
has
standing to raise this claim on behalf
of
the Union.	standing to raise this claim on behalf of the Union. Accordingly, this allegation does not state	Accordingly, this allegation does
not
state
a prima facie case.
4. 	Breach of Contract	4. 	Breach
of
Contract
Martinez also appears to allege that the District breached an unwritten agreement reached on	Martinez also appears to allege that the District breached an unwritten agreement reached on
June 6, 2008 in settlement of his October 1, 2007 grievance. EERA section 3541.5(b) states:	June 6, 2008 in settlement
of
his October
1,
2007 grievance. 	EERA section 354 l.5(b) states:
The board shall not have the authority to enforce agreements	The board shall not have the authority to enforce agreements
between the parties, and shall not issue a complaint on any charge	between the parties, and shall not issue a complaint on any charge
based on alleged violation of any agreement that would not also	based on alleged violation
of
any agreement that would not also
constitute an unfair practice under this chapter.	constitute an unfair practice under this chapter.
(See also Oxnard School District (Gorcey and Tripp), supra, PERB Decision No. 667.) In the
present case, for the reasons discussed above, Martinez does not establish that the District
violated EERA. Accordingly, PERB does not have the authority to address these alleged
violations of this agreement.
RB had the authority to address this issue, Martinez does not provide "a clear and
ement of facts" to determine that the District violated an agreement. (See PERB
Regulation 32615(a)(5).) Martinez does not allege what the terms of the June 6, 2008
agreement were, nor does he discuss whether the agreement was superseded by the later
agreement, signed June 9, 2008. For these reasons, there is insufficient information to find a
violation.
For these reasons the charge, as presently written, does not state a prima facie c
are any factual inaccuracies in this letter or additional facts that would correct th 	s
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
LA-CE-5266-E
January 13, 2009
Page 6
(See also Oxnard School District (Gorcey and Tripp), supra, PERB Decision No. 667.)
In
the
present case, for the reasons discussed above, Martinez does not establish
that the District
violated EERA. 	Accordingly, PERB does not have the authority to address these alleged
violations
of
this agreement.
Even if PE	Even
if
PERB had the authority to address this issue, Martinez does not provide "a clear and
concise stat	concise statement
of
facts" to determine that the District violated an agreement. 	(See
PERB
Regulation 32615(a)(5).) Martinez does not allege what the terms of the June 6, 2008
agreement were, nor does he discuss whether the agreement was superseded by the later
agreement, signed June 9, 2008. 	For these reasons, there is insufficient information to
find
a
violation.
For these reasons the charge, as presently written, does not state a prima facie case.	ase. If there	
there
are any factual inaccuracies in this letter or additional facts that would correct the	e deficiencie	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

LA-CE-5266-E
January 13, 2009
Page 7
number.
LA-CE-5266-E
January 13, 2009
Page 7
number written on the top right hand corner of the charge form. 	The amended charge must be	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	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 January 23, 2009, PERB	PERB. If an amended charge or withdrawal is not filed on or before January 23, 2009, PERB
will dismiss your charge. If you have any questions, please call me at the above telephone	will dismiss your charge. If you have any questions, please call me at the above telephone
number.
Sincerely,	Sincy~
~J.Cu	EGG J. Cu
, 	Regional Attorney	Rkgional Attorney
EC	EC