Los Angeles Unified School District (PERB 2244E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KENNON B. RAINES,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5482-E
PERB Decision No. 2244
February 29, 2012
Appearance: 	Kennon B. Raines, on her own behalf.
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Kennon B. Raines (Raines) of a Board agent's dismissal of her
unfair practice charge. The charge alleged that the Los Angeles Unified School District
(District) violated section 3543.S(a) of the Educational Employment Relations Act (EERA) 1 by
retaliating against Raines for engaging in protected activity.
The charge, as amended, alleged that Raines engaged in protected activity by: (1) filing
an unfair practice charge with PERB against the District (PERB Case No. LA-CE-4740-E),
which was resolved by a settlement in her favor in July 2004; (2) filing grievances against the
District on April 23, 2007 and February 6, 2008, which were resolved in her favor on
August 20 and 24, 2009; (3) filing a PERB unfair practice charge against United Teachers of
Los Angeles (UTLA) 	October 22, 2009 	Case No. LA-CO-1395-E); (4) appearing at
an October 2009 meeting of the UTLA and voicing her support of a resolution to rescind a
·
1 EERA is codified at Government Code section 3540 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
KENNON B. RAINES,
Charging Party, 	Case No. LA-CE-5482-E
V . 	PERB Decision No. 2244
February 29, 2012	LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Appearance: Kennon B. Raines, on her own behalf.
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Kennon B. Raines (Raines) of a Board agent's dismissal of her
unfair practice charge. The charge alleged that the Los Angeles Unified School District
(District) violated section 3543.5(a) of the Educational Employment Relations Act (EERA)' by
retaliating against Raines for engaging in protected activity.
The charge, as amended, alleged that Raines engaged in protected activity by: (1) filing
an unfair practice charge with PERB against the District (PERB Case No. LA-CE-4740-E),
which was resolved by a settlement in her favor in July 2004; (2) filing grievances against the
District on April 23, 2007 and February 6, 2008, which were resolved in her favor on
August 20 and 24, 2009; (3) filing a PERB unfair practice charge against United Teachers of
Los Angeles (UTLA) in October 22, 2009 (PERB Case No. LA-CO-1395-E); (4) appearing at
an October 2009 meeting of the UTLA and voicing her support of a resolution to rescind a
EERA is codified at Government Code section 3540 et seq.

side-letter negotiated between UTLA and the District; and ( 5) meeting with District
Administrators Ira Berman (Berman) and Helen Tablack (Tablack) in January 2010 concerning
the implementation of the settlement of her prior grievances. The charge alleged that the
District retaliated against Raines for having engaged in these protected activities by: (1) on
February 26, 2010, barring Raines from working as a substitute teacher at Ramona Elementary
School (Ramona School); (2) reducing her work assignments pursuant to an audit in May
2010.2
The Board agent found that Raines failed to establish a prima facie case that the District
retaliated against her because of her protected activity and dismissed the charge.
We have reviewed the entire record in this matter and affirm the Board agent's
determination that the charge failed to state a prima facie case with respect to the alleged
reduction in work assignments. We find, however, that the charge, as amended, alleges
sufficient facts to establish a prima facie case of retaliation with respect to the allegation that
the District removed Raines from working at Ramona School in retaliation for her protected
activities. Accordingly, we reverse the dismissal of the charge and remand for issuance of a
complaint with respect to this allegation only.
To the extent Raines alleges that the District took other adverse actions against her,
we agree with the Board agent that the charge fails to allege sufficient facts to establish any
other adverse actions taken within the six months prior to the filing of the charge. EERA
section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to "any charge
based upon an alleged unfair practice occurring more than six months prior to the filing of the
charge." The limitations period begins to run once the charging party knows, or should have
known, of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) A charging party bears the burden of demonstrating that the
charge is timely filed. 	(Tehachapi Unified School District (1993) PERB Decision No. 1024;
State of California (Department of Insurance) (1997) PERB Decision No. 1197-S.)
2
side-letter negotiated between UTLA and the District; and (5) meeting with District
Administrators Ira Berman (Berman) and Helen Tablack (Tablack) in January 2010 concerning
the implementation of the settlement of her prior grievances. The charge alleged that the
District retaliated against Raines for having engaged in these protected activities by: (1) on
February 26, 2010, barring Raines from working as a substitute teacher at Ramona Elementary
School (Ramona School); (2) reducing her work assignments pursuant to an audit in May
2010.2
The Board agent found that Raines failed to establish a prima facie case that the District
retaliated against her because of her protected activity and dismissed the charge.
We have reviewed the entire record in this matter and affirm the Board agent's
determination that the charge failed to state a prima facie case with respect to the alleged
reduction in work assignments. We find, however, that the charge, as amended, alleges
sufficient facts to establish a prima facie case of retaliation with respect to the allegation that
the District removed Raines from working at Ramona School in retaliation for her protected
activities. Accordingly, we reverse the dismissal of the charge and remand for issuance of a
complaint with respect to this allegation only.
" To the extent Raines alleges that the District took other adverse actions against her,
we agree with the Board agent that the charge fails to allege sufficient facts to establish any
other adverse actions taken within the six months prior to the filing of the charge. EERA
section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to "any charge
based upon an alleged unfair practice occurring more than six months prior to the filing of the
charge." The limitations period begins to run once the charging party knows, or should have
known, of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) A charging party bears the burden of demonstrating that the
charge is timely filed. (Tehachapi Unified School District (1993) PERB Decision No. 1024;
State of California (Department of Insurance) (1997) PERB Decision No. 1197-S.)
2

FACTUAL ALLEGATIONS3
Raines began her employment as a substitute teacher with the District in 1997. Except
for a brief span in 2003-2004, Raines' employment has been continuous.4
UTLA represents the District's teachers. The bargaining unit includes at least two
distinct groups
of
employees, full-time teachers and substitute teachers. The District and
UTLA are parties to a collective bargaining agreement (CBA). Under the CBA, a substitute
teacher's seniority is based on uninterrupted years
of
service.
The CBA establishes a calling order that the District follows when offering assignments
to substitute teachers. Seniority is the primary factor in determining the calling order.
Individual schools may establish a "preferred" list for substitutes. Those with sufficient
seniority who are on such a list are accorded priority for assignments at that school.
If
a school
administrator is dissatisfied with a substitute teacher's performance, the administrator may
issue a "no call" notice5 regarding a particular substitute, which prevents the substitute teacher
from being assigned to that school in the future. 	Accumulation
of
multiple "no call" notices
leads to termination. 	Substitutes may challenge such notices by filing a grievance.	
If
the
challenge is successful, the "no call" notice may be rescinded and removed from the teacher's
file.
In June 2009, the District laid off 1,800 full-time teachers. In July 2009, UTLA and the
District negotiated a side-letter agreement granting the laid-off full-time teachers a preference
3 At this state
of
the proceedings, we must assume that the essential facts alleged in the
charge are true. (San Juan Unified School District (1977) EERB* Decision No. 12; Trustees
of
the California State University (Sonoma) (2005) PERB Decision No. 1755.) (*Prior to January
1978, PERB was known as the Educational Employment Relations Board or EERB.)
4 The brief break in service is discussed below.
5 "No call" notices are also referred to by the District as "Inadequate Service Reports"
or ISRs.
3
FACTUAL ALLEGATIONS'
Raines began her employment as a substitute teacher with the District in 1997. Except
for a brief span in 2003-2004, Raines' employment has been continuous.*
UTLA represents the District's teachers. The bargaining unit includes at least two
distinct groups of employees, full-time teachers and substitute teachers. The District and
UTLA are parties to a collective bargaining agreement (CBA). Under the CBA, a substitute
teacher's seniority is based on uninterrupted years of service.
The CBA establishes a calling order that the District follows when offering assignments
to substitute teachers. Seniority is the primary factor in determining the calling order.
Individual schools may establish a "preferred" list for substitutes. Those with sufficient
seniority who are on such a list are accorded priority for assignments at that school. If a school
administrator is dissatisfied with a substitute teacher's performance, the administrator may
issue a "no call" notice" regarding a particular substitute, which prevents the substitute teacher
from being assigned to that school in the future. Accumulation of multiple "no call" notices
leads to termination. Substitutes may challenge such notices by filing a grievance. If the
challenge is successful, the "no call" notice may be rescinded and removed from the teacher's
file.
In June 2009, the District laid off 1,800 full-time teachers. In July 2009, UTLA and the
District negotiated a side-letter agreement granting the laid-off full-time teachers a preference
" At this state of the proceedings, we must assume that the essential facts alleged in the
charge are true. (San Juan Unified School District (1977) EERB* Decision No. 12; Trustees of
the California State University (Sonoma) (2005) PERB Decision No. 1755.) (*Prior to January
1978, PERB was known as the Educational Employment Relations Board or EERB.)
* 	.	*The brief break in service is discussed below
" "No call" notices are also referred to by the District as "Inadequate Service Reports"
or ISRS.
3

over the substitute teachers for substitute work assignments. The preference became effective
in September 2009. In November 2009, UTLA and the District agreed to rescind the side-
letter agreement.
Raines' Alleged Protected Activity
During the 2003-2004 school year, the District terminated Raines' employment. 	Raines
alleged that the termination was due to her protected activities and filed an unfair practice
charge with PERB in April 2004 (Case No. LA-CE-4740-E). The parties settled the case and
Raines was reinstated to her employment with the District.
On April 19, 2007, Raines was issued a "no call" notice by the principal of Union
Elementary School (Union School). Raines filed a grievance seeking removal of the notice
from her file.
On October 18, 2007, Raines met with Maureen Diekmann (Diekmann), District 4
elementary director, regarding the Union School grievance. Raines had not previously met
with Diekmann. According to Raines, the meeting was contentious in that Diekmann
repeatedly asked questions and cut Raines off, and accused her of having had problems before,
even though her record had been cleared.
In February 2008, Raines received another "no call" notice. Raines again filed a
grievance over this notice.
On July 22, 2009, Raines attended a "step 2" meeting on her grievances.6
In August 2009, Raines and the District entered into a settlement of both grievances. In
exchange for Raines' agreement to withdraw both grievances, the District agreed to remove the
Union School notice provided Raines did not receive another Inadequate Substitute Teacher
According to Raines, both the October 18, 2007 meeting with Diekmann and the
July 22, 2009 meeting were "step 2" meetings on her grievances.
4
over the substitute teachers for substitute work assignments. The preference became effective
in September 2009. In November 2009, UTLA and the District agreed to rescind the side-
letter agreement.
Raines' Alleged Protected Activity
During the 2003-2004 school year, the District terminated Raines' employment. Raines
alleged that the termination was due to her protected activities and filed an unfair practice
charge with PERB in April 2004 (Case No. LA-CE-4740-E). The parties settled the case and
Raines was reinstated to her employment with the District.
On April 19, 2007, Raines was issued a "no call" notice by the principal of Union
Elementary School (Union School). Raines filed a grievance seeking removal of the notice
from her file.
On October 18, 2007, Raines met with Maureen Diekmann (Diekmann), District 4
elementary director, regarding the Union School grievance. Raines had not previously met
with Diekmann. According to Raines, the meeting was contentious in that Diekmann
repeatedly asked questions and cut Raines off, and accused her of having had problems before,
even though her record had been cleared.
In February 2008, Raines received another "no call" notice. Raines again filed a
grievance over this notice.
On July 22, 2009, Raines attended a "step 2" meeting on her grievances. "
In August 2009, Raines and the District entered into a settlement of both grievances. In
exchange for Raines' agreement to withdraw both grievances, the District agreed to remove the
Union School notice provided Raines did not receive another Inadequate Substitute Teacher
According to Raines, both the October 18, 2007 meeting with Diekmann and the
July 22, 2009 meeting were "step 2" meetings on her grievances.
4

Service Report before December 30, 2009, and also agreed not to accept or seek assignments
to Union School.7 The written settlement agreement indicates that it was copied to Diekmann.
In October 2009, Raines, along with other substitutes, attended an UTLA meeting. 	At
the meeting, Raines and other substitute teacher protested against a side-letter agreement
entered into between UTLA and the District under which laid-off full-time teachers were given
a preference in substitute employment. Those present at the meeting voted overwhelmingly to
rescind the side-letter. On October 22, 2009, Raines, on behalf
of
herself and other substitute
teachers, filed a PERB unfair practice charge against UTLA (PERB Case No. LA-CO-1395-E),
alleging that UTLA breached its duty
of
fair representation by agreeing with the District to
divert substitute teacher work to laid-off full-time teachers. In November 2009, the District
and UTLA agreed to rescind the side-letter agreement. 8
On January 10, 2010, Raines met with Berman and Tablack over her concerns that the
"no call notices" had not been removed from her file, as provided by the October 2009
settlement agreement, and that she was being denied work assignments as a result. Tablack
told Raines she would research the issue and get back to her. 	On January 14, 2010, Tablack
told Raines she was correct and that she would immediately remove the "no call" documents
from her file.
Alleged Retaliation
Later in January 2010, Raines took an assignment at Ramona School. She had worked
there frequently and was on the school's preferred substitute list. While working there, Raines
7 The settlement agreement does not expressly refer to removal of the February 2008
"no call notice." However, Raines appears to allege that both documents were to be removed
from her file.
8 Case No. LA-CO-1395-E remains pending before PERB.
5
Service Report before December 30, 2009, and also agreed not to accept or seek assignments
to Union School.' The written settlement agreement indicates that it was copied to Diekmann.
In October 2009, Raines, along with other substitutes, attended an UTLA meeting. At
the meeting, Raines and other substitute teacher protested against a side-letter agreement
entered into between UTLA and the District under which laid-off full-time teachers were given
a preference in substitute employment. Those present at the meeting voted overwhelmingly to
rescind the side-letter. On October 22, 2009, Raines, on behalf of herself and other substitute
teachers, filed a PERB unfair practice charge against UTLA (PERB Case No. LA-CO-1395-E),
alleging that UTLA breached its duty of fair representation by agreeing with the District to
divert substitute teacher work to laid-off full-time teachers. In November 2009, the District
and UTLA agreed to rescind the side-letter agreement.
On January 10, 2010, Raines met with Berman and Tablack over her concerns that the
"no call notices" had not been removed from her file, as provided by the October 2009
settlement agreement, and that she was being denied work assignments as a result. Tablack
told Raines she would research the issue and get back to her. On January 14, 2010, Tablack
told Raines she was correct and that she would immediately remove the "no call" documents
from her file.
Alleged Retaliation
Later in January 2010, Raines took an assignment at Ramona School. She had worked
there frequently and was on the school's preferred substitute list. While working there, Raines
'The settlement agreement does not expressly refer to removal of the February 2008
"no call notice." However, Raines appears to allege that both documents were to be removed
from her file.
$ Case No. LA-CO-1395-E remains pending before PERB.
5

saw Diekmann walking with Principal James Hum (Hum). As they passed, Raines alleges that
Diekmann looked at her, whispered at Hurn, and they both "snickered."
On February 26, 2010, while working again at Ramona School, Assistant Principal
Sylvia Hernandez (Hernandez) called Raines into the office and accused her
of
being
inattentive and filing her nails during a student program. Hernandez informed Raines that she
would be sent home without pay and not allowed to return to work at Ramona School. 	Raines
admitted that she had been filing her nails, but denied that she had been inattentive. Raines
then went to Hum, who informed her that a parent had complained that her students were
teasing her child using ethnic slurs. 	Raines denied that her students were misbehaving, and
stated that the penalty was excessive for such a minor incident. Hum informed Raines that he
had to promise the parent that he would have an assembly on cultural and sensitivity issues "in
order to keep her from going to Diekmann." When Raines asked whether Diekmann was
behind the decision to remove her from Ramona School, Hum responded, "Why? Have you
had problems with her before?"
·
In March 20 I 0, the District performed an audit
of
its "SubFinder" computer program. 9
According to the amended charge, the audit "drastically reduced" Raines' work assignments in
May 201
O;
the amended charge also appears to allege that the audit also reduced her
assignments in April 20 I
0.
	However, the amended charge shows Raines worked an average
of
9.3 days a month between September 2009 and June 2010.
It
also shows that she worked
12 days in May 2010 and
11
days in April 2010.
On June 13, 2010, Raines attended a Ramona School staff retirement party. Hurn also
attended, and the two spoke briefly. Raines said, "No one believed that fingernail story!"
It appears that the SubFinder program is a program for assigning substitute teachers to
work in the District.
6
saw Diekmann walking with Principal James Hum (Hum). As they passed, Raines alleges that
Diekmann looked at her, whispered at Hum, and they both "snickered."
On February 26, 2010, while working again at Ramona School, Assistant Principal
Sylvia Hernandez (Hernandez) called Raines into the office and accused her of being
inattentive and filing her nails during a student program. Hernandez informed Raines that she
would be sent home without pay and not allowed to return to work at Ramona School. Raines
admitted that she had been filing her nails, but denied that she had been inattentive. Raines
then went to Hum, who informed her that a parent had complained that her students were
teasing her child using ethnic slurs. Raines denied that her students were misbehaving, and
stated that the penalty was excessive for such a minor incident. Hum informed Raines that he
had to promise the parent that he would have an assembly on cultural and sensitivity issues "in
order to keep her from going to Diekmann." When Raines asked whether Diekmann was
behind the decision to remove her from Ramona School, Hum responded, "Why? Have you
had problems with her before?"
In March 2010, the District performed an audit of its "SubFinder" computer program."
According to the amended charge, the audit "drastically reduced" Raines' work assignments in
May 2010; the amended charge also appears to allege that the audit also reduced her
assignments in April 2010. However, the amended charge shows Raines worked an average
of 9.3 days a month between September 2009 and June 2010. It also shows that she worked
12 days in May 2010 and 11 days in April 2010.
On June 13, 2010, Raines attended a Ramona School staff retirement party. Hum also
attended, and the two spoke briefly. Raines said, "No one believed that fingernail story!"
"It appears that the SubFinder program is a program for assigning substitute teachers to
work in the District.
6

Hum replied, "Well
of
course that
wasn't
it." After Raines described her years
of
devotion to
Ramona School, Hum responded, "But you have to prepared to hear and accept what will
be
said. You should consider, think about the problems you've been having with other
principals." After Raines denied she had had any problems with other principals, Hum stated,
"Ah, but you have in the past and you mustn't take it out on me because
of
what others
dictate." Hum agreed to have his office manager set up an appointment for them to speak
further, but no such appointment ever was made. Raines asserts that Hum's statements
confirmed that "others" in authority over
Hum-namely Diekmann-made
the decision to
deny Raines work at Ramona School and that the decision was not grounded in the nail-filing
incident.
DISCUSSION
To state a prima facie case that an employer retaliated against an employee in violation
of
EER.1\ section 3543.S(a), the charging party must allege 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.)
Protected Activity
Raines engaged in protected activity when she filed grievances in April 2007 and
February 2008 challenging "no call" notices she received, as well as when she met with
District administrators concerning the implementation
of
the settlement of those grievances.
(San Bernardino City Unified School District (1998) PERB Decision No. 1270.) Raines also
engaged in protected activity when she filed unfair practice charges with PERB in 2004 and
October 2009. (Trustees
of
the California State University (2008) PERB Decision No. 1970-H;
7
Hum replied, "Well of course that wasn't it." After Raines described her years of devotion to
Ramona School, Hum responded, "But you have to prepared to hear and accept what will be
said. You should consider, think about the problems you've been having with other
principals." After Raines denied she had had any problems with other principals, Hum stated,
"Ah, but you have in the past and you mustn't take it out on me because of what others
dictate." Hum agreed to have his office manager set up an appointment for them to speak
further, but no such appointment ever was made. Raines asserts that Hum's statements
confirmed that "others" in authority over Hum-namely Diekmann-made the decision to
deny Raines work at Ramona School and that the decision was not grounded in the nail-filing
incident.
DISCUSSION
To state a prima facie case that an employer retaliated against an employee in violation
of EERA section 3543.5(a), the charging party must allege 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.)
Protected Activity
Raines engaged in protected activity when she filed grievances in April 2007 and
February 2008 challenging "no call" notices she received, as well as when she met with
District administrators concerning the implementation of the settlement of those grievances.
(San Bernardino City Unified School District (1998) PERB Decision No. 1270.) Raines also
engaged in protected activity when she filed unfair practice charges with PERB in 2004 and
October 2009. (Trustees of the California State University (2008) PERB Decision No. 1970-H;
7

Riverside Unified School District (1987) PERB Decision No. 639.) Like the Board agent, we
assume for the sake
of
discussion that Raines also engaged in protected activity when she
attended an UTLA meeting and voiced her support
of
a resolution to rescind a side-letter
between UTLA and the District. (But see Service Employees International Union, Local 99
(Kimmett) (1979) PERB Decision No. 106 [employee's internal union activities are not
protected unless they have a substantial impact on the employee's relationship with the
employer]; California State Employees Association (Hackett) (1993) PERB Decision
No. 1012-S [employee does not have a protected right to campaign against the ratification
against the ratification
of
a tentative agreement].)
Knowledge
An employer's knowledge
of
protected activity may be inferred from circumstantial
evidence. (Los Angeles Community College District (2004) PERB Decision No. 1668.) The
Board agent found that the amended charge identified two District representatives-Berman
and
Tablack-who
knew about Raines's protected activity in pursuing her grievances when
she met with them on January 10, 2010. In addition, the amended charge alleges that Raines
spoke to Diekmann in July 2009 about her grievances and that Diekmann was copied with the
August 2009 agreement settling those grievances. Accordingly, we conclude that Raines has
alleged sufficient facts to establish a prima facie case that Diekmann had knowledge
of
Raines's protected activities.
Adverse Action
In determining whether the employer's action is adverse to the employee, 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.) "The test which must be
satisfied is not whether the employee found the employer's action to be adverse, but whether a
8
Riverside Unified School District (1987) PERB Decision No. 639.) Like the Board agent, we
assume for the sake of discussion that Raines also engaged in protected activity when she
attended an UTLA meeting and voiced her support of a resolution to rescind a side-letter
between UTLA and the District. (But see Service Employees International Union, Local 99
(Kimmett) (1979) PERB Decision No. 106 [employee's internal union activities are not
protected unless they have a substantial impact on the employee's relationship with the
employer]; California State Employees Association (Hackett) (1993) PERB Decision
No. 1012-S [employee does not have a protected right to campaign against the ratification
against the ratification of a tentative agreement].)
Knowledge
An employer's knowledge of protected activity may be inferred from circumstantial
evidence. (Los Angeles Community College District (2004) PERB Decision No. 1668.) The
Board agent found that the amended charge identified two District representatives-Berman
and Tablack-who knew about Raines's protected activity in pursuing her grievances when
she met with them on January 10, 2010. In addition, the amended charge alleges that Raines
spoke to Diekmann in July 2009 about her grievances and that Diekmann was copied with the
August 2009 agreement settling those grievances. Accordingly, we conclude that Raines has
alleged sufficient facts to establish a prima facie case that Diekmann had knowledge of
Raines's protected activities.
Adverse Action
In determining whether the employer's action is adverse to the employee, 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.) "The test which must be
satisfied is not whether the employee found the employer's action to be adverse, but whether a
8

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 (Newark).)
The decisions to bar Raines from working at Ramona School and to remove her from
the preferred substitute list are adverse actions. (Sacramento City Unified School District
(2010) PERB Decision No. 2129 (Sacramento) [decision to remove an individual's name from
an active substitute list
is
an adverse action].) The charge fails to set forth sufficient facts,
however, to establish that the District manipulated the audit to reduce her work assignments in
April and May 2010. As indicated above, the information provided with the charge indicates
that Raines worked more than her average number
of
days during April and May 2010.
Accordingly, we do not find that the charge establishes an adverse action with respect to the
audit. 10
Nexus
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 (North Sacramento)), 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 (Moreland).) 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
On appeal, Raines appears to assert that the District's delay in removing the "no call
notices" from her file until she spoke with Tablack in January 2010 also constitutes an adverse
action. The charge fails to establish, however, that the District had a duty to remove the
notices prior to that time, given the language of the settlement agreement that the notices
would be removed provided Raines did not receive another report before December 30, 2009.
Accordingly, we do not find the alleged delay in removing the notices from Raines' file to
constitute an additional adverse action.
9
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 (Newark).)
The decisions to bar Raines from working at Ramona School and to remove her from
the preferred substitute list are adverse actions. (Sacramento City Unified School District
(2010) PERB Decision No. 2129 (Sacramento) [decision to remove an individual's name from
an active substitute list is an adverse action].) The charge fails to set forth sufficient facts,
however, to establish that the District manipulated the audit to reduce her work assignments in
April and May 2010. As indicated above, the information provided with the charge indicates
that Raines worked more than her average number of days during April and May 2010.
Accordingly, we do not find that the charge establishes an adverse action with respect to the
audit. 10
Nexus
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 (North Sacramento)), 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 (Moreland).) 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
"On appeal, Raines appears to assert that the District's delay in removing the "no call
notices" from her file until she spoke with Tablack in January 2010 also constitutes an adverse
action. The charge fails to establish, however, that the District had a duty to remove the
notices prior to that time, given the language of the settlement agreement that the notices
would be removed provided Raines did not receive another report before December 30, 2009.
Accordingly, we do not find the alleged delay in removing the notices from Raines' file to
constitute an additional adverse action.

Transportation) (1984) PERB Decision No. 459-S; Campbell Municipal Employees Assn. v.
City ofCampbell 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; (3) the employer's inconsistent or contradictory
justifications for its actions (State of California (Department of Parks and Recreation) (1983)
PERB Decision No. 328-S); (4) the employer's cursory investigation of the employee's
misconduct (City a/Torrance (2008) PERB Decision No. 1971-M; Coast Community College
District (2003) PERB Decision No. 1560); (5) the employer's failure to offer the employee
justification at the time it took action (Oakland Unified School District (2003) PERB Decision
No. 1529) or the offering of exaggerated, vague, or ambiguous reasons (McFarland Unified
School District (1990) PERB Decision No. 786); (6) employer animosity towards union
activists (Jurupa Community Services District (2007) PERB Decision No. 1920-M; Cupertino
Union Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that
might demonstrate the employer's unlawful motive. (North Sacramento; Novato.)
Typically, the closeness in time (or lack thereof) between the protected activity and the
adverse action goes to the strength of the inference of unlawful motive to be drawn and is not
determinative in itself. (Moreland; Regents of the University of California (1998) PERB
Decision No. 1263-H.) PERB has found a lapse of less than three months between the
protected activity sufficient to establish the timing factor. 	(See, e.g., Calaveras County Water
District (2009) PERB Decision No. 2039-M [negative evaluation within one to two months of
protected activity and termination within 3-1/2 months]. However, 	Board has held that a
time lapse of five or six months between alleged protected activity and adverse action does not
establish temporal proximity sufficient to support indicia of unlawful motivation. (Los Angeles
Unified School District (1998) PERB Decision No. 1300.)
Transportation) (1984) PERB Decision No. 459-S; Campbell Municipal Employees Assn. v.
City of Campbell 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; (3) the employer's inconsistent or contradictory
justifications for its actions (State of California (Department of Parks and Recreation) (1983)
PERB Decision No. 328-S); (4) the employer's cursory investigation of the employee's
misconduct (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 (Oakland Unified School District (2003) PERB Decision
No. 1529) or the offering of exaggerated, vague, or ambiguous reasons (Mcfarland Unified
School District (1990) PERB Decision No. 786); (6) employer animosity towards union
activists (Jurupa Community Services District (2007) PERB Decision No. 1920-M; Cupertino
Union Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that
might demonstrate the employer's unlawful motive. (North Sacramento; Novato.)
Typically, the closeness in time (or lack thereof) between the protected activity and the
adverse action goes to the strength of the inference of unlawful motive to be drawn and is not
determinative in itself. (Moreland; Regents of the University of California (1998) PERB
Decision No. 1263-H.) PERB has found a lapse of less than three months between the
protected activity sufficient to establish the timing factor. (See, e.g., Calaveras County Water
District (2009) PERB Decision No. 2039-M [negative evaluation within one to two months of
protected activity and termination within 3-1/2 months]. However, the Board has held that a
time lapse of five or six months between alleged protected activity and adverse action does not
establish temporal proximity sufficient to support indicia of unlawful motivation. (Los Angeles
Unified School District (1998) PERB Decision No. 1300.)
10

The Board agent found that the charge failed to establish that Hernandez and Hum, the
Ramona School principal and vice principal responsible for making the decision to bar Raines
from substitute teaching at Ramona School, knew about any
of
her protected activities. 	Thus,
the Board agent concluded, the charge failed to establish a prima facie case
of
retaliation.
While we find the allegations
of
the charge to be sparse, we nonetheless find them
sufficient to warrant issuance
of
a complaint. Although many
of
Raines' protected activities
occurred years before the February 2010 adverse action, her protected activity in seeking
resolution
of
her grievances in January 2010 occurred only one month before the adverse action.
Thus, timing is established.
The charge also contains allegations
of
additional "nexus" factors indicative
of
unlawful
motivation. Thus, the allegation that, during a retirement party on June 13, 2010, Hum told
Raines that the fingernail incident was not the true reason for her removal from Ramona
School could support a finding
of
inconsistent or contradictory justifications or the offering
of
vague and ambiguous reasons. (Newark; Sacramento.) In addition, the allegation that
Hum
stated to Raines that she had "had problems with other principals in the past and mustn't take it
out on him because
of
what others dictate" could support a finding that the decision was made
by someone else, such as Diekmann. Given Diekmann's involvement with Raines' grievances
in July and August 2009, particularly when considered with the other indicia
of
unlawful
motivation, we find the allegations
of
the charge sufficient to support a prima facie case and thus
ISsuance of a comp lamt.	. 	. 	i1
·
In finding the allegations set forth in the charge sufficient to establish a prima facie
case, we do not rely on the allegation that Diekmann "snickered" when passing Raines in the
hall at Ramona School.
11
The Board agent found that the charge failed to establish that Hernandez and Hum, the
Ramona School principal and vice principal responsible for making the decision to bar Raines
from substitute teaching at Ramona School, knew about any of her protected activities. Thus,
the Board agent concluded, the charge failed to establish a prima facie case of retaliation.
While we find the allegations of the charge to be sparse, we nonetheless find them
sufficient to warrant issuance of a complaint. Although many of Raines' protected activities
occurred years before the February 2010 adverse action, her protected activity in seeking
resolution of her grievances in January 2010 occurred only one month before the adverse action.
Thus, timing is established.
The charge also contains allegations of additional "nexus" factors indicative of unlawful
motivation. Thus, the allegation that, during a retirement party on June 13, 2010, Hum told
Raines that the fingernail incident was not the true reason for her removal from Ramona
School could support a finding of inconsistent or contradictory justifications or the offering of
vague and ambiguous reasons. (Newark; Sacramento.) In addition, the allegation that Hum
stated to Raines that she had "had problems with other principals in the past and mustn't take it
out on him because of what others dictate" could support a finding that the decision was made
by someone else, such as Diekmann. Given Diekmann's involvement with Raines' grievances
in July and August 2009, particularly when considered with the other indicia of unlawful
motivation, we find the allegations of the charge sufficient to support a prima facie case and thus
issuance of a complaint."
"In finding the allegations set forth in the charge sufficient to establish a prima facie
case, we do not rely on the allegation that Diekmann "snickered" when passing Raines in the
hall at Ramona School.
11

ORDER
The Public Employment Relations Board hereby REVERSES the dismissal
of
the unfair
practice charge in Case No. LA-CE-5482 and REMANDS this case to the Office
of
the General
Counsel for issuance
of
a complaint consistent with this Decision.
Members Dowdin Calvillo and Huguenin joined in this Decision.
12
ORDER
The Public Employment Relations Board hereby REVERSES the dismissal of the unfair
practice charge in Case No. LA-CE-5482 and REMANDS this case to the Office of the General
Counsel for issuance of a complaint consistent with this Decision.
Members Dowdin Calvillo and Huguenin joined in this Decision.
12