San Bernardino City Unified School District (PERB 2278E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
F
GWENDOLYN DIANE NELSON TROTTER,
Charging Party,
V.
SAN BERNARDINO CITY UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-5431-E
PERB Decision No. 2278
July 11, 2012
Appearances: Gwendolyn Diane Nelson Trotter, on her own behalf; Atkinson, Andelson,
Loya, Ruud & Romo by David E. Robinett, Attorney, for San Bernardino City Unified School
District.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MAR TfNEZ, Chair: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Gwendolyn Diane Nelson Trotter (Trotter)
of
the Office
of
the
General Counsel's dismissal (attached)
of
her unfair practice charge. The charge alleged that
the San Bernardino City Unified School District (District) violated the Educational
Employment Relations Act (EERA)1 by failing to reclassify and pay Trotter according to
correct placement on the certificated salary schedule based on her prior teaching experience at
another school district. 	Office
of
the General Counsel dismissed the charge as beyond
PERB' s jurisdiction, untimely and insufficient to state a prima facie case under EERA.
We have reviewed the entire record in this matter and given our full consideration to
the appeal and the response thereto. 	Based on this review, the Board finds the warningand
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted, all
statutory references are to the Government Code.

dismissal letters to be well-reasoned, adequately supported by the record and in accordance
with the applicable law. Accordingly, the Board hereby adopts the warning and dismissal
letters as the decision of the Board itself.
DISCUSSION
Pursuant to PERB Regulation 32635, subdivision (a)2 an appeal from dismissal of an
unfair practice charge shall:
( 1) State the specific issues of procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the page or part of the dismissal to which each
appeal is taken;
(3) State the grounds for each issue stated.
To satisfy the requirements of this regulation, the appeal must sufficiently place the Board and
the respondent "on notice of the issues raised on appeal." (State Employees Trades Council
United (Ventura, et al.) (2009) PERB Decision No. 2069-H; City & County of San Francisco
(2009) PERB Decision No. 2075-M.) An appeal that does not reference the substance of the
Board agent's dismissal fails to comply with PERB Regulation 32635, subdivision (a). (United
Teachers of Los Angeles (Pratt) (2009) PERB Order No. Ad-381; Lodi Education Association
(Ruddock) (1995) PERB Decision No. 1124; United Teachers 	Glickberg (1990) PERB
Decision No. 846.) Likewise, an appeal that merely reiterates facts alleged in the unfair
practice charge does not comply with PERB Regulation 3263 	subdivision (a). (Contra Costa
Health Services Department (2005) PERB Decision No. 1752-M; County of Solano (Human
Department (2004) PERB Decision No. 1598-M.)
appeal mainly reiterates allegations in the charge concerning Trotter's dispute with
the District about her placement on 	salary schedule, including her efforts to provide the
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

District with verification of her prior teaching experience and the District's failure to respond.3
3
The appeal does not reference any particular portion of the dismissal or otherwise state the
specific issues of procedure, fact, law or rationale to which the appeal is taken. Nor does it
identify the page or part of the dismissal to which the appeal is taken or state the grounds.
Thus, the appeal is subject to dismissal on this ground alone. (City of Brea (2009) PERB
Decision No. 2083-M.)
In addition, PERB Regulation 32635, subdivision (b) provides: 	"Unless good cause is
shown, a charging party may not present on appeal new charge allegations or supporting
evidence." The Board has found good cause when "the information provided could not have
been obtained through reasonable diligence prior to the Board agent's dismissal of the charge."
(Sacramento City Teachers Association (Ferreira) (2002) PERB Decision No. 1503.)
The appeal alleges the occurrence of a meeting in May 2010 with the District and
Trotter's union representative "about restoration of steps," and the lack of follow-up. 	The
appeal also includes two attachments containing information provided by the other school
district concerning Trotter's prior teaching, which are dated February 6, 2004 and April 1,
2008. The charge was dismissed on December 27, 2011. The date of the meeting alleged for
the first time on appeal and the dates of the documents attached to the appeal predate the
dismissal of the charge. The appeal provides no reason why the new allegations concerning
could not have been provided to the Office of
Trotter also argues that she should not be penalized for the time it took the other
school district to process the verification of her prior teaching experience. Assuming the date
of verification has relevance to the calculation of the statute of limitations, the two documents
attaches to the appeal as verification of her prior teaching 	are dated
February 6, 2004 and April 1, 2008. Although there is no good cause to consider these
documents for the first time on appeal, as explained above, it simply is noted that both dates
fall outside the six-month limitations period established by the fiiing of the charge on March 8,
2010. (See EERA sec. 3541.5, subd. (a)(l) ["the board shall not ... [i]ssue a complaint in
respect of any charge based upon an alleged unfair practice occurring more than six months
prior to the filing of the charge."].)

General Counsel during the processing
of
the charge. Thus, there is no good cause to consider
on appeal the new allegations or supporting documents. Moreover, neither the new allegations
nor documents cure the deficiencies in the charge as described in the Office
of
the General
Counsel's warning letter
of
December 9, 2011.
ORDER
The unfair practice charge in Case No. LA-CE-5431-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
4

STATE
OF
CALIFORNIA	
EDMUND
G.
BROWN
	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Los
Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale,
CA
9 I 203-32 I 9
Telephone: (818) 551-2805
Fax
(818) 551-2820
F
December 27, 2011
Gwendolyn Diane Nelson Trotter
14563 Saddlepeak Dr.
Fontana, CA 92336
Re: 	Gwendolyn Diane Nelson Trotter
v.
San Bernardino City Unified School District
Unfair Practice Charge No. LA-CE-5431-E
DISMISSAL LETTER
Dear Ms. Trotter:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 8, 2010. Additional information in support
of
the charge
was filed on July 23, 2010. Gwendolyn Diane Nelson Trotter (Trotter or Charging Party)
alleges that the San Bernardino City Unified School District (District or Respondent) violated
the Educational Employment Relations Act (EERA or Act) 1 by failing to pay her according to
correct placement on the salary schedule.
Charging Party was informed in the attached Warning Letter dated December 9, 2011, that the
above-referenced charge did not state a prima facie case. 	You were advised that,
if
there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, you should amend the charge. 	You were further advised that, unless you amended the
charge to state a prima facie case or withdrew
it
on or before December 16, 2011, the charge
would be dismissed.
PERB has not received either an amended charge or a request for withdrawal. 2 Therefore, the
charge is hereby dismissed based on the facts and reasons set forth in the December 9, 2011
Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,3 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
1
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.
2 I called you on Decernber 20, 2011, in an attempt to verify your receipt of the
Warning Letter, but the call was not answered and there was no opportunity to leave a voice
message.

LA-CE-5431-E
December 27, 2011
Page 2
this dismissal. 	(Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with
the
Board
must contain the case name and number, and the original and five (5) copies
of
all
documents
must be provided to the Board.
A document is considered
"filed"
when actually received during a regular
PERE
business day.
(Cal. Code Regs, tit.
8, §§
32135, subd. (a) and 32130; see also Gov.
Code,§
11020, subd. (a).)
A document is also considered
"filed"
when received by facsimile transmission before
the
close
of
business together with a Facsimile Transmission Cover Sheet which meets the
requirements
of
PERB Regulation 32135(d), provided the filing party also places the
original,
together with the required number
of
copies and
proof
of
service, in the U.S. mail. 	(Cal.
Code
Regs, tit.
8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090
and
32130.)
The
Board's
address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 3 22-8231
FAX: (916) 327-7960
If you file a timely appeal
of
the refusal to issue a complaint, any other party may file
with
the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Cal. Code Regs, tit. 8, § 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served
upon
a
party or filed with the Board itself. 	(See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited.in the mail or deposited with a delivery service and properly addressed. 	A
document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. 	A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
3 PERE Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-5431-E
December 27, 2011
Page 3
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Cal. Code Regs, tit.
8,
§ 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when
the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
By~
Valerie Pike Racho
Regional Attorney
Attachment
cc: 	Sherry G. Gordon, Attorney

STATE
OF CALIFORNIA	
EDMUND
G.
BROWN
JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Los
Angeles Regional Office700
N.
Central
Ave
, Suite 200
Glendale,
CA
9 I 203-32 I9
Telephone
(8
I
8)
55
i-2805
Fax
(8
I
8)
551-2820
F
December
9,
2011
Gwendolyn Diane Nelson Trotter
14563 Saddlepeak Dr.
Fontana, CA 92336
Re: 	Gwendolyn Diane Nelson Trotter
v.
San Bernardino City Unified School District
Unfair Practice Charge No. LA-CE-5431-E
WARNING LETTER
Dear Ms. Trotter:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 8,2010. Additional information in support
of
the charge
was filed on July 23, 2010. 	Gwendolyn Diane Nelson Trotter (Trotter or Charging Party)
alleges that the San Bernardino City Unified School District (District or Respondent) violated
the Educational Employment Relations Act (EERA or Act) 1 by failing to pay her according to
correct placement on the salary schedule.
Summary
of
Facts Provided by the Charging Party
Trotter has been employed by the District as a music teacher since approximately June 27,
2003, and is included in a bargaining unit exclusively represented by the San Bernardino
Teachers Association (Association). Around December 2003, Trotter received a telephone call
from a District Human Resources staff person informing her that the District could not credit
the years
of
experience she had at another school district during the period
of
1996-1999,
because during that time she had been working as a day-to-day substitute. From 1999-2003,
Trotter also worked in that same school district as a regular full-time employee. 	Initial
placement on the District's salary schedule is determined by an employee's education level and
prior experience. On December 18, 2003, Trotter signed a "probationary contract" that
"showed acceptance"
of
four years
of
previous experience and placed her at step five on the
salary schedule. Trotter's original understanding at the time
of
her hire, however, was that she
would be placed at step nine on the salary schedule.
On or about February 5, 2004, a representative from Trotter's former school district verified
that Trotter had been on continuous assignment during the years
of
employment at issue.
Trotter provided this documentation to the District and to the Association. 	When Trotter called
the District to check on the status of her salary schedule placement on or around that same
date, she was informed that District Assistant Superintendent Harold Vollkommer
--~-------····T __ _
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.

LA-CE-5431-E
December
9,
2011
Page 2
(Vollkommer) would not grant credit for her years as a substitute in the other school district.
Trotter then contacted Association President Peggy Taylor, who said that there was nothing the
Association could do to assist Trotter in resolving the issue.
A few years later, around April 2007, Trotter spoke with newly-appointed Association
President Linda Whittaker (Whittaker), and again asserted that she had been incorre.ctly placed
on the salary schedule relative to her years
of
experience. 	Whittaker then referred Trotter to
Association Executive Directors Conrad Ohlson and Peg Tracey (Tracey). 	In August
2008,
Tracey wrote to Vollkommer, advocating for Trotter to be credited on the salary schedule for
her time as a substitute, and "restored to full pay for her previous experience." There is
no
information in the charge whether Vollkommer ever responded to the Association or to
Trotter
regarding that letter, but apparently the problem persisted, because Trotter was still requesting
a meeting over the issue with Vollkommer in February 2010.
	It
appears that such a meeting
took place between Trotter and Vollkommer on or around July 19, 2010, wherein Vollkommer
explained the District's rationale for not crediting the substitute experience, and Trotter
asserted that under the collective bargaining agreement between the Association and the
District, she should have at least been placed at step six
of
the salary schedule instead
of
step
five.
Trotter notes that she is a 59 year old African-American woman, and believes that she is a
victim
of
age, race, and gender discrimination by the District.
For the reasons discussed below, the facts in the charge do not demonstrate a prima facie
violation
of
EERA.
Discussion
1.
	Claims
of
Age, Race, and Gender Discrimination
PERB is a quasi-judicial agency with exclusive jurisdiction over California's public sector
collective bargaining statutes, including EERA. PERB's jurisdiction does not extend to other
independent statutory schemes arising under state and federal laws. (Alum Rock Union
Elementary School District (2005) PERB Decision No. 1748.) Therefore, PERB has no power
to review allegations
of
age, race, or gender discrimination. (Ibid.) 	Accordingly, these
allegations may not be considered by PERB when evaluating the unfair practice charge.
2. 	Timeliness
of
the Charge and the EERA Discrimination Standard
EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with 	to
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 Join! Community College District
(1996) PERB Decision No. 1177.) A charging party bears the burden of demonstrating that the
charge is timely filed. 	(Tehachapi Un(fied School District (1993) PERB Decision No. 1024;
Stare of'Calif'ornia (Department of'Jnsurance) (1997) PERB Decision No. 1197-S.)

LA-CE-5431-E
December
9,
2011
Page 3
The facts in the charge show that the District informed Trotter in December 2003 that
she was
ineligible to receive credit on the salary schedule for her years as a substitute in the
other
district. 	At least by February
5,
2004, after Vollkommer had received documentation from the
other school district regarding her years
of
service, Trotter knew that Vollkommer still
refused
to credit her time as a substitute. 	Thus, in order to be timely filed, an allegation that this
conduct by the District was in violation
of
EERA must have been filed no later than
August
5,
2004. 	As this charge was not filed until March
8,
2010, it
is
several years untimely and subject
to dismissal for this reason alone.
Moreover, even
if
the charge had been filed within the six-month limitation period, the facts
of
this matter would not meet the standard for finding unlawful discrimination under EERA. 	To
demonstrate that an employer discriminated or retaliated against an employee in violation
of
EERA section 3543.5(a), the charging party must show that: (1) the employee exercised rights
under EERA; (2) the employer had knowledge
of
the exercise
of
those rights; (3) the
employer
took adverse action against the employee; and (4) the employer took the action because
of
the
exercise
of
those rights. 2 (Novato Unified
School
District (1982) PERB Decision No. 210.)
Thus, in order to sustain a discrimination violation, there must be facts demonstrating
that
an
employer's actions were unlawfully motivated, i.e., that such actions were taken in direct
response to the employee's exercise
of
protected rights under EERA.
	In
this case, the
only
instance
of
protected conduct
of
which the District had requisite knowledge is Tracey's August
12, 2008 letter to Vollkommer. 3 ( County
of
Riverside (2011) PERB Decision No. 2184-M
[ seeking union assistance for a workplace issue is well-established protected activity
J.)
However, this protected conduct took place at least four years after the District had takenthe
position that Trotter was not entitled to credit on the salary schedule for her years
of
experience as a substitute. 	PERB has consistently held that the timing
of
an employer's action
does not support an inference
of
unlawful motive when the adverse action predates the
2 This last element
of
the test for unlawful discrimination may be shown through
circumstantial evidence, and is commonly referred to as the "nexus" or connection between
protected conduct and adverse action. (Moreland Elernentary School District (1982) PERB
Decision No. 227.) Nexus may be demonstrated by adverse action occurring closely in time
to
protected conduct (Ibid.) and at least one additional factor, such as, disparate treatment
of
the
employee (State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-
S), a departure from established procedures when dealing with the employee (Santa Clara
Unified School District (1979) PERB Decision No. 104), and inconsistent, nonexistent,
contradictory, or vague justifications for the employer's actions. 	(Oakland Unffied School
District (2003) PERB Decision No. 1529; McFarland Unified School District (1990) PERB
Decision 	786; State
of
California (Department
of
Parks and Recreation) (1983) PERB
Decision No. 328-S.)
3 Notably, even if some reasonable period of time after the date of the August 12, 2008
letter was used to establish the point at which Trotter either knew, or should have known, that
the District would not change her salary schedule placement, the charge would still be filed
well outside the six-month limitation period.

LA-CE-5431-E
December 9, 2011
Page 4
employee's
protected activity, as is the precise case here. (San Mateo County
Community
College District (2008) PERB Decision No. 1980; Berkeley Unified School District
(2004)
PERB Decision No. 1702.) Accordingly, even
if
the charge had been filed in a timely
manner,
there is no evidence to suggest that the District's action toward Trotter was in any way
connected to her protected conduct, and therefore, no violation
of
EERA is demonstrated.
For these reasons the charge, as presently written, does not state a prima facie case.4
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. 	The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under
penalty
of
perjury by an authorized agent
of
Charging Party. 	The amended charge must have the
case
number written on the top right hand corner
of
the charge form. 	The amended charge
must
be
served on the Respondent's representative and the original
proof
of
service must be filed
with
before December 16, 2011, 5
PERB. 	If an amended charge or withdrawal is not filed on or
PERB will dismiss your charge.
If
you have any questions, please call me at the above
telephone number.
Sincerely,
Valerie Pike Racho
Regional Attorney
YR
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging pa1iy is capable
of
providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories
of
law, fair proceedings,
if
not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid)
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)