Jurupa Unified School District (PERB 2420E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CHRISTOPHER GILLOTTE,
Charging Party,
v.
JURUPA UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5693-E
PERB Decision No. 2420
April 23, 2015
Appearances: Richard D. Ackerman, Attorney, for Christopher Gillotte; Fagen, Friedman &
Fulfrost
by
Kerrie Taylor, Attorney, for Jurupa Unified School District.
Before Huguenin, Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions
by
Christopher Gillotte (Gillotte) and Jurupa Unified School
District (District) to a proposed decision (attached)
by
an administrative law judge (ALJ). The
complaint alleged that the District violated the Educational Employment Relations Act
(EERA) section 3543.5(a)1
by
terminating Gillette's employment in retaliation for his
protected activity
of
filing the present unfair practice charge.
At the administrative hearing, the ALJ granted Gillotte's motion to amend the
complaint to include an allegation that the District retaliated against Gillette
by
denying him
paid personal necessity leave to attend a court proceeding involving another District employee.
The Board has reviewed the entire record in this case, including the ALJ' s findings
of
fact and conclusions oflaw, and both parties' exceptions and response thereto, and we find that
the ALJ's findings of fact are supported by the record. Accordingly, we adopt the ALJ's
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

findings
of
fact as the findings
of
the Board itself, except as otherwise indicated in our
discussion below. Specifically, we agree with the ALJ that Gillotte established the four factors
identified in Novato Unified School District (1982) PERB Decision No. 210 (Novato) as
necessary to prove a prima facie case
of
discrimination in violation
of
BERA
section 3543.S(a). Gillotte engaged in protected conduct; the District's relevant decision-
makers had knowledge
of
the protected conduct; and the District took the adverse action
against Gillotte by terminating his employment; and the District's action was motivated, at
least in part,
by
Gillotte's protected activity.
Although we agree with the ALJ's conclusion that Gillotte proved a causal nexus
between his protected activity and the District's termination
of
his employment, we find a
different basis for this conclusion which we explain below. However, in light
of
Gillotte's
repeated instances
of
misconduct, both before and after his protected conduct, we concur with
the ALJ' s conclusion that the District satisfied its burden
of
proving that it would have taken
the same actions even
if
Gillotte had not participated in protected conduct.
Therefore, in accordance with the following discussion
of
issues raised
by
both parties'
exceptions, we affirm the ALJ's conclusions oflaw, except for the conclusion that requesting
personal necessity leave was not protected conduct.
PROCEDURAL HISTORY
Gillotte initiated this action on April 30, 2012, by filing an unfair practice charge
against the District alleging that the District violated BERA by denying his request for personal
necessity leave in October 2011. The District filed a position statement in response to that
allegation on May 16, 2012. A first amended charge was filed on May 29, 2012, alleging that
the District violated BERA by terminating Gillotte's employment on May 7, 2012. A second
amended charge was filed on September 7, 2012, stating that the charging party "restricts the
2

scope
of
the instant complaint" [sic] to the District's decision to terminate Gillotte's
employment on or about May 7, 2012. On November 13, 2012, the Office
of
the General
Counsel issued a complaint alleging that the District terminated GiUotte's employment on
May 7, 2012, because he filed the instant unfair practice charge with PERB on April 30, 2012.
The District answered the complaint on December 3, 2012, denying that its actions
were retaliatory and raising various affirmative defenses. A formal hearing was held on
April 8-9, 2013. At the hearing, Gillotte moved to amend the complaint to re-allege that the
District had retaliated against him by denying his request for a day
of
personal necessity leave
in October 2011, because he requested to attend a court hearing regarding the termination
of
another employee with whom he was participating in collective grievance activity. The ALJ
granted Gillotte's motion to amend the complaint over the District's objection, but in the
proposed decision dismissed this allegation as untimely.
The proposed decision issued on October 31, 2013, and both parties filed timely
exceptions to it.
FACTUAL SUMMARY
During the relevant period
of
time in this case, Gillotte taught math at two different
high schools within the District: Rubidoux High School (Rubidoux) and Patriot High School
(Patriot). During the same period
of
time, Tamara Elzig (Elzig) was the District assistant
superintendent
of
personnel services.
Beginning in 2007, the District received student complaints about Gillotte. These
complaints described Gillotte expressing anger at and disciplining students without
provocation, embarrassing and belittling students, making ethnically insensitive comments,
engaging in conduct that distracted his students and interfered with their learning, scaring and
humiliating students with physically aggressive movements such as slamming tables, and being
3

frequently rude, sarcastic, and condescending when he spoke to students. These complaints,
lodged in 2007, preceded Gillotte's first acts of protected conducted, viz. filing 15 grievances
in late Spring of 2010.
Site and District administrators met with Gillotte in multiple meetings over the course
of the 2007-08 school year in response to these complaints and presented him with summaries
of meeting or summaries of allegations,2 but the actual written student complaints were not
presented to Gillotte at this time. Gillotte was permitted to respond to all allegations. He
typically claimed that the student complaints mischaracterized the facts, or he gave purported
justifications for his actions. Gillotte admitted to some of the accusations. Elzig was informed
of the student complaints, the District's investigation of them, and Gillotte's response.
When Elzig was involved in an investigation of alleged employee misconduct, her
practice was to issue a written summary of allegations to the employee. After presenting a
summary of allegations to Gillotte in November 2008, Elzig issued Gillotte a letter of
reprimand on December 10, 2008, directing him to treat all students with courtesy and respect,
and to develop classroom management skills that facilitated learning rather than demeaning
students.
On or about May 5, 2009, Elzig received another memorandum outlining continuing
concerns regarding Gillotte with new student statements attached. Elzig then prepared a notice
of unprofessional conduct dated June 2, 2009, which summarized the new student complaints
A "summary of meeting" is a written memorialization of a meeting between a site
administrator and a teacher regarding concerns raised about the teacher. The site administrator
provides the summary of meeting to the teacher after the meeting. The District considers a
summary of meeting to be on the spectrum of progressive discipline. It is typically generated
after a verbal interaction between the administrator and the teacher in which the administrator
expresses the concern, receives the teacher's response, and sets expectations for the future.
(R.T. Vol. II, p. 20.) A "summary of allegations," on the other hand, is typically a document
created by Elzig or another District administrator to summarize more serious allegations
against a teacher. (Id. at p. 22.)
4

and previous allegations, and presented it to Gillotte in a meeting on or around that date.3
Gillotte responded by claiming that the District was penalizing him twice by repeating the
previous allegations from the December 2008 letter of reprimand.
At the conclusion of the 2008-2009 school year, Gillotte voluntarily agreed to transfer
from Rubidoux to Patriot for the following year in order to get a fresh start.
After complaints were lodged against Gillotte at the new school in the Fall of 2009,
Roberta Pace (Pace), the assistant principal of curriculum and instruction at Patriot,
interviewed the two complaining students and other students from Gillotte' s classes selected at
random. She then provided a written summary of her investigation with the attached student
statements to school Principal Jay Trujillo (Trujillo) and Elzig.
After a January 14, 2010, summary of allegations, Elzig issued another notice of
unprofessional conduct dated March 24, 2010, to Gillotte based upon the incidents included in
the January 2010 summary of allegations. Gillotte was directed, among numerous other things,
to refrain from mocking students or calling them demeaning names, to provide assistance to
students who needed it, and not to discuss an individual student's performance or grades in
front of other students. Gillotte was warned that failure to immediately correct the
performance deficiencies outlined therein may result in his dismissal from employment.
In Gillotte's performance evaluation by Trujillo for the 2009-2010 school year, he was
rated as "Meets Criteria" in four categories, but "Unsatisfactory" in the categories of
"CREATING AND MAINTAINING EFFECTIVE ENVIRONMENTS FOR STUDENT
LEARNING," and "DEVELOPING AS A PROFESSIONAL EDUCATOR." The overall
A notice of unprofessional conduct is prescribed by Education Code section 4493 8,
and requires a school district to provide a permanent certificated employee with notice of
alleged unprofessional conduct and an opportunity to correct the conduct at least 45 days prior
to the school district dismissing the employee.
5

rating was "unsatisfactory." Trujillo noted the District's ongoing concerns regarding Gillotte's
classroom management skills and behavior toward students.
On May 27, 2010, Trujillo sent Elzig an e-mail message that stated in relevant part:
"I'm taking out a hit on Chris Gillotte. He is bad for kids. I think I can get it done for free."4
Sometime in June 2010, Trujillo awarded Gillotte with a certificate for being a "Champion of
Character." The record was unclear about the circumstances that led to this award, but it
appeared to be intended to recognize some positive contribution by an employee.
Gillotte's Grievance and Group Activities
Gillotte filed approximately 15 grievances sometime in late Spring of 2010. Sometime
near the end of the 2009-2010 school year, Gillette and several other District employees
submitted an anonymous group complaint through an attorney at a regular meeting of the
District's governing board. According to Gillette's testimony, the District was not aware that
Gillette was a member of the group who submitted the complaint until approximately late
Summer or Fall of 2010, when Patriot Assistant Principal Sarah Niemann (Niemann) asked
Gillette if he was part of a class action group that was suing the District, and he responded that
he was. (R.T. Vol. I, pp. 37-39.)5 The group complaint was not submitted into the record.
Later, Gillette and some or all of the group of employees that had presented the group
complaint to the District filed a lawsuit against the District. Since the record does not reflect
the lawsuit's allegations, it is impossible to determine if the lawsuit constituted protected
activity.
The proposed decision mistakenly stated that the e-mail was sent on May 24, 2010,
and that it stated, "I'm taking a hit out on Chris Gillotte." (Proposed Dec., p. 15.) These
minor errors do not alter our assessment.
5 Gillette did not allege or otherwise present evidence that this inquiry by Niemann
interfered with any rights protected under EERA, and the ALJ therefore did not consider
whether Niemann's question violated EERA, a matter to which Gillette did not except. The
matter is therefore not before us.
6

Subsequent to Gillotte's Spring 2010 grievances, the District received additional
student complaints about Gillotte, including complaints that
he
belittled and embarrassed
students, was sarcastic on a daily basis, and refused to help students with their questions about
the curriculum.
Events in 2010-2011 and 2011-2012 School Years
Gillotte voluntarily agreed to participate
in
the peer assistance and review (PAR)
teacher mentorship program in 2010-2011 for improving his performance issues. Gillotte's
PAR participation was satisfactory, and his teaching mentor made generally positive
observations.
A meeting was scheduled with Gillotte for December 9, 2011, to discuss student
complaints and a related District investigation, but this meeting was cancelled and rescheduled
more than once to accommodate the schedule
of
Gillotte's attorney. The District placed
Gillotte on paid administrative leave on or about December 15, 2011, pending the completion
of
the investigation. At a meeting on January 26, 2012, (with his attorney participating
by
telephone), Gillotte was presented with a written summary
of
allegations. Unlike previous
disciplinary documents, this summary
of
allegations had actual student statements attached,
rather than just summaries
of
their statements. Elzig testified that it is the District's general
policy and practice not to share student complaints with employees until they are going to a
dismissal hearing. 6 Gillotte
did
not respond verbally during the meeting to these latest
6 The District asserted in its response to Gillotte's statement
of
exceptions that it
attached the student statements to the summary
of
allegations to preemptively address
Gillotte's anticipated defense that he was not provided the documents in a timely manner.
(Response, p. 38:10-12.) In a response to the 2009 notice of unprofessional conduct, Gillotte
objected to the District's use of anonymous student allegations that deprived him knowing of
the context in which his alleged remarks to students were made.
7

allegations, but his union, National Education Association-Jurupa (NEA-J), submitted a written
response dated February 17, 2012.
On
April 30, 2012, Gillotte filed the present unfair practice charge, alleging that the
District violated BERA section 3543.5
by
denying him personal necessity leave the previous
October in order to attend the court hearing
of
a fellow employee.
On or about May 7, 2012, Elzig initiated the dismissal process against Gillotte
by
submitting to the District's governing board a statement
of
charges consisting
of
approximately
325 pages.7 Gillotte was not info1med before May 7, 2012, that management intended to
submit the charges to the board
of
education, nor was he provided with a Skelly hearing. 8 The
governing board voted to approve initiating the formal process required by the Education Code
to dismiss a permanent certificated employee.
Gillotte received the notice
of
charges and intent to proceed with his termination on or
about May 8, 2012. These documents included actual student statements concerning Gillotte's
conduct between 2008 and 2011. At some point in May 2012, Gillotte requested a copy
of
his
site files and personnel file, and he was told that he could review these at the District office
7 Elzig inadvertently failed to attach a signed verification
of
the charges at that time.
She later corrected her error on August 17, 2012, by signing a verification
of
the charges
against Gillotte and presenting it to the board
of
education. She also testified, however, that
when the charges were submitted to the board
of
education in May 2012, she believed them to
be true and correct.
8 The term "Skelly hearing" refers to a pre-disciplinary hearing that complies with due
process requirements set forth in Skelly
v.
State Personnel Bd. (1975) 15 Cal.3d 194.
According to Elzig, it is the District's practice to provide a Skelly hearing only when an
employee is charged with "immoral conduct," which did not apply in this circumstance.
Moreover, Kolter
v.
Commission on Professional Competence
of
the Los Angeles Unified
School Dist. (2009) 170 Cal.App.4th 1346, held that a Skelly hearing is not required prior to
the initiation of permanent teacher dismissal proceedings, because the procedural protections
of Education Code section 44934 et seq., provide the procedural due process mandates of
Skelly. (Id. at p. 1353.)
8

under supervision, and would be allowed to copy certain documents. Gillotte received a copy
of
his personnel file, but did not review his site and investigation files at the District office.
The Commission on Professional Competence Hearing
Pursuant to Education Code section 44944, a five-day evidentiary hearing was held
before a three-person commission on professional competence (CPC) panel in February 2013
regarding whether there was cause for the District to terminate Gillotte. Ten then-current or
former students testified
\
on behalf
of
the District. Two
of
these students were from Rubidoux,
and had taken Gillotte's classes during the 2008-2009 school year. The other eight students
who testified were from Patriot. Two
of
the Patriot students had Gillotte as a teacher in the
2009-2010 school year. The other six Patriot students had Gillotte as a teacher during 2011.
All
of
the students who testified had provided statements and been interviewed during the
course
of
the District's three different investigations into Gillotte' s alleged misconduct during
the 2008-2009; 2009-2010, and 2011-2012 school years.
The CPC unanimously determined on March 19, 2013, that Gillotte should be
dismissed. The following day, the District's governing board voted to terminate his
employment.9
ALJ PROPOSED DECISION
The ALJ determined that Gillotte established a prima facie case that the District
terminated his employment in retaliation for his engaging in protected activity, including filing
the instant unfair practice charge and filing grievances in September 2010, all
of
which the
ALJ correctly determined were activities unquestionably protected by EERA. Elzig, the
individual primarily responsible for taking the adverse action
of
terminating Gillotte's
9 Pursuant of Education Code section 44944(c)(4), the decision of the CPC shall be
deemed the final decision of the school district's governing board.
9

employment, knew
of
these protected activities. The ALJ also concluded that Gillotte engaged
in protected conduct by having NEA-J represent him during a meeting in May 2009 and
responding to proposed disciplinary action in February 2012 with the District's knowledge.
While the ALJ recognized that these instances
of
protected conduct were not included in the
complaint, as amended, the ALJ concluded that these facts related to matters in the PERB
complaint and were fully litigated, and thus it was appropriate to consider them. The District
did not except to the ALJ' s conclusion on this point.
However, the ALJ concluded that Gillotte's attendance at a hearing concerning another
employee named Lenore Boykin (Boyldn) was not protected, as Gillotte had failed to
demonstrate that his attendance was in pursuance
of
his right to gather information related to
his participation in collective action. The ALJ also inferred that the amended complaint
alleged that requesting personal necessity leave under the collective bargaining agreement
(CBA), regardless
of
the purpose for the leave, was a protected right. This was not protected
activity, according to the ALJ because it was not a "logical continuation
of
group activity''
(San Joaquin Delta Community College District (2010) PERB Decision No. 2091, p. 3
(San Joaquin Delta)), but rather was for his own benefit. As we explain further below, we do
not adopt this conclusion
of
the ALJ.
With regard to the nexus between protected conduct and adverse action, the ALJ found
that Elzig' s submission
of
a statement
of
charges and intent to terminate Gillotte to the
District's governing board approximately one week after Gillotte filed the unfair practice
charge and approximately three months after NEA-J responded to proposed disciplinary action
on Gillotte's behalf supported a finding of nexus.10
10
However, the ALJ concluded that nexus was not demonstrated by Gillotte's failure to
receive a Skelly hearing, by his not receiving prior notice that the District's board of education
was going to vote over whether to issue a notice of intent to terminate his employment on
10

This timing, along with the following factors, led the ALJ to conclude that Gillotte had
established nexus. According to the ALJ, the District departed from its investigation
procedures when responding to the various student complaints against Gillotte. Specifically
the
ALJ
noted the fact that the January 26, 2012, summary
of
allegations had written student
complaints attached. Prior to then, all previous disciplinary documents provided to Gillotte by
the District contained administrator summaries
of
student statements, but not the statements
themselves. Elzig testified that the District's practice was not to provide written student
complaints to employees until the employee was going to a dismissal hearing. The ALJ
concluded that, according to Elzig' s admission, the attachment
of
student statements meant
that the District had already decided at that point to terminate Gillotte's employment before he
was allowed input into the investigation, which was inconsistent with the investigation process
that Elzig testified to.
The ALJ also determined that Trujillo, one
of
the administrators who investigated
Gillotte, appeared biased, as demonstrated
by
an e-mail message he sent to Elzig that stated, in
relevant part: "I'm taking out a hit on Chris Gillotte. He is bad for kids. I think I can get it
done for free." The ALJ concluded that this e-mail statement, coupled with the District's
inconsistent statements at hearing regarding Trujillo's involvement in the investigation, was
evidence
of
nexus. Based on these findings, the ALJ concluded that Gillotte had satisfied the
nexus element
of
the Novato test for establishing a prima facie case
of
retaliation.
The ALJ concluded, however, that the District had satisfied its defensive burden
of
proving that it would have terminated Gillotte even
ifhe
had not participated in protected
conduct, in light
of
Gillotte' s repeated instances
of
misconduct, both b,efore and after his
May 7, 2012, by being deprived of the ability to address the board
of
education on that issue,
by Elzig's failure to verify the charges against him at the time they were presented to the board
of education, or by the District's maintenance of investigation and site files separate from his
official personnel file. (See Proposed Dec., pp. 45-47.)
11

protected conduct. Based on Gillotte's misconduct and failure to respond to the District's
summary
of
allegations over the 2011 investigation, the ALJ concluded that the District
terminated Gillotte's employment because ofrepeated and credible complaints about his
treatment
of
students, and not because
of
his protected conduct. The District therefore
successfully rebutted the prima facie case, according to the ALJ.
With regard to the allegation over the denial
of
personal necessity leave that Gillotte
raised in his original unfair practice charge filed on April 30, 2012, the ALJ concluded that
Gillotte intended to abandon his original allegation and withdraw it
fron;i
the charge at the time
he filed his second amended charge. The ALJ also concluded that when Gillotte moved during
the hearing on April
8,
2013, to amend the complaint to include the denial ofleave allegations,
the claims were untimely. The ALJ concluded that the amendment
of
the complaint did not
relate back to facts in the operative charge (viz., the second amended charge, in which Gillotte
withdrew the allegation concerning the denial
of
personal necessity leave), and that the relation
back doctrine does not excuse the untimely filing.
Further, the ALJ determined that Gillotte had not demonstrated that his participation in
an anonymous group complaint submitted through an attorney in or around June 2010 was
known by the District.
GILLOTTE'S EXCEPTIONS
Gillotte's exceptions fail to comply with PERB Regulation 32300(a)(l) in several
respects. He has failed to "state the specific issues
of
procedure, fact, law or rationale to which
each exception is taken," and he has failed to designate the portions
of
the r~cord he relies on
for his exceptions. Instead he has identified in general terms and with citations to a range
of
page numbers
of
the proposed decision the conclusions to which he excepts.
12

Reading his exceptions liberally, the exceptions can be fairly summarized as follows.
He excepts generally to the
ALJ's
analysis
of
the District's investigation and discipline
policies, as well as to the conclusion that he was given access to his site personnel file prior to
his termination. Gillotte asserts that there was no proof that
he
was presented with information
allegedly received from students
by
the District and complains that the "summary
of
meeting"
documents were no substitute for the actual student complaints, implying that
he
never
received copies
of
the student complaints. He asserts that the District kept secret files on his
conduct that were later used to discipline him in violation
of
Education Code section 44031.
He also complains that he was not given a fair opportunity to defend himself because he was
allegedly not provided the names
of
the students who lodged complaints against him until a
point in time that was too late for him to interview those students in preparation for his
defense.
Gillotte also excepts to the
ALJ's
discussion
of
his misconduct, on the ground that he
was not provided with actual student complaints at the time. He also objected to the ALJ's
discussion
of
his performance evaluation on the ground that it was allegedly done in violation
of
the CBA. He further takes exception to the ALJ's interpretation and application
of
Novato,
supra, PERB Decision No. 210.
Gillotte also excepts to the ALJ's "discussion
of
the 'personal necessity' leave request"
and to her conclusion that attending the Boykin hearing was not protected activity. According
to Gillotte, attendance at this hearing was designed to benefit more than just him, although his
exceptions fail to explain the basis for this assertion.
Notably absent from his exceptions is a clear statement that Gillotte excepts to the
ALJ's ultimate conclusion that the District did not violate EERA section 3543.S(a) by
terminating his employment.
13

DISTRICT'S RESPONSE AND CROSS-EXCEPTIONS
The District urges PERB to deny Gillotte' s exceptions because he has failed to comply
with PERB Regulation 32300.
11
The District argues that because
of
this failure, the District
and the Board are incapable
of
adequately responding to Gillotte's exceptions. Moreover,
according to the District, the evidence and the law support the ALJ's factual findings and
conclusions
oflaw,
except her conclusion that Gillotte established a prima facie case.
The District also argues that Gillotte inappropriately raised new allegations with regard
to Gillotte's May 10, 2010, performance evaluation which do not satisfy the requirements for
consideration
of
unalleged violations. According to the District, Gillotte also inappropriately
11
PERB regulations are codified at California Code
of
Regulations, title
8,
section 31001 et seq. PERB Regulation 32300 states, in relevant part:
(a) A party may file with the Board itself an original and five
copies
of
a statement
of
exceptions to a Board agent's proposed
decision issued pursuant to Section 32215, and supporting 	·
brief.
	. . . The statement
of
exceptions or brief shall:
(1) State the specific issues
of
procedure, fact, law or rationale to
which each exception is taken;
(2) Identify the page or part
of
the decision to which each
exception is taken;
(3) Designate by page citation or exhibit number the portions
of
the record,
if
any, relied upon for each exception;
(4) State the grounds for each exception.
(b) Reference shall be made in the statement
of
exceptions only
to matters contained in the record of the case.
(c) An exception not specifically urged shall be waived.
14

attempted to introduce new evidence in his exceptions by referring the Board to the facts
of
a
separate Board decision, without satisfying the necessary requirements for doing so.
12
The District cross-excepted to the ALJ' s conclusion that Gillotte had satisfied his
burden
of
proving a prima facie case
of
retaliation. Specifically, the District argues that
Gillotte failed to present evidence
of
nexus between his protected activity and the District's
termination
of
his employment, denying that it acted inconsistently by attaching student
statements to the summary
of
allegations dated December 13, 2011, or that it offered
inconsistent statements at the hearing regarding Trujillo's involvement in the investigation.
DISCUSSION
We concur with the ALJ's conclusions that Gillotte satisfied the elements
of
the test for
retaliation as proscribed in Novato, supra, PERB Decision No. 210, specifically that Gillotte
engaged in protected activity, that the relevant decision-makers had knowledge
of
the protected
activity, and that the District took adverse action against Gillotte.
With respect to the nexus element
of
retaliation, viz. whether the District terminated
Gillotte's employment because
of
his protected activity, we agree that Gillotte met his burden
of
proving nexus, but we rely on different reasons than the ALJ.
We first address Gillotte's exceptions, and then consider the District's exceptions.
1.	
Gillotte's Exceptions
We agree with the District that Gillotte' s exceptions fail to comply with PERB
Regulation 32300. Specifically, the exceptions fail to state the specific issues
of
procedure,
fact, law or rationale to which each exception is taken as required by subsection (a)(l)
of
PERB Regulation 32300; fail to designate by page citation or exhibit number the portions
of
the record relied upon for each exception as required by subsection (a)(3); and fail to
12
This decision is Jurupa Unified School District (2012) PERB Decision No. 2283
(Jurupa).
15

adequately state the grounds for each exception as required
by
subsection (a)(4). Gillotte's
exceptions consist largely
of
a reiteration
of
arguments he made to the ALJ,
but
contain no
reference to the record and "point[] to no specific errors
of
law or prejudicial errors
of
fact
made
by
the ALJ." (Los Angeles Unified School District (1989) PERB Decision No. 785,
p. 2.)
Furthermore, Gillotte failed to meet the minimum requirement
of
excepting to the
ALJ'
s ultimate conclusion that the District terminated his employment for non-retaliatory or
discriminatory reasons unrelated to his protected conduct. We will disregard exceptions that
fail to address the "issue central to the proposed decision." (State
of
California (Department
of
Youth Authority) (1995) PERB Decision No. 1080-S, p. 3.) For these reasons, we deny
Gillotte' s exceptions.
We disregard Gillotte's new allegations with regard to his May 10, 2010, performance
evaluation, since it fails to satisfy any
of
the requirements for the Board to address unalleged
violations as enumerated in Fresno County Superior Court (2008) PERB Decision No. 1942-C:
unalleged violations may be reviewed by the Board when the
following requirements are met: (1) adequate notice and
opportunity to defend has been provided the respondent; (2) the
acts are intimately related to the subject matter
of
the complaint
and are part
of
the same course
of
conduct; (3) the unalleged
violation has been fully litigated; and (4) the parties have had the
opportunity to examine and be cross-examined on this issue.
[Citations omitted.] The failure to meet any
of
these
requirements prevents the Board from considering the unalleged
conduct as a violation.
(Id. at p. 14.)
We also disregard Gillotte's attempt to introduce the facts
of
a separate Board decision,
viz. Jurupa, supra, PERB Decision No. 2283, without satisfying the necessary requirements
for doing so. (See PERB Reg. 32300(b).)
16

Even
if
we were to consider Gillotte's exceptions, we agree with the ALJ's conclusion
that the District satisfied its burden
of
proving that it would have taken the same actions even
if
Gillotte had not participated in protected conduct, in light
of
Gillotte's repeated instances
of
misconduct that occurred both before and after his protected conduct.
Gillotte alleges various violations
of
the District's progressive discipline policy, the
CBA
of
"the parties,"
13
the Education Code, and the First Amendment to the U.S. Constitution.
However, Gillotte has not pointed to any part
of
the record indicating that, subsequent to his
engaging in protected activities, the District's treatment
of
student complaints and its discipline
of
Gillotte for his treatment
of
students differed from its handling
of
his discipline prior to his
protected activity. Nor does the evidence show that the District's handling
of
Gillotte's
discipline differed from that
of
any other similarly-situated employee.
Gillotte's allegations that the District violated Education Code section 44031 numerous
times prior to his protected conduct erode his claim that similar alleged violations subsequent
to his protected conduct were evidence
of
nexus. Even assuming, arguendo, that the District
violated the Education Code (a matter we do not decide), it apparently did so without regard to
Gillotte's protected activity. Consistent violations
of
the Education Code before and after
Gillotte' s protected activity that allegedly demonstrated a lack
of
just cause or procedural
violations would not, by themselves, indicate improper motivation because
of
protected
activity. (See, e.g., Moreland Elementary School District (1982) PERB Decision No. 227,
pp. 14-15; Baker Valley Unified School District (2008) PERB Decision No. 1993, pp. 9-10
["[E]ven
if
the District's conduct violated the Education Code, it does not establish a
retaliatory motive because all teachers were treated the same, whether Association members or
not."]; California State University (San Francisco) (1986) PERB Decision No. 559-H, p. 7
13
Gillotte appears to be referring to the CBA between the District and NEA-J, which is
not a party to the present case.
17

["There was no evidence that the employer departed from established procedures or standards,
since, even though Chief Schorle's practices with regard to evaluations did not adhere to those
of
CSUSF, he applied his own standards consistently."].)
Gillotte cites to Novato, supra, PERB Decision No. 210 in support
of
his assertion that
the District's alleged maintenance
of
a site file concerning student complaints demonstrates the
District's anti-union animus. We disagree. There are significant factual distinctions between
this case and the facts in Novato. The Board found in Novato that a school district principal' s
"secret file" about an employee's union activity and job performance was evidence
of
an
unlawful motive (Id. at pp. 20-21.) The school district's unlawful motivation in transferring
charging party was inferred
by
the fact that the charging party had generally and consistently
received good evaluations. (Id. at p. 9.) The school district employer had compiled a secret
file only on the charging party, which contained information regarding union activities as well
as job performance. (Id. at p. 10.) The majority
of
the information was placed in the file only
after the charging party had engaged in protected activity, even though many
of
the parental
complaints, class drops, and transfers occurred months earlier. (Ibid.) The district usually kept
records
of
parental complaints so that it could later discuss the matter with the teacher
if
it was
at all serious. The district, however, did not investigate or discuss with the charging party the
merits
of
several
of
the parental and student complaints. (Ibid.) This was not done even
though many
of
the complaints dealt with aspects
of
teaching which the district had praised in
the charging party's evaluation, written very shortly before these complained-of events. (Ibid.)
In contrast with Novato, supra, PERB Decision No. 210, here there was no evidence
that the District treated employees not engaged in protected activity differently than it treated
Gillotte with respect to investigating and responding to student complaints. Nor was there any
evidence that the District treated Gillotte differently after it learned of his protected activities
18

by, for example, increasing its scrutiny of his classroom conduct, or starting a site file where
none had existed before. Gillotte was the subject of student complaints before he filed any
grievances or engaged in other protected conduct, and the District followed its procedures in
responding to those complaints, both before and after Gillotte engaged in protected activity.
The other differences between Novato, supra, PERB Decision No. 210 and the present
case are significant. Unlike in Novato: 	(1) Gillotte had not generally and consistently received
good evaluations; (2) there is no evidence that the District kept a secret file on Gillotte;
(3) there is no allegation that the District kept information regarding union activities in any of
Gillotte's files; (4) there is no evidence that the District handled or organized Gillotte's
personnel file differently from its handling of other employees; (5) there is no allegation that
the District began compiling complaints about Gillotte only after he engaged in protected
activity; (6) there is no evidence that the District failed to investigate any of the complaints
against Gillotte; and (7) none of the complaints against Gillotte deal with aspects of teaching
for which Gillotte had previously been ptaised.14
In Novato, supra, PERB Decision No. 210, most of the material contained in the secret
file had never been shown to or discussed with the charging party as is required under
Education Code section 44031. (Novato, p. 11.) Here, the District discussed student
complaints with Gillotte as part of its immediate investigation of those complaints.
The Board also found in Novato, supra, PERB Decision No. 210 that:
The fact that the District violated the above-mentioned Education
Code provision as well as its own official policy [fn. omitted] by
not notifying [charging party] of the majority of the complaints
filed against him when the District in fact claimed to have relied
on that information for his transfer is evidence of improper
motive. 	[Citation omitted.] Therefore, it is not inappropriate to
14 Although Trujillo awarded Gillotte with a certificate for being a "Champion of
Character" sometime in June 2010, the record is silent as to what aspects of Gillotte's teaching
this award recognized, if any.
19

conclude that the file was kept for the purpose
of
building a case
against [charging party].
(Novato, p. 12.)
This finding highlights two additional distinctions between Novato, supra, PERB
Decision No. 210 and the present case: (1) there is no evidence that the District violated its
own official policy in its handling
of
Gillotte's personnel file; and (2) there is no evidence that
the District kept any file on Gillotte solely for the purpose
of
building a case against him and
refused to disclose that information to him.
Regarding Gillotte's attendance at the Boykin hearing, the ALJ concluded that his
attendance was not protected, because there was insufficient evidence to establish that the
purpose for his attendance was to investigate possible contract violations or other policy
violations. Gillotte excepts to this finding, asserting that it was "self-evident that there were a
number
of
employees involved in assessing evidence and patterns
of
conduct
by
the
DISTRICT." (Charging Party's Statement
of
Exceptions, p. 3.) That there may have been
others at the Boykin hearing is irrelevant to the ALJ's finding that no evidence was presented
showing how or why Boykin's employment dispute bad anything to do with Gillotte's disputes
with the District. For reasons explained
by
the ALJ, we affirm her conclusion that Gillotte
failed to establish that his attendance at the Boykin hearing was protected activity.
The ALJ also concluded that Gillotte' s request for personal necessity leave under the
CBA was not protected because it was not a "logical continuation
of
group activity," citing
San Joaquin Delta, supra, PERB Decision No. 2091, p. 3, and relying on State
of
California
(Department
of
Forestry & Fire Protection) (2004) PERB Decision No. 1690-S and other
cases for the proposition that merely requesting a benefit provided by a CBA, as opposed to
seeking to enforce its provisions, is not protected conduct. Gillotte does not except to this
conclusion, so the issue is not before us, strictly speaking: However, we decline to affirm the
20

ALJ on this point, saving for another day full consideration of whether our precedent should be
overturned.
Despite PERB's earlier decisions, there is persuasive authority from the United-States
Supreme Court and the National Labor Relations Board (NLRB) calling into question these
earlier cases on which the ALJ relied. In NLRB v. City Disposal Systems, Inc. (1984)
465 U.S. 822, the Supreme Court approved of the NLRB's Interboro doctrine15 which held that
an individual's assertion of a right grounded in a CBA is recognized as "concerted activity"
and therefore protected by section 7 of the National Labor Relations Act (NLRA). See also
Rogers Corporation (2005) 344 NLRB 504, holding that good faith assertion of contractual
right to bid on a permanent job was protected conduct under the NLRA.
In any event, even if Gillotte's request for personal necessity leave was protected, such
a conclusion does not change the outcome of this case, as there is ample evidence that the
District met its burden of showing that it would have tenninated Gillotte's employment even in
the absence of his protected activity. Moreover, Gillotte has not shown a nexus between his
protected activity and the District's denial of his request for personal leave, and therefore has
not demonstrated a prima facie case of retaliation for this allegation.
We concur with the ALJ's conclusion that Gillotte's withdrawal of his personal leave
allegation in his second amended charge was valid, and that his motion to re-introduce this
charge by amending the complaint at the hearing was untimely, since the alleged conduct
occurred more than six months prior to the motion.
2. 	The District's Exceptions
The District takes issue with the ALJ' s legal conclusion that the circumstantial
evidence supported a finding that that the District harbored an illegal motive in dismissing
Interboro Contractors, Inc. (1966) 157 NLRB 1295 (Interboro).
21

Gillotte, i.e., a nexus between the protected conduct and the adverse action. In support
of
this
claim, the District asserts several exceptions to the
ALJ's
findings
of
fact.
Specifically, the District excepts to the
ALJ's
fmding that attaching student statements
to the January 2012 summary
of
allegations deviated from District practice and therefore
indicated that the District
had
decided to terminate Gillotte
by
January 2012.
The District also objects to the
ALJ's
finding that
it
offered inconsistent statements at
the hearing regarding Trujillo's involvement
in
the investigation
of
student complaints against
Gillotte. It also excepts to the
ALJ's
finding that Trujillo was biased against Gillotte.
We
address these exceptions below.
a.
	Elzig's Attachment
of
Student Complaints to Summary
of
Allegations
The
District excepts to the
ALJ's
finding that Elzig's attachment
of
student complaints
to the January 2012 summary
of
allegations demonstrates that the District predetermined the
outcome
of
its 2011 investigation
of
Gillotte. Contrary to the ALJ, we find that Elzig' s actions
do not constitute circumstantial evidence
of
causal nexus between Gillotte's protected activity
and the District's termination
of
his employment.
According to the ALJ, "Elzig admitted during cross examination that it is the
Districfs
policy and practice not to provide written student complaints to employees until the employee
is going to a dismissal hearing." (Proposed Dec., p. 48.)
The exact testimony is as follows:
Q 	And as a matter
of
fact, it's always been your policy and
practice to not share student complaints with a teacher until
they go to an OAH
16
hearing, correct?
A 	Correct.
16
We assume that in asking this question, Gillotte's counsel intended to refer to the
CPC hearing, which is administered through the office
of
administrative hearing or Office
of
Administrative Hearings (OAH).
22

(R.T. Vol. II, p. 137.)
From this premise, the ALJ extrapolates that Elzig would only attach student
complaints to a summary of allegations if the District had already decided at that point to
terminate Gillotte's employment. According to the ALJ, when Gillotte was presented with the
student statements, the investigation should have been ongoing, because Gillotte had not yet
been given an opportunity to respond to the January 26, 2011, summary of allegations. (Elzig
testified that she considers the employee's response as part of the District's investigation.)
Since it was the District's practice to attach student statements after the District initiates
dismissal proceedings, the ALJ concluded that the District had already determined to dismiss
Gillotte without hearing his response to the January 2012 summary of allegations. Thus, the
ALJ concluded that "the District appeared to be acting inconsistently with its investigation
practice by predetermining the outcome of the investigation before Gillotte had the opportunity
to respond to the most recent allegations against him." (Proposed Dec., p. 49.)
We do not share the ALJ' s inference of retaliatory intent from these facts. First, the
District benefitted Gillotte by giving him the student statements along with the summary of
allegations. An employer's conduct that departs from past investigatory practice, but which
inures to an employee's benefit, is not evidence of unlawful motivation. 17
7 See, e.g., Regents of the University of California (1987) PERB Decision No. 615-H,
pp. 20-21:
[W]e are unable to draw an inference that Yeary's protected
conduct was a motivating factor in any ofUC's actions during the
course of the two appeals. To begin with, two of the incidents
resulted in no harm to Yeary (indeed, one was to his benefit) and
thus cannot be the basis for an inference of unlawful motive.
(Emphasis added.)
23

Second, there is no basis to conclude that Gillotte was prevented from responding to
this summary of allegations. John Vigrass, the NEA-J president, submitted a response on
behalf of Gillotte on February 12, 2012. Presumably as a result, the District dropped five
allegations when it finally did prepare the statement of charges, which initiated the dismissal
proceedings.
Thus, the record does not support the inference that the District had made up its mind to
dismiss Gillotte at the time he was provided the summary of allegations with attached student
statements, regardless of whether or not it changed its investigation procedures. We conclude
that Elzig's above-described actions do not support a finding of nexus, especially in light of the
fact that Gillotte had previously complained in his 2009 response that the District unfairly
withheld the actual student statements from him.
b. 	Trujillo's Role In Investigating Allegations Against Gillotte
The ALJ concluded that Trujillo had assisted in investigating the allegations against
Gillotte in the December 2011 summary of allegations, and that the testimony of Elzig and
Pace regarding Trujillo's involvement in the investigation was contradictory. The ALJ also
concluded that Trujillo's May 27, 2010, e-mail stating he was "taking out a hit on" Gillotte
indicated bias, and that these facts indicate causal nexus between Gillotte's protected activity
and the District's adverse action.
We agree with the ALJ' s assessment that the inconsistency in the District's witness'
testimony regarding Trujillo's level of involvement in the 2011 investigation of student
allegations against Gillotte permit an inference of unlawful motivation. 18 ( Chula Vista
Elementary School District (2011) PERB Decision No. 2221, p. 19.)
However, we disagree with the ALJ's conclusion that there was "at least an
appearance of bias by Trujillo (namely, the admittedly inappropriate 'hit' comment)". A
manager's mere dislike of a charging party does not, in and of itself, demonstrate nexus.
24

Elzig's and Pace's testimony presented two different views of Trujillo's role in the
investigation of Gillotte. After the District Superintendent, Elliot Duchon (Duchon), reviewed
a student complaint against Gillotte in November 2011, Duchon e-mailed Elzig, in relevant
part: "Sounds perfect for Roberta [Pace] or Jay [Trujillo] to investigate." Elzig responded by
e-mail, in relevant part: "Actually, I was already second guessing who should investigate. No
seriously, Roberta [Pace] is more thorough than I am and will be a great witness. Jay [Trujillo]
is solid on this kind of thing also .... " (Charging Party Exh. 29.)
The evidence indicates that Pace conducted the 2011 investigation and presented her
findings and recommendations to Trujillo. Pace testified that Trujillo was "involved in the
investigation ... from day one ... until its end," and that Pace would give Trujillo regular
summaries of interviews to update Trujillo and have verbal discussion with Trujillo as well.
(Testimony of Pace, R.T. Vol. II, 97:24-98:17.) Pace understood that Trujillo conveyed the
information in Pace's reports to Elzig throughout the investigation. (Testimony of Pace, R.T.
Vol. II, 119:16-24.)
Elzig, on the other hand, testified that Trujillo was not an investigator in the 2011
investigation and had no input into the investigation of Gillotte or with respect to the District's
ultimate decision to move for Gillotte's termination "to any great extent." (Testimony of
Elzig, R.T. Vol. II, 53:16-25.)
Pace's version of events is supported by a November 16, 2011, e-mail from Trujillo to
Elzig, in which Trujillo states, in relevant part:
(Garden Grove Unified School District (2009) PERB Decision No. 2086 [hostile comments
that do not bear on protected activities or protected group are insufficient to demonstrate
animus].) From his e-mail, it is apparent that Trujillo harbored a bias against Gillotte, but not
because of Gillotte's protected activity. The bias instead stemmed from Trujillo's belief that
he was "bad for kids." Such bias does not violate BERA.
25

Roberta [Pace] and Monty [Owens] have interviewed several
random students, as well as students who have brought forth
concerns about Chris Gillotte. Roberta and I have discussed this
thoroughly, and our general summary and recommendations are
attached. No surprise ... several of the complaints and
recommendations are not new.
To this e-mail, Elzig replies, in relevant part:
Hi Jay and Roberta, Nice job on the investigation. We are giving
it to legal for review. I will call for further discussion soon.
These e-mails indicate that, Trujillo was involved in the evaluation of the students'
statements and recommending a course of action to Elzig. In sum, the ALJ' s conclusion that
the District offered inconsistent statements regarding Trujillo's involvement in the
investigation of Gillotte is supported by the evidence and will not be disturbed.
3. 	The District's Defense
For reasons described in the proposed decision, we agree with the ALJ that the District
met its burden to show that it had legitimate, non-discriminatory reasons for terminating
Gillotte's employment. We, therefore, dismiss the complaint and underlying unfair practice
charge.
ORDER
Based upon the foregoing findings of fact and conclusions of law, the complaint and
underlying unfair practice charge in Case No. LA-CE-5693-E are hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Huguenin and Banks joined in this Decision.
26

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CHRISTOPHER GILLOTTE,
Charging Party,
V.
JURUP A UNIFIED SCHOOL DISTRICT,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5693-E
PROPOSED DECISION
(10/31/2013)
Appearances: Richard D. Ackerman, Attorney, for Christopher Gillotte; Fagen, Friedman &
Fulfrost by Kerrie Taylor, Attorney, for Jurupa Unified School District.
Before Valerie Pike Racho, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a former public school employee alleges that his former employer
retaliated against him because
of
his exercise
of
protected conduct tmder the Educational
Employment Relations Act (EERA). 1 The employer denies any violation
of
the law.
Christopher Gillotte initiated this action on April 30, 2012 by filing an unfair practice
charge with the Public Employment Relations Board (PERB or Board) against the Jurupa ·
Unified School District (District). The charge alleged that the District violated BERA by
denying a request for personal necessity leave in October 2011. The District filed a position
statement in response to that allegation on May 16, 2012. A first amended charge was filed on
May 29, 2012, alleging that the District decided to terminate Gillotte's employment on May 7,
2012. A second amended charge was filed on September 7, 2012. The second amended
charge stated that "complainant re~tricts the scope
of
the instant complaint" to the District's
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.

decision to terminate Gillotte's employment on or about May
7,
2012. On November 13,
2012, the PERB Office
of
the General Counsel issued a complaint alleging that the District
terminated Gillotte's employment on May 7, 2012 because he filed the instant unfair practice
charge with PERB on April 30, 2012.
The District filed its answer to the complaint on December 3, 2012, denying that its
actions were retaliatory and raising various affirmative defenses. PERB conducted an informal
settlement conference with the parties on January 7, 2013, but the matter was not resolved. On
March 26, 2013, the District filed a motion in limine to limit issues, asserting that because
Gillotte had the opportunity to fully litigate the cause for his termination before the
Commission on Professional Competence (CPC), he should be collaterally estopped from
relitigating these claims before PERB. The District also requested that administrative notice
be taken
of
the five-day CPC hearing transcript and exhibits.
A formal hearing was held on April 8-9, 2013. The District's motion in limine and
request for administrative notice were denied by the administrative law judge (ALJ). Gillotte
moved to amend the complaint to re-allege that the District retaliated against him by denying
his request for a day
of
personal necessity leave in October 2011, because he requested to
attend a court hearing regarding the termination
of
another employee with whom he was
participating in collective grievance activity. The ALJ granted Gillotte's motion to amend the
complaint over the District's objection. The parties also stipulated to the admission in the
record of portions of the transcript from the CPC hearing, specifically, day one, pages 42-150,
2

and day two, pages 19-104.2 With the submission
of
the parties' final post-hearing briefs on
July 10, 2013, the record was closed and the case was submitted for decision.
FINDINGS OF FACT
The Parties
The District is a public school employer within the meaning ofEERA section
3540. l(k). Prior to his dismissal from the District, Gillotte was an employee within the
meaning
ofEERA
section 3540.10). Gillotte had been employed by the District as a high
school mathematics teacher since 2004. Teachers at the District are included in a bargaining
unit that
is
represented by the National Education Association-Jurupa (NEA-J). At all relevant
times, the District and NEA-J were parties to an operative collective bargaining agreement
(CBA).
The District's Policies on Investigation
of
Employee Misconduct and Progressive Discipline
When students complain about their teachers to District administrators, the District's
routine practice is to refer that complaint back to the teacher for resolution, unless the
complaint is
of
a "serious" nature, for example, sexual harassment or verbal or physical abuse.
There is no provision
of
the CBA that sets forth a procedure for notifying a teacher regarding
2 The CPC transcript excerpt was identified in the record as Respondent's exhibit TT.
It consists only
of
testimony by students. Initially, Charging Party objected to admitting the
students' testimony on the basis of hearsay, that it was not the best evidence, and on other
grounds. Charging Party withdrew these objections when the District clarified that it was
introduced to corroborate the thoroughness
of
its investigation regarding Gillotte's alleged
misconduct. Both parties and their respective counsel participated in the CPC hearing and had
an equal opportunity to examine and cross-examine witnesses. The students' testimony will be
considered herein as though it was produced during the course of the PERB hearing. Student
names will be identified in this proposed decision by initials only.
3

student complaints. 3 The District does not immediately move for dismissal
of
an employee
upon receipt
of
student or parent complaints, but rather, investigates them, especially to
determine whether there is a repeated issue that the District needs to manage.
Site administrators most typically investigate allegations
of
employee misconduct, but
sometimes administrators in the human resources department may conduct an investigation
if
the issue is serious. Tamara Elzig is the District assistant superintendent
of
personnel services.
When Elzig is involved in an investigation, she issues a written summary
of
allegations to aid
the employee in responding. 	Elzig considers any response by an employee, whether written or
verbal, to be part
of
the investigation.
If
an employee's response raises new information, then
the District may continue the investigation by conducting additional interviews. Otherwise,
the employee's response may conclude the investigation.
The District maintains that its disciplinary practices are intended to improve employee
performance, The first level
of
discipline involves a verbal interaction between a teacher and
administrator, where concerns are discussed, the teacher's explanations are taken into account,
and future performance expectations are expressed. The next level would involve the same
type
of
meeting, followed by a summary
of
meeting document to memorialize the discussion
and performance directives. From there, progressive discipline moves to more fornial
disciplinary documentation in the form
of
letters
of
concern and letters
of
reprimand. Under
the Education Code, a written notice
of
unprofessional conduct must be issued to the employee
3 Complaints by parents, however, are addressed at CBA article V, section 13, "Public
Complaint Procedure." A public complaint regarding a teacher's job perfonnance is to be
discussed with the teacher "as soon as possible." Meetings between the complainant, the
teacher, and the supervising administrator are held when deemed to be "appropriate." No
explanation for those appropriate circumstances is provided.
4

prior to pursuing termination.4 The District considers this to be the most serious disciplinary
memorandum. The highest level
of
progressive discipline before termination is an unpaid
suspension. The District "always" affords an employee with the opportunity to respond, either
verbally or in writing, to all forms
of
written disciplinary action.
Gillette's Employment Issues in 2007-2008
During the 2007-2008school year, Gillotte taught mathematics at Rubidoux High
School (Rubidoux). Laurel Fretz was the principal
of
Rubidoux at that time. According to
Gillette, Fretz was "unreasonable, dishonest, hostile, unable to keep even the most basic facts
straight about what was occurring on her campus or with her employees." Sometime early in
the 2007-2008 school year, Fretz began receiving complaints from Gillotte's colleagues about
his behavior toward staff and perceived undermining
of
the math department chair. 5 Fretz held
a meeting with Gillette over these issues on March 11, 2008, and she thereafter presented him
with two written summaries
of
meeting. 6 Fretz also informed Elzig about these events.
Gillotte's Employment Issues in 2008-2009
A. Fall 2008
On or around October 30, 2008, Fretz provided Elzig with a memorandum that outlined
several areas
of
concern regarding Gillotte' s performance, and included attached statements by
students recounting various negative encounters with Gillotte. Elzig prepared a summary
of
allegations dated November 12, 2008, and also met with Gillotte on or ar01md that date. The
summary
of
allegations summarized the student complaints. Gillotte responded to the
4 See Education Code section 4493 8(b )(1 ).
5 Fretz is now employed by another school district and did not testify.
6 The second summary of meeting was issued because Gillotte purportedly violated a
directive contained in the first summary of meeting.
5

allegations
by
letter dated November 21, 2008. Pertinent allegations, Gillotte's written
responses thereto, and his testimony regarding these allegations during the PERB hearing, are
summarized below.
1.
	The Backpack Incident
According to the District, on October 23, 2008, Gi11otte became angry when a male
student arrived late to class and made too much noise while unpacking his things. Gillotte then
required the student to exit and enter the classroom multiple times (as many as 45), and to pack
and unpack his belongings each time. A female student complained that the student's actions
were distracting to the class and interfering with her learning. Gillotte then reprimanded the
female student for complaining.
Gillotte maintained in his written response that several
of
his students acted in concert
that day to prevent him from teaching the class. Gillotte stated that he had "facetiously" asked
the class whether they needed to practice entering the classroom, and L.L. took him up on that
offer in lieu
of
working
on
the math assignment for the day. About three minutes into the
exercise, Gillotte reported that L.L. began yelling about a spider being in the doorway and then
"pandemonium" ensued in the classroom, which Gillotte had to bring under control. Gillotte
denied that any students complained during L.L.'s exercise, but admitted that there were some
who "barked out orders" at
him,
which resulted in him having to move a couple
of
students to
other parts
of
the classroom and to send one student to another room for the rest
of
the period.
Gillotte admitted in his testimony that he required L.L. to enter and exit the classroom
multiple times. When asked whether this was dismptive, Gillotte replied, "Not to me, not to
the class. I made sure he was able to maneuver through the classroom so that he was not
6

crossing in front
of
the students, and he did so, what he needed to do, quietly without being
disruptive."
2. 	Slamming a Student's Desk Into the Wall
The District alleged that in the fall
of
2008, Gillotte became angry with several students
for talking in class. He told one student to stand up, and then he forcefully slammed her desk
against the wall and yelled, "sit down!" The student was scared and humiliated.
In his written response, Gillotte identified the student in question
as
B.R. Gillotte
maintained that this allegation was replete with factual errors, and that the "only accurate
statement" was that he "moved a desk out
of
its row ... so it faced towards a wall." B.R. defied
Gillotte's directive, stating that she did not have
to
sit there, and then continued to disrupt the
class.
When asked during the hearing whether he "forcefully push[ ed] a student by the name
of [B.R.]'s desk against a wall and direct[ed] her to sit down in a loud voice," Gillotte
responded: 	"Yeah. I was moving a desk and it knocked into the wall pretty hard. And yes, I
did
tell her to sit down, and I was loud because I needed to have her hear me over her
shouting."
3. 	Scrubbing Toilets and Mowing Lawns
According to the District, in or around September 2008, Gillotte told two Hispanic
female sh1dents words to the effect that
if
they kept talking during class, they would be
"scrubbing his toilets and mowing his lawn for the rest
of
their lives." One
of
the student's
written statements over this incident stated, "Mr. Gillette puts our hopes down instead of
putting them up."
7

Gillotte asserted in his written response that the students' accounts were perhaps a
deliberate distortion
of
one
of
his "motivational" class lessons. Gillotte maintained that this
lesson was also used by other math teachers in the department, and involved describing
"menial unskilled labor," and then linking the necessity
of
a high school diploma to attain a
more rewarding skilled labor job. Gillette recalled that some students were immaturely
shouting out responses that implied he meant that those particular students would have such
menial jobs in the future. Gillette further noted:
	"I
recall the 'hopes' comment, but it was
made to reject the need to get a diploma to be successful in life (as in
'We
have to get a
diploma?!?'). It was another display
of
immaturity, which I turned back to the topic
of
why
earning a diploma is important."
4. 	Seating Students According to Their Grades
The District asserts that students informed administrators that Gillette selected their
seats in the classroom according to their grades, which the students found to be demeaning and
unfair. A student asked
if
she could be moved closer to the board because she could not see
well, and Gillette informed her that she could not move because she
sat
in the "F" section.
Another student reported that Gillette spent a lot oftime with "A" and "B" students, but did
not teach the other students.
Gillette asserted in his written response that students are not aware
of
each other's
grades unless they choose to discuss them. Regarding the amount
of
time spent with students,
Gillette stated, "I would point out that I am the class room instructor and not a personal tutor.
I do make it a point to circulate around the room, but the amount
of
time I spend with a student
8

depends on their needs." When asked during the hearing whether he made the "tutor"
comment, Gillotte replied, "Yes, I stated my job title."
Elzig testified to fully considering Gillotte's written response to the summary
of
allegations. Elzig noted that the students' statements describing the backpack incident differed
significantly from the way it was portrayed by Gillotte. When Elzig reviewed Gillotte's
response describing the student's comment regarding putting students' hopes down, Elzig
came to the conclusion that the student's opinion on this matter had only been expressed in the
written statement, and thus was not a comment made verbally in class. Elzig then began to
question Gillotte' s veracity, because he had responded
as
if
the comment was made in his ·
presence. Regarding the admission that Gillotte did not consider himself to be a personal tutor,
Elzig found his statement consistent with the students' accounts
of
his lack
of
attention to
poorly performing students. Elzig concluded that disciplinary action was warranted, and
issued a letter ofreprimand dated December 10, 2008. Gillotte was directed to treat all
students with courtesy and respect, and to develop classroom management skills that facilitated
learning rather than demeaning students.
B. 	Spring 2009
On or about May 5, 2009, Fretz provided Elzig with another memorandum outlining
continuing concerns regarding Gillotte with new student statements attached. The
memorandum also recounted Gillotte's verbal responses to the new concerns in a meeting held
. between Fretz and Gillotte where he had been accompanied by a union representative. After
reviewing this memorandum, Elzig concluded that Gillotte had not heeded the directives from
the December 2008 letter of reprimand. Elzig then prepared a notice of unprofessional conduct
dated June 2, 2009, which summarized the student complaints, and presented it to Gillotte in a
9

meeting on or around that date. This document contained all of the allegations previously
outlined in the letter of reprimand, as well as the new incidents reported to Elzig by Fretz. It
also included his most recent performance evaluation (from 2008), in which Gillotte was rated
overall as "meets standards."
Gillotte responded to the notice of unprofessional conduct through his legal counsel by
letter dated June 11, 2009. 7 Gillotte protested generally that the District was penalizing him
twice by repeating the previous allegations from the December 2008 letter of reprimand.
Pertinent new allegations, Gillotte's written responses thereto, and his testimony regarding
these allegations during the PERB hearing, are summarized below.
1. 	Rude and Condescending Comments to Senior Students
The District asserted that Gillotte expressed to his classes that seniors are insignificant
because they do not impact the results of California standardized tests, and that only
sophomores and juniors are going to make him look good because they take those tests.
Students also reported that Gillotte made generally rude comments about students' appearance,
such as, "is the reason you have a hood on because you didn't fix your makeup today?"
Gillotte denied generally in his written response that he ever said senior students were
insignificant or that he was rude or condescending to students. He asserted that his comment
over the hood was simply that the student could not wear a hood in class and was therefore
appropriate. In his testimony, Gillotte also denied ever telling seniors they do not matter.
2. 	The "Jerk" Comment
The District alleged that Gillotte refused to provide detailed explanations of math
7 Gillotte testified to reviewing this document before it was submitted on his behalf.

problems while teaching, and became angry and rude
if
students requested additional
information. Specifically, student L.B. asked Gillotte to teach the class how to do a particular
problem rather than simply writing the problem on the board with no explanation over the
mathematical process. At that point, Gillotte became angry, told L.B. to "stop being a jerk,"
and threatened
to
suspend her. L.B. also indicated that Gillette's behavior on that day was
typical for him. The District further asserted that Gillette admitted in a meeting with Fretz that
he had behaved in the manner as alleged.
Gillette's written response described this allegation as "particularly offensive" since
L.B. had a history
of
truancy and she actually passed the test over the material in question. He
reasoned that she could not have passed the test
if
his explanations were inadequate. Gillotte
denied that he had admitted to behaving in the manner alleged during the meeting with Fretz.
In his testimony over this issue, Gillette denied that he told L.B. to stop "being a jerk," rather,
what he said was words to the effect of, "you need to stop acting like a jerk in my classroom."
(Emphasis added.)
The June 2009 notice
of
unprofessional conduct directed Gillotte, among other things,
to avoid confrontations with students, and to refrain from mocking students or calling them
demeaning or offensive names. At the conclusion
of
the 2008-2009 school year, Gillette
voluntarily agreed to transfer from Rubidoux to Patriot High School (Patriot) for the following
year in order to get a fresh start.
Events in 2009-2010
A. Actions Taken Over Additional Complaints by Students
During the 2009-2010 school year, Roberta Pace was the assistant principal
of
curriculum and instruction at Patriot. Jay Trujillo was the principal of the school at that time.
11

One
of
Pace's responsi~ilities was to investigate allegations
of
employee misconduct. At the
time
of
the hearing in this matter, she had conducted approximately 100 employee
investigations for the District. Pace had occasion to investigate Gillotte in the fall
of
2009.
The 2009 investigation was initiated by two nearly simultaneous events: Tmjillo gave
Pace a written complaint from a student regarding Gillotte, and then another student and parent
visited the campus together to discuss their concerns about Gillotte with the administration.
Tmjillo then requested that Pace begin an investigation.8 Pace first interviewed the two
complaining students. She then obtained class rosters for Gillotte's classes, selecting students
at random (either every fifth or seventh student on the list), for additional interviews. Pace
asked the students a series
of
set questions, but would deviate as necessary based on the
responses given. She kept notes
of
pertinent information and also asked students to write
statements in their own words. Pace directed the students to be tmthful. Pace believed the
students' accounts, primarily because
of
the similarity in what had been reported by various
students. Pace provided a written summary
of
her investigation with the attached student
statements and presented it to Tmjillo. Elzig also received a copy
of
Pace's report.
Elzig prepared a summary
of
allegations based upon Pace's investigation dated
January 14, 2010. Within this document, Elzig provided a summary
of
the students' concerns.
Elzig also met with Gillotte on or around January 14, 2010. Gillotte responded to the summary
of
allegations through his legal counsel by letter dated Febmary 19, 2010.9 Pertinent
allegations, Gillotte's written responses thereto, and his testimony regarding these allegations
during the PERB hearing, are summarized below.
8 Tmjillo did not testify. 	·
9 Gillotte testified to reviewing this document before it was submitted on his behalf.
12

L 	General Concerns About Rudeness and Inattentiveness
Several students reported that Gillotte was frequently rude, sarcastic, and
condescending when he spoke to students, that he frequently "pick[ed] on" students, and that
he
did
not help students with their questions. Gillotte protested
in
his written response that
allegations appeared to be restated multiple times and that there were few specific allegations.
In his testimony, Gillotte pointed out that there were other teachers who, in his opinion, had
acted less professionally than he, and they had not been disciplined. No specific examples
were provided. 	Gillotte also testified to various incidents where teachers and administrators
had observed his classroom teaching and made positive comments. Documentation
of
these
incidents were introduced in the record.
2. 	"Super Senior" Comment and Efforts to Embarrass a Student Over Test Performance
RM.
reported that Gillotte called him a "super senior" as he was entering class one day
in early December 2009. A super senior was roughly defined in the record as a senior who had
been attending school for four or more years, but had not accrued enough credits to graduate.
Other students' statements also corroborated R.M.
's
account. In his written response, Gillotte
asserted that it was other students who actually called
RM.
a super senior, "since he's a senior
with approximately 30 credits; he's only passed six semesters." Gillotte testified that he never
labeled R.M. as a super senior.
The District alleged that Gillotte publicly asked a student whether he had passed the
California High School Exit Exam (CAHSEE). When the student said yes, Gillotte responded,
"no you didn't .. .Ijust wanted to know if you were going to be honest." Gillotte's written
response stated: "What is wrong with asking a student ifhe passed the exit exam? Where is
'
the violation of policy? The senior is in a class with freshman and complains because he is
13

being asked
if
he passed an exit exam?" During testimony, it was established that the student
in question was R.M. Gillotte admitted that he asked R.M. whether he had passed the
CAHSEE in front
of
the class, and that he knew before asking that the student had not actually
passed the examination.
3. 	Comments Regarding a Student's Plan to Serve in the Army
The District alleged that on December 14, 2009, Gillotte told a student that he would
never "be anything in life and no one would want him for a
job"
after the student shared his
plans to join the Army. Gillotte also said that the Army would not want, or trust, the student
and that he (Gillotte) would not trust the student with a gun. Gillotte did not address these
allegations in his written response. During the hearing, Gillotte denied making any
of
these
comments to the student
in
question.
After Elzig reviewed Gillotte' s response to the January 14, 20
IO
summary
of
allegations, she concluded that it was consistent with what she had observed from Gillotte over .
the years, because he: "didn't so much deny that the things had happened, but provided
rationalizations and excuses for why the things had happened." Elzig therefore decided to
issue another notice
of
unprofessional conduct dated March 24, 2010 based upon the incidents
included in the January 2010 summary
of
allegations. Gillotte was directed, among numerous
other things, to refrain from mocking students or calling them demeaning names, to provide
assistance to students who needed it, and not to discuss individual student's performance or
grades in front
of
other students. Gillotte was warned that failure to immediately correct the
performance deficiencies outlined therein may result in his dismissal from employment.
Gillotte's most recent performance evaluation (2008) was attached.
14

B. The Performance Evaluation and Other Actions by Trnjillo
Gillotte's performance was evaluated by Trnjillo for the 2009-2010 school year. The
evaluation was dated May 10, 2010. He was rated "meets criteria" in four categories, but
"unsatisfactory" in the categories
of
"creating and maintaining effective environments for
student learning," and "developing as a professional educator." His overall evaluation rating
was unsatisfactory. Trnjillo noted the District's ongoing concerns regarding Gillotte's
classroom management skills and behavior toward students.
On May 24, 2010, Trnjillo sent Elzig an e-mail message that stated in relevant part:
'Tm
taking a hit out on Chris Gillotte. He is bad for kids. I think I can get it done for free."
Elzig testified that Trnjillo's e-mail was "an unfortunate way
of
expressing his deep
disappointment" in Gillotte's teaching performance and that Trnjillo was counseled that the
"hit" language was inappropriate. Then, sometime in June 2010, Trnjillo awarded Gillotte
with a certificate for being a "Champion
of
Character." The circumstances that led to the
awarding
of
the certificate were not clearly described in the record, but it appeared that such an
award was unsolicited and meant to recognize some positive contribution by an employee.
C. 	Gillotte's Grievance and Group Activities
According to Gillotte, he filed approximately 15 grievances sometime in "late Spring
2010." Around that same time, some other employees, who were not explicitly identified in
the record, also filed numerous grievances. 10 In Gillotte's opinion, because so many
grievances were filed by multiple employees around the same time, the District should have
known that he was participating in group activity. Gillotte's written grievances were not
introduced into the record, and there was no detail provided over their substance. They were
10
The content of the other employee's grievances was also not described in the record.
15

not pursued to arbitration, because NEA-J did not participate.
11
Elzig admitted to
remembering that Gillotte filed
"a
series
of
grievances," but she recalled that they were filed
from August through September 2010. She was not questioned over any grievance filings
by
other employees that occurred around the same time. There is simply not enough information
in the record to determine precisely when Gillotte' s grievances were filed, but it can be
presumed that it was no later than September 2010.
Sometime near the end
of
the 2009-2010 school year, perhaps in June 2010, Gillotte
and several other District employees submitted an anonymous group complaint through an
attorney at a regular meeting
of
the District board
of
education. 12 The group complaint was
not introduqed into evidence, and there also was very little substantive description
of
it by
witnesses. Since the group complaint was anonymous, Gillotte was not identified as a
complainant, and Elzig credibly testified that she did not recognize that Gillotte's specific
employment issues were recounted in the complaint. Elzig further noted that at that time,
Gillote had been represented by a different attorney than the one who submitted the group
complaint. In addition to objecting to various District employment practices, the group
complaint also accused Elzig
of
sexually harassing employees and infidelity in her marriage.
Elzig felt compelled to dispute the very personal allegations
of
misconduct made
against her. The District superintendent, Elliot Duchon, gave Elzig permission to send an
11
According to Gillotte, an individual employee cannot pursue arbitration over a
grievance. The grievance procedure
of
the CBA at Article XXI, section 7, supports this
contention, as it says "the Association" may notify the District of its intent to submit a
grievance to arbitration, but is silent over an employee's ability to do so.
12
The group complaint wa~ sometimes referred to a "Master Grievance" in testimony
because it was purportedly entitled as such. However, there is no indication in the record that
this document was filed pursuant to the grievance procedure in the CBA. The precise date that
this doc1Uflent was submitted to the District is unclear from the record.
16

e-mail message to all employees for this purpose. On June 25, 2010, Elzig sent an e-mail to all
District employees denying any sexual misconduct or that she had been unfaithful to her
husband. She also noted that the group complaint originated from "a small number
of
employees who have employment issues," that had chosen to retain the attorney
of
a member
of
the board
of
education with whom she had previously had a public physical and verbal
altercation. Elzig denied that the allegations in the group complaint were true.
Later, at some point in time that was not clearly defined in the record, Gillotte and
some or all
of
the group
of
employees that had presented the group complaint to the District
filed a lawsuit together against the District. The court-filed documents were not introduced
into evidence, and the allegations in the lawsuit were not described in the record. According to
Gillotte, he was a named litigant, and at some point between August and October 2010, an
assistant principal at Patriot, Sarah Niemann, asked him whether he was "part
of
a class action
group that was suing the District." Gillotte told her that he was a part
of
that group. Niemann
did not testify. Gillotte believed that Niemann's question over the lawsuit coupled with Elzig's
e-mail to all employees responding to the group complaint showed that the District was aware
of
his participation in the group. Elzig was also sued personally through the group lawsuit and
she was aware that Gillotte was one
of
the litigants. It is concluded, based on the limited facts
in the record, that the group lawsuit was filed approximately between August and October
2010.
Events in 2010-2011
Gillotte voluntarily agreed to participate in the Peer Assistance and Review (PAR)
teacher mentorship program in 2010-2011 in an effort to remediate his performance issues.
The record showed that Gillotte's PAR participation was satisfactory, and that his teaching
17

mentor made generally positive observations. Elzig implied that the mentor did not feel
comfortable critiquing Gillotte; however, the mentor did not testify. Therefore, Elzig's
testimony on this point is uncorroborated hearsay that cannot be relied upon. 13
Events in 2011-2012
A. Request for Personal Necessity Leave
On October 26, 2011, Gillotte submitted a personal necessity leave request form to the
Patriot administration office requesting to take off one day of work on October 28, 2011. The
form requires the employee to attest that the leave is not requested for "purposes of personal
convenience, the extension of a holiday or vacation period, matters which reasonably can be
taken care of outside of work hours, or recreational activities." The form also notes that
employees should read the applicable CBA section regarding the use of personal necessity
leave before submitting the request, and that the District does not require the requesting
employee to state a reason for the request "unless the District has reason to believe this Section
has been abused."
CBA Article XI, section 11 restates the reasons listed on the form for which personal
necessity leave is prohibited. It also provides several examples of typical uses of the leave, but
notes that these are not intended to be "all inclusive," The examples provided include, among
others: death or serious illness of an employee's immediate family member; serious accidents
involving the employee's property; attendance at a funeral of a close friend; attendance at a
final oral or written examination required for completing an advanced degree; and a
Uncorroborated hearsay alone is not sufficient to establish a matter of fact. 	(PERB
Regulation 32176; County of Riverside (2009) PERB Decision No. 2090-M.) PERB
regulations are codified at California Code of Regulations, title 8, section 31001 et seq.
18

condition/circumstance that would result in "serious financial loss" without the immediate
attention
of
the employee. This section
of
the CBA also requires that the form be submitted to
the District personnel office and "whenever possible ... two (2) workdays in advance
of
the
leave." The CBA advises that "[f]ailure to secure advanced permission may result in the
absence being taken without compensation." 	These requests are subject to approval by Elzig.
After the leave form was presumably forwarded from the Patriot school site, the District
personnel office received Gillotte' s request on October 31, 2011.
Gillotte used his time off on October 28, 2011 to attend oral argument in a court
hearing regarding the dismissal from employment
of
a fellow District employee and group
complaint participant, Lenore Boykin. Gillotte also met with his attorney afterward. Gillotte
wanted to attend the hearing because he thought that Boykin had been treated similarly to him
by the District, specifically he believed that they both had items removed from their personnel
files, and he wanted to "get a better understanding
of
what was going on." Gillotte also
indicated that his attendance at the Boykin hearing would somehow help him evaluate his '
rights under the CBA. Other District employees purportedly attended the Boykin hearing, but
Gillotte could definitively recall who was there. 14
Elzig did not attend the hearing, but the
District's attorney was present, and she told Elzig that she saw Gillotte. The Boykin hearing
date had been calendared for over one month prior to Gillotte's submission
of
the personal
necessity leave request. Gillotte had requested personal necessity leave in the past and had
never been required to provide his reasons therefor.
14
Gillotte said regarding the other potential attendees at the hearing: "I wasn't the only
one there. I don't recall all
of
the parties, however. Leslie Braden, I believe, was there. And
I'm trying to recall ifErmine Nelson was there and or Dave and Pam Lukkarila. Those are the
only persons I recall." (Emphasis added.) It is concluded that this testimony is too vague to
establish that Gillotte had any clear recollection of who was present.
19

On November
1,
2011, Gina Chacon, an employee working under Elzig in the
personnel office, sent an e-mail message to Gillotte informing him that because the District
received the personal necessity leave request after the day
of
the absence, she needed him to
provide a reason for the absence in order to process the request. When Gillotte did not
respond, Chacon e-mailed him again on November 4, 2011. He did not respond to that e-mail
either. Consequently, Elzig e-mailed Gillotte on November
8,
2011, noting that they had tried
to reach him several times over the issue and he had failed to respond. Elzig stated that the
District had reason to believe that his leave request was in violation
of
the CBA, and thus his
absence would be without pay for that day. She invited Gillotte to contact her and discuss the
situation
if
desired.
Gillotte conceded that it was "possible" that he did not respond to the District's request
for information regarding his personal necessity leave day until he sent Elzig and Chacon an
e-mail message on November 16, 2011. Gillotte admitted in this e-mail message that he
attended a court hearing on October 28, 2011, and stated that his purpose in doing so was "to
obtain information for a case where I am the plaintiff." He also stated that he had a meeting
with his attorney after the hearing, and that this meeting could not be scheduled at times that
were convenient for him. Gillotte testified that he talked with every other employee who took
personal necessity leave that day, and he was the only one who was contacted by the District.
Gillotte did not identify these other employees, nor were they called as witnesses. Gillotte's
testimony on this point is uncorroborated hearsay and is therefore not relied upon.
By letter dated November 17, 2011, Elzig denied the personal necessity leave request,
citing applicable provisions in the CBA. She also noted that Gillotte's presence was not
required at the hearing since he was not a party to that matter, and also since school ends at
20

2:
10
p.m., a meeting with his attorney could easily have been scheduled after working hours.
Finally, Elzig noted that Gillotte failed to timely submit his request, because it was not
received in the personnel office 1mtil October 31, 2011, which was after his absence. Gillotte's
pay was docked for one day.
According to Gillotte, employees routinely use personal necessity leave for reasons like
extending their camping trips and Las Vegas vacations, and are not questioned by the District.
Elzig, however, testified that she regularly instmcts employees in the personnel office to
follow-up with employees to provide more information regarding requests for personal
necessity leave. Elzig previously denied a similar request from a different employee who
attended another employee's court hearing. Gillotte admitted to being aware that Elzig had
denied this employee's request. Elzig has also denied personal necessity leave requests for
reasons
of
employee convenience, like extending vacations, and where an employee took the
day
off
to get a massage to relieve stress.
B. New Student Complaints and the District's Decision to Terminate Employment
Trujillo was back as principal at Patriot during the start
of
the 2011-2012 school year,
and Pace was returned to her position
of
assistant principal
of
curriculum and instruction.
Later, in Febmary 2012, Pace again became interim principal.
In the fall
of
2011, students in Gillotte's integrated math and advanced placement (AP)
statistics classes raised concerns about Gillotte with administrators. The initial complaint from
an integrated math student was not clearly described in the record. J.S., an AP statistics
student, sent an e-mail to Pace complaining there was a teacher at Patriot that did not help
students with their questions and made belittling remarks to students. Pace shared this e-mail
with Tmjillo and Elzig and informed them that she would be interviewing the student to obtain
21

more information. When interviewed, J.S. identified the teacher as Gillotte. Shortly thereafter,
the mother
of
another AP statistics student, M.G., called Pace to complain about Gillotte. Pace
then followed up with M.G. directly. M.G. complained about difficulties students faced in
receiving help from Gillotte.
Pace again investigated
by
selecting random students from Gillotte's class rosters in AP
statistics and integrated math, and by asking set questions with deviations as necessary based
upon the responses received. Assistant principal Monte Owens also conducted student
interviews.
15
Pace reviewed the student statements collected by Owens, and his interview
notes, then summarized them into a memorandum combined with her own investigative
research. Pace was stmck by the level
of
consistency in the complaints made by students from
both
classes-chiefly
Gillotte's failure to help students with their questions and belittling and
demeaning comments toward students. For example, one student in integrated math told Pace
that Gillotte had told her or the class generally that she was "dumber than a box
of
rocks."
Pace provided the summary
of
investigation to Trujillo and Elzig. According to Elzig, Trujillo
did not participate "to any great extent" in the 2011 investigation, nor in the decision to
recommend Gillotte's termination. According to Pace, however, Trujillo was involved in the
investigation "from day one" by being regularly updated on its progress. Pace testified that she
told administrators that unless Gillotte was able to provide evidence to refute these allegations,
especially because
of
his history
of
discipline for similar misconduct, he should be terminated.
A meeting was scheduled for December 9, 2011 to discuss the investigation with
Gillotte. That meeting was cancelled and rescheduled several times at Gillotte's request
15
Owens did not testify.
22

because
of
the unavailability
of
his legal counsel. 16 During his direct examination, Gillotte
claimed that no administrator had informed him
by
the first week
of
December 2011 that there
were any "charges pending" against him. However, during cross-examination, Gillette
admitted that Pace sent him an e-mail message on or about November 8, 2011, informing him
that students had raised concerns about him, and that the District would be investigating and
meeting with him to discuss those issues. Gillotte was placed on paid administrative leave on
or about December 15, 2011, pending the completion
of
the investigation.
The meeting was finally held on January 26, 2012 with Gillotte's legal counsel
participating
by
telephone. Gillette was presented with a written summary
of
allegations with
attached student statements during the meeting. 17 In contrast to previous disciplinary
documents, this one also had actual student statements attached, rather than
just
summaries
of
their statements. Elzig testified that it is the District's policy and practice not to share student
complaints with employees until they are going to a dismissal hearing. Gillette did not
respond verbally during the meeting to these latest allegations, but NEA-J submitted a written
response dated February 17, 2012, authored
by
~ts
president, John Vigrass. 18 Gillotte admitted
to reviewing NEA-J's written response before it was submitted to the District, but denied that
it was submitted on his behalf. Elzig testified to considering that response as part
of
the
16
By December 2011, Gillotte was represented by a different attorney then the one who
responded on his behalf to the earlier disciplinary actions in 2009 and 2010.
17
This document was dated December 11, 2011.
18
Vigrass did not testify. No representative from NEA-J attended the meeting on
January 26, 2012, but the union was later provided with a copy of the allegations against
Gillotte.
23

investigation.
19
There is no information in the record to indicate that Gillotte or his counsel
informed the District that NEA-J was not responding on Gillotte's behalf. Notably, the
District's counsel wrote a letter to Gillotte's counsel on or about February 2, 2012, notifying
him that
if
Gillotte wished to submit a written response to the allegations, he needed to do so
by February 10, 2012. However, neither Gillotte nor his counsel provided a written response
to those allegations.
In brief, some
of
the allegations included in the December 2011 summary
of
allegations
(with attached statements by students) were that Gillotte: walked around the room calling his
students "idiots"
in
French; was sarcastic on a daily basis; told students that they have "reading
comprehension" problems; refused to help students with their questions over the material,
particularly with review
of
math concepts previously taught; required students to stand at the
board to work on problems for long periods oftime, without assistance, even after they
protested that they did not know how to solve the problem; called students in his integrated
math class stupid and "dumb as rocks"; and told his AP students that certain math concepts
were "cookbook" and/or "cookie cutter," meaning that anyone should be able to do
it
Elzig believed that the students' separate interviews yielding similar reports
of
Gillotte's misconduct lent credence to their stories. Elzig further believed that after several
years
of
progressive discipline, including two notices
of
unprofessional conduct under different
administrators at different schools, and Gillotte's continuing demeaning, inappropriate
behavior toward students, termination was appropriate.
19
NEA-J protested that Gillotte was vohmtarily participating in the PAR program, and
that he had not been given ample opportunity to make progress under that program. NEA-J
also contended that the number of complaining students was low compared to the total number
of students taught, and therefore they should not be given credence.
24

On or about May 7, 2012, Elzig submitted to the District board
of
education an
approximately 325-page statement
of
charges against Gillotte. Elzig inadvertently failed to
attach a signed verification
of
the charges at that time.
20
Gillotte was not informed beforehand
that management intended to submit the charges to board
of
education, nor was he provided
with a Skelly hearing.
21
The board
of
education voted to approve the intent to terminate
Gillotte's employment at its meeting on May 7, 2012. Thus, the board
of
education determined
to proceed with a termination hearing without Gillotte being afforded the opportunity to
address them on that issue. According to Elzig, prior notice to Gillotte
of
the board
of
education's action on May 7, 2012 was not required, because the board
of
education did not
rule on the charges that night, but rather, voted to issue them to Gillotte. Thereafter, Gillotte
would be given the opportunity to present his case before the CPC, and the board
of
education
would also be bound by the evidentiary findings
of
the CPC.
Gillette received the notice
of
charges and intent to proceed with his termination on or
about May
8,
2012. The charges included all
of
the allegations previously discussed herein
that were the subject
of
the prior disciplinary actions, as well as the most recent 2011
allegations.22 They also included statements by students spanning from 2008-2011.
23
Similar
20 Elzig later corrected her error on August 17, 2012 by signing a verification
of
the
charges against Gillotte and presenting it to the board
of
education. She also testified,
however, that when the charges were submitted to the board
of
education in May 2012, she
believed them to be trne and correct.
21
The term "Skelly hearing" refers to a pre-disciplinary hearing that complies with due
process requirements set forth in Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
According to Elzig, it is the District's practice to provide a Skelly hearing only when an
employee is charged with "immoral conduct," which did not apply in this circumstance.
22 The statement of charges also included other allegations of misconduct from the 2011
investigation as well as from various prior disciplinary actions that were not specifically
25

to the summaries
of
students' statements that had been previously provided, the students' full
names were redacted, but first and last initials were identified.
At some point in May 2012, Gillotte requested a copy
of
his site files and personnel
file, and he was told that he could come to the District office to review these under
supervision, and would be allowed to copy certain documents. Gillotte believed that he should
simply
be
furnished with copies
of
whatever documents the District had maintained regarding
his employment record. During the course
of
the hearing, Elzig admitted that school
administrators routinely maintain site files on employees that are separate from the official
personnel file kept in the District office. Elzig maintained that the reason for this is because it
would be unfortunate
if
minor incidents became a part
of
the employee's permanent file.
During investigations regarding allegations
of
employee misconduct, separate investigation
files are also kept, and student complaints,
if
any, are housed there. Gillotte received a copy
of
his personnel file at some point, but declined the invitation to review his site and investigation
files at the District office.
C. The CPC Hearing
A five-day evidentiary hearing was held before a three-person panel in February 2013
regarding whether there was cause for the District to terminate Gillotte. An ALJ from the state
Office
of
Administrative Hearings (OAR) presided over the hearing, and the District and
Gillotte each selected one panel member. Ten current or former students testified on behalf
of
the District. Two
of
these students were from Rubidoux, and had taken Gillotte's classes
addressed through testimony at the hearing. This proposed decision has omitted discussion
of
those other allegations.
23
It is not clear from the record whether these were all of the student statements
collected during this time period, or if it was a sampling of those statements.
26

during the 2008-2009 school year. All
of
the other students who testified were from Patriot.
Two
of
the Patriot students had Gillotte as a teacher in the 2009-2010 school year. The other
six Patriot students had Gillotte as a teacher during 2011; three students were from AP
statistics, and three were from integrated math. All
of
the students who testified had provided
statements and been interviewed during the course
of
the District's three different
investigations into Gillotte' s alleged misconduct during the 2008-2009, 2009-2010, and 2011-
2012 school years.
All but one student described Gillotte's behavior towards students generally as either
"rude," "sarcastic," "mean," "offensive," or some combination thereof. The student who did
not describe his classroom behavior in those terms confirmed that Gillotte had required a
student to enter and exit a classrooni multiple times during a class period, that he forcefully
pushed a student's desk against the wall, and that he made the comment about students
"scmbbing toilets" during the 2008-2009 school year. Another student who was in Gillotte's
class during 2008-2009 testified that Gillotte would ridicule female students over their
appearance when they wore hoods, asking
if
they did not have time to do their makeup that
day. This same student also confirmed that Gillotte said senior students did not matter because
they do not take the standardized tests.
A student from Gillotte's class in the 2009-2010 school year testified that Gillotte
called R.M. a super senior and embarrassed him over his failure to pass the CAHSEE. E.P.,
another student from 2009-2010, testified that when he told Gillotte
of
his plan to enlist in the
Army, Gillotte said the Anny would not want him or tmst him. Two of the integrated math
students who testified confirmed that he told the class generally and/or particular students that
27

they were "dumb as rocks," or words to that effect. These two students also testified that
Gillotte said something to the effect that a horse could sit in class and be smarter than them.
Eight students testified that GiHotte frequently would not help students with their
questions, instead telling them that they should look in the book or figure it out on their own.
Several students testified that Gillotte would tell students to "stop whining." J.S. testified and
confirmed that Gillotte called his AP students "idiots" in French. J .S. and another AP student
stated that Gillotte would ridicule the students in his lower-level math classes for not being
able to figure out simple problems. Two AP students confirmed that Gillotte would make
comments that certain math concepts were "cookbook," meaning simple, and berating them for
not understanding those concepts. At least two AP students also testified that Gillotte
commented that they must have a reading comprehension problem. A student from integrated
math and another from AP statistics testified that Gillotte would require students to stay at the
board for extended periods, without help, even when they did not know how to solve a
problem.
The CPC unanimously upheld the District's intent to terminate Gillotte's employment
in a written decision dated March 19, 2013. 24 Thereafter, on March 20, 2013, the District
board
of
education voted to terminate his employment.
24
At the time
of
the PERB hearing, Gillotte had appealed this decision and no court
of
competent jurisdiction had yet rendered a decision on that appeal. Repeatedly during the
hearing, Respondent objected to the introduction
of
certain lines
of
testimony on the grounds
that those factual issues had been litigated and ruled upon by the CPC. In State
of
California
(Department
of
Youth Authority) (1995) PERB Decision No. 1080-S, the Board found that one
requirement for barring the relitigation of issues that had been litigated in other forums is that
the previous proceeding resulted in a final judgment on the merits. As there is no information
in the record that the CPC decision has become final, PERB may not rely on the CPC's factual
findings.
28

ISSUES
1.
	Was the amendment to the complaint granted during the hearing timely?
2. 	Did the District deny Gillotte's request for personal necessity leave, and/or decide
to tem1inate his employment, because
of
his BERA-protected conduct?
CONCLUSIONS OF LAW
1.
	Timeliness
of
the Amendment to the Complaint
EERA section 3541.5(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 limitation 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.)
The statute
of
limitations for new allegations contained in an amended charge begins to
·run based upon the filing date
of
the amended charge (Sacramento City Teachers Association
(Marsh) (2001) PERB 'Decision No. 1458) unless the new allegations in the amended charge
relate back to the original allegations in the initial charge. (Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959 (Franz).) The "relation back" doctrine
allows for an exception to the limitations period
if
the amended charge is sufficiently
connected to the original charge; it "does not apply, however, when the amended charge raises
new factual allegations, separate conduct or acts not sufficiently related to or raised by the
initial charge." (Id., proposed decision, p. 18.) An amended charge relates back to the initial
29

charge only when it clarifies facts originally alleged in the initial charge
or
adds a new legal
theory based on facts originally alleged in the initial charge. (Ibid.)
In
this instance, the allegation over the denial
of
personal necessity leave was raised in
the original unfair practice charge filed by Gillotte on April 30, 2012, and was reiterated in the
first amended charge filed on May 29, 2012. In Gillette's second amended charge filed on
September 7, 2012, he stated at paragraph one: "Complainant hereby realleges and
incorporates all prior allegations,factual
in
nature, from any previous complaint filed herein."
(Emphasis added.) Gillotte then continued at paragraph two: "Complainant restricts the scope
of
the instant complaint to the unlawful retaliatory action taken against him ... on or about
May 7,.2012 .... "25 (Emphasis added.) Later, at paragraph eight
of
the second amended
charge, Gillotte stated: "Complainant is not pursuing any further prosecution
of
the
allegations concerning the 'personal necessity leave' from the prior complaint (without
prejudice)." (Emphasis added.)
In
the next paragraph (nine) Gillotte noted,
"I
seek to have
PERB prosecute the claims relating to the District's retaliatory action (i.e., dismissal
of
Complainant) within mere days after the District's receipt [of the original unfair practice
charge]." Thereafter, on November 13, 2012, the PERB Office
of
the General Counsel issued
a complaint that was limited to the District's actions on May 7, 2012.
Gillotte's request to amend the complaint during the hearing was granted over the
District's objection. It was concluded that the District would not suffer prejudice, since it had
addressed the denial
of
personal necessity leave in its initial position statement. 26 There was
25
As noted previously, May 7, 2012 was the date that the District board of education
voted to issue the statement of charges and intent to terminate Gillotte's employment.
26 PERB Regulation 32648 provides that during hearing, a charging party may move to
amend the complaint by oral motion on the record.	
"If
the Board agent determines that
30

some confusion during the hearing regarding why the allegation was omitted from the
complaint, as it had not been dismissed by PERB. Neither party appeared to recall the above-
discussed language in the second amended charge. The District was also offered additional
days
of
hearing,
if
needed, to defend against the amended allegation. Ultimately, the District
did not need to avail itself
of
that opportunity and the hearing was completed on schedule.
The allegation over the denial
of
personal necessity leave is factually unrelated to and
distinct from the alleged violations
ofEERA
occurring on May 7, 2012, which are the only
subjects
of
the PERB complaint. The District's final decision over the denial
of
personal
necessity leave occurred on or around November 17, 2011. Because the facts underlying this
allegation occurred more than six months before they were amended into the PERB complaint
on April 8, 2013, the allegation is untimely unless it can be determined that the amendment
either clarifies facts originally alleged in the initial charge or adds a new legal theory based on
facts originally alleged in the initial charge. (Franz, supra, PERB Decision No. 1959.)
Under the unique facts
of
this case, the "initial charge" has become what PERB issued
its complaint
upon-namely,
the allegations from the first and second amended charges
regarding the District's actions on May 7, 2012. This is so, because nothing from the charge as
originally filed was actually included in the PERB complaint. Thus, the newly amended
allegation may be found to relate back to the "initial charge" only
if
it can be concluded that
Gillotte did not withdraw this allegation before the complaint issued. This is so, because the
facts underlying the allegation over the denial
of
personal necessity leave are completely
distinct from those underlying the complaint. Thus, the amendment could neither clarify facts
amendment of the charge and complaint is appropriate, the Board agent shall permit an
amendment." (Ibid.) The possibility of prejudice to the respondent is to be considered when
detennining appropriateness of the amendment.
31

originally alleged, nor add a new legal theory based on facts originally alleged, unless those
facts were still in the charge. (Trustees
of
the California State University (2010) PERB
Decision No. 2151-H (CSU) [where the amendment is based on facts not included in the initial
charge, the relation back doctrine does not apply to excuse the late filing].)
In County
of
Santa Barbara (2012) PERB Decision No. 2279-M, a Board agent
partially dismissed allegations regarding changed job duties and "increased scrutiny." After
the issuance
of
a warning letter, the Board agent considered those allegations to either be
withdrawn by the charging party's failure to specifically incorporate them into the amended
charge, or dismissed under the rationale
of
the warning letter. The Board disagreed, finding
that although the amended charge contained new allegations that did not refer to those in the
original charge, the charging party had also provided additional factual details in the amended
charge regarding those original allegations. The Board concluded, therefore, that the charging
party did not actually mean to withdraw those allegations, nor did the warning letter provide an
"adequate basis for dismissal," and reversed the partial dismissal
of
those allegations. (Id. at p.
15.)
Here, it is not entirely clear whether the PERB Office
of
the General Counsel
considered Gillotte' s statements at paragraphs two and eight of the second amended charge to
be a withdrawal
of
the allegation over the denial
of
personal necessity leave.27 However, it is
reasonable to conclude that PERB considered the allegation to be withdrawn, because the
27 There was no notice of partial withdrawal issued to the parties after receipt
of
the
second amended charge. Issuing a notice
of
withdrawal or partial withdrawal is a customary
practice by PERB, but that practice is not addressed in PERB regulations. Thus, the omission
of that step in this case does not preclude a finding that the allegati011 was withdrawn from the
charge.
32

complaint is limited
in
scope to the District's intent to terminate Gillette's employment on
May
7, 2012. PERB Regulation 32625, "Withdrawal
of
Charge," requires
in
relevant part:
Any
request for withdrawal
of
the charge shall be
in
writing,
signed
by
the charging party or its agent, and state whether the
party desires the withdrawal to
be
with or without prejudice.
Request for withdrawal
of
the charge before complaint has issued
shall be granted.
(Emphasis added.)
If
Gillotte had included only paragraphs one and two
in
the second amended charge, it
would
be
logical to assume that while
he
was realleging all previous allegations from the
original and first amended charge, the second amended charge was focused
on
the District's
actions regarding his termination. In that case,
it
would not automatically follow that Gillotte
intended to withdraw the allegation over the denial
of
personal necessity leave. However, with
the addition
of
paragraphs eight and nine, that is the inescapable conclusion. Gillotte's
language in paragraph eight
of
the second amended charge complies with all
of
the pertinent
requirements
of
PERB Regulation 32625 for withdrawal
of
charges
of
unfair practices, because
it was in writing, signed
by
Gillotte, and stated that he desired the withdrawal
of
the allegation
to be without prejudice. Furthermore, the next paragraph (nine) clarified precisely what
Gillotte did not want to be withdrawn from the charge. Thus, for whatever reason, it is clear
that Gillotte intended to abandon his original allegation and withdraw it from the charge at that
time. Because his request was made
prior
to the issuance
of
a complaint, it shall be granted
by
PERB under the requirements
of
PERB Regulation 32625.
Gillotte, unlike the charging party in County
of
Santa Barbara, supra, PERB Decision
No. 2279-M, expressed a clear intent to withdraw the personal necessity leave allegation from
the charge and did not provide any additional factual details about the original allegation in his
33

second amended charge. Accordingly, it is concluded that the allegation was withdrawn
on
September 7, 2012. Despite the withdrawal being "without prejudice," at that time, the
limitation period for that allegation
had
already run. This means that the allegation could not
timely
be
re-filed. Thus, when Gillette brought his motion to amend that allegation into the
complaint several months later
on
April 8, 2013, it was untimely. Because it is found that the
personal necessity leave allegation was withdrawn, the amendment
of
the complaint to include
that allegation does not relate back to facts in the initial charge, and the relation back doctrine
does not excuse the untimely filing. (CSU, supra, PERB Decision No. 2151-H.) The
allegation over the denial
of
personal necessity leave can be dismissed for this reason alone.
However, for the purpose
of
discussion, assuming it was timely, the merits
of
the claim will be
addressed below.
2. 	Retaliation Claims
Gillette alleges retaliation for BERA-protected activity regarding both the denial
of
personal necessity leave and the District's decision to terminate his employment. A charging
party must prove the allegations in a complaint by a preponderance
of
the evidence.
(California State University (San Francisco) (1986) PERB Decision No. 559-H; PERB
Regulation 32178.) Preponderance
of
the evidence has been defined
by
the courts as
"evidence that has more convincing force than that opposed to it." (Glage
v.
Hawes Firearm$
Co. (1990) 226 Cal.App.3d 314, 324.)
To demonstrate a prima facie case
of
employer discrimination or retaliation against an
employee in violation
of
EERA section 3543.S(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
34

took the action because
of
the exercise
of
those rights. (Novato Unified School District (1982)
PERB Decision No. 210, pp. 6-8 (Novato).)
Regarding the third element
of
the test set forth above in Novato, supra, PERB
Decision No. 210, the District does not dispute
in
its post-hearing briefs that tennination from
employment is an adverse action. 28 (See, e.g., City & County
of
San Francisco (2011) PERB
Decision No. 2207-M.) The District also does not dispute that Gillette's pay was docked for
one day due to the denial
of
personal necessity leave, and that such action is considered
adverse. (See Chula Vista Elementary School District (2011) PERB Decision No. 2221 [loss
of
pay is adverse]; Rio Hondo Community College District (1982) PERB Decision No. 226
[even the denial
of
an lmpaid leave request may be adverse].) Thus, the adverse action element
for both allegations is established and requires no further discussion. The District's arguments
against the existence of a prima facie case focused on the Novato elements
of
protected
activity, the employer's knowledge thereof, and the nexus between protected conduct and
adverse actions. A general discussion
of
protected activity and employer knowledge will be
followed by separate discussions regarding nexus for each allegation.
A 	Protected Conduct With the District's Knowledge
The threshold requirements to establish a prima facie case of
unlawful retaliation are
evidence that the employee engaged in activities protected under EERA and that the employer
was aware
of
those activities. (Palo Verde Unified School District (1988) PERB Decision
No. 689.) EERA section 3543(a) protects employees' right to form, join, and participate in the
28
It is noted that the PERB complaint alleges that the District terminated Gillette's
employment on or about May 7, 2012. However, the record demonstrated that the District
issued its written intent to terminate Gillette's employment on that date, but that his job was
not actually terminated until March 2013, after the CPC fmmd adequate cause to justify the
District's decision.
35

activities
of
employee organizations. That section also protects employees' right to represent
themselves individually before their employer. (Ibid.)
To demonstrate the knowledge element
of
a prima facie case, at least one
of
the
individuals responsible for taking the adverse action must be aware
of
the protected conduct.
(Oakland Unified School District (2009) PERB Decision No. 2061 (Oakland).) In other
words, the issue is whether "the individual(s) who made the ultimate decision to take adverse
action against the employee had
such
knowledge." (Sacramento City Unified School District
(2010) PERB Decision No. 2129, p. 7, citing City
of
Modesto (2008) PERB Decision
No. 1994-M.)
1.
	Representation by Union Representatives, Filing Grievances, and Filing an Unfair
Practice Charge
The record showed that Gillotte was represented by NEA-J in a meeting with
administrators over potential disciplinary action sometime in May 2009. Documentary
evidence showed that Elzig was aware
of
this union representation. NEA-J also provided a
written response regarding the District's allegations against Gillotte in February 2012, and
Elzig was aware
ofNEA-J's
involvement in this regard. 29 No later than September 2010,
Gillotte filed several grievances utilizing the CBA grievance provisions. The substance
of
the
grievances were not described in the record. Elzig, however, admitted to being aware
of
these
grievances.
29
Despite Gillotte's protestations that the NEA-J's response was not provided on his
behalf, the substance of it was disputing the District's allegations against Gillotte, and no one
informed Elzig that the response was not made on his behalf. Elzig thus considered it as part
of the 2011 investigation, which was logical, given the substance of the response. It is
concluded that NEA-J responded for Gillotte's benefit.
36

None
of
the above-described instances
of
protected conduct were included in the PERB
complaint, even as amended. It is well-established that seeking help from a union regarding
employment concerns is protected activity. (County
of
Riverside (2011) PERB Decision
No. 2184-M.) Utilizing the grievance procedure
of
the CBA, with or without the assistance
of
the exclusive representative, is protected activity. (Sacramento City Unified School District,
supra, PERB Decision No. 2129; Healdsburg Union High School District (1997) PERB
Decision No. 1185 (Healdsburg).) These facts relate to matters in the PERB complaint and
were fully litigated; thus, it
is
appropriate to consider them. (Lake Elsinore Unified School
District (2012) PERB Decision No. 2241.) Gillotte's protected conduct and the District's
knowledge thereof is adequately shown regarding his CBA grievance activity and NEA-J
representation.
The PERB complaint specifically alleged that Gillotte exercised protected rights under
EERA by filing an unfair practice charge with PERB on April 30, 2012. The Board has found
that filing unfair practice charges with PERB and participating in the Board's adjudication
processes are acts protected by EERA. (Healdsburg, supra, PERB Decision No. 1185;
Los Angeles Unified School District (1992) PERB Decision No. 957.) Elzig admitted to being
aware
of
the unfair practice charge at least by May 7, 2012,30 but she did not inform the
District board
of
education that it had been filed at that time. Elzig drafted the statement
of
charges and notice
of
intent to dismiss from employment. Thus, it is adequately demonstrated
that the individual primarily responsible for talcing the adverse action was aware
of
this
protected conduct. (Oakland, supra, PERB Decision No. 2061.)
30
The District did not submit its initial position statement in response to the charge
until May 16, 2012.
37

2. 	Attendance at the Boykin Hearing
The complaint as amended during the hearing alleged that Gillotte exercised rights
under EERA by requesting a personal necessity leave day to attend the Boykin hearing because
it involved issues common to him. The only common issue that was described in detail by
Gillotte was his belief that he and Boykin both had items removed from their personnel files.
Boykin testified at the PERE hearing, but she was not questioned about the removal
of
documents from her personnel file, over any details
of
her employment history with the
District, or about her participation in any concerted employment activities with Gillette. It is
also not clear from the record what sort
of
position Boykin held with the District during her
employment. Gillotte testified that he thought that attending the hearing would help him attain
a better understanding
of
"what was going on" regarding District personnel practices and
evaluate his rights under the
CBA
He did not explain what CBA provisions,
if
any, he
believed to be at issue in the Boykin hearing. Gillotte also informed Elzig in writing that his
purpose in requesting leave to attend the hearing was "to obtain information for a case where I
am the plaintiff"
While investigating possible contract violations for the purpose of pursuing grievances
may constitute protected activity (State
of
California (Department
of
Corrections &
Rehabilitation) (2012) PERB Decision No. 2285-S), here there is simply not enough
information in the record to conclude that was Gillotte's purpose in attending the Boykin
hearing. There was no evidence that any District administrator was to be testifying that day
about the CBA between NEA-J and the District. 31
Elzig did not attend the hearing, so it was
31
The record indicates that the purpose of the hearing was for oral argument rather than
witness testimony.
38

not possible for her to testify about personnel practices. Furthermore, as stated above, it is not
clear from this record
if
Boykin was a certificated employee that would be subject to the
NEA-J agreement, as she was not questioned about her former employment status.
Concerted activities
of
employees that are related to terms and conditions
of
employment are generally protected. (Santa Clara Unified School District (1985) PERB
Decision No. 500.) However, Boykin was not questioned about common employment issues,
if
any, that she shared with Gillotte, or about any concerted activities on their part. Gillotte
testified that other employees also attended the Boykin hearing, but as concluded above, his
testimony regarding their attendance was too vague to ascertain which employees even
attended. None
of
these employees testified. There is a dearth
of
information in the record
about collective activities in which employees engaged as a result
of
attending the Boykin
hearing. Therefore, Gillotte has not met his burden in demonstrating that his attendance at the
Boykin hearing was protected pursuant to his right to gather information or participate in
collective action.
The amended complaint also implies that requesting personal necessity leave under the
CBA is itself a protected right. As stated above, EERA section 3543( a) includes a right
of
self-
representation. However, that right is limited. To qualify as protected self-representation, the
individual activity must be "a logical continuation
of
group activity." (San Joaquin Delta
Community College District (2010) PERB Decision No. 2091, p. 3.) However, an individual's
activity made solely for his or her own benefit is not protected.32 (Ibid.)
32
Although not specifically alleged to be protected conduct, it is noted that Gillotte' s
individual responses, either on his own behalf or through legal counsel, regarding various
proposed disciplinary actions does not qualify as protected conduct because these were taken
for his own individual benefit and were not a logical continuation of group activity. This is
distinguished from an employee's request for an exclusive representative to assist in individual
39

Using a negotiated dispute resolution process or complaint procedure to enforce
provisions
of
a CBA is protected. (Jurupa Unified School District (2012) PERB Decision
No. 2283 (Jurupa); Los Angeles Unified School District (2005) PERB Decision No. 1787;
Oakdale Union Elementary School District (1998) PERB Decision No. 1246.) However,
merely requesting to exercise an option available under the CBA is not. In State
of
California
(Department
of
Forestry & Fire Protection) (2004) PERB Decision No. 1690-S (Department
of
Forestry), the Board found that "case law does not support a finding that a request for a
transfer constitutes protected conduct any more than, for example, would a request by an
employee for a vacation day, or an employee's application for a promotion, or a request to
work overtime." (Id. at dismissal letter, p. 3; see also State
of
California (Department
of
Corrections & Rehabilitation) (2010) PERB Decision No. 2118-S [individual's overtime
request was not protected]; State
of
California (Department
of
Corrections & Rehabilitation)
(2008) PERB Decision No. 1961-S [bid for job assignment under CBA not protected]; Marin
County Law Library (2004) PERB Decision No. 1655-M [request for schedule change solely
for employee's own benefit was not protected].)
Here, Gillotte has not demonstrated that his request for personal necessity leave under
the CBA was a logical extension
of
group activity. Rather, the record demonstrates that
Gillotte was merely attempting to exercise a leave provision under the CBA for his own
benefit. Notably, Gillette informed Elzig that his purpose for attending the hearing was to
gather infonnation for a case in which he was a plaintiff. There was no reference to any
collective action in his stated reason. Nor was Gillotte utilizing a negotiated procedure to
employment concerns, as this activity has an established history of being fOlmd protected.
(See County
of
Riverside, supra, PERE Decision No. 2184-M; County
of
Riverside, supra,
PERB Decision No. 2090-M.)
40

enforce a CBA provision. Rather, Gillotte was merely exercising an option available under the
CBA for his individual benefit, similar to a request for a vacation day or taking sick leave.
(Department
of
Forestry,
sipra,
PERB Decision No. 1690-S.) Thus, his request for personal
necessity leave was not an action protected by EERA.
3. 	2010 Group Complaint and Litigation Activity
As previously noted, the anonymous group complaint submitted through an attorney in
or around June 2010 was not received in evidence.33 The substance
of
the complaint was also
not described in any detail by Gillotte or other witnesses, other than a vague reference to
"employment concerns." Gillotte did not assert that his own employment circumstances were
· actually described
in
the group complaint. Elzig credibly testified that she did not associate
Gillotte with the group complaint at the time it was submitted. Similarly, Gillotte did not seek
to admit in the record the lawsuit that was filed by a group
of
employees sometime in the fall
of
2010. The substance
of
that lawsuit was not described at all by Gillotte or other witnesses.
Elzig admitted to knowing that Gillotte was a litigant in the lawsuit.
In general, group complaints about employment concerns are protected under EERA.
(.Jurupa, supra, PERB Decision No. 2283; California Teachers Assn.
v.
Public Employment
Relations Bd. (2009) 169 Cal.App.4th 1076, 1091; Mt. San Antonio Community College
District (1982) PERB Decision No. 224.) This rationale would also apply to a lawsuit filed by
a group
of
employees,
if
that lawsuit addressed common employment concerns. While it
seems probable that the June 2010 group complaint was
of
a character that would qualify for
protected status, there is simply not enough information in the record to be able to reach that
conclusion. Furthermore, even
if
it was protected, Gillotte has not met his burden in
33
The ALJ inquired of Gillotte's counsel whether he would seek to admit the
document. The counsel replied: "It may very-yes," but then never sought its admission.
41

demonstrating that Elzig or another administrator was aware
of
his involvement. Similarly,
although the knowledge element is shown for the group lawsuit, there is a fatal lack
of
information about its content. It is thus impossible from the current record to conclude that the
lawsuit was protected under EERA.
In conclusion, Gillotte has demonstrated that
he
engaged in protected conduct with the
District's knowledge
by
having NEA-J represent him during a meeting in May 2009 and
respond to proposed disciplinary action in February 2012. Gillotte has also demonstrated
protected activity
of
which the District was aware by filing several grievances around
September 2010, and an unfair practice charge with PERB in April 2012. However, Gillotte
has failed to meet his burden in demonstrating that his group activities
in
2010
or
request for
personal necessity leave in 2011 were protected under EERA. Therefore, this proposed
decision will not further consider whether the District's actions were in retaliation for group
activities or because
of
Gillotte's request to take personal necessity leave.
B. Nexus
A critical element
of
a prima facie case is whether there is a causal connection,
or
nexus, between the adverse actions and the protected activity. The existence or absence
of
nexus is usually established circumstantially after considering the record as a whole.
(San Bernardino City Unified School District (2012) PERB Decision No. 2278; Moreland
Elementary School District (1982) PERB Decision No. 227 (Moreland).) The timing between
protected activity and adverse action is an important circumstantial factor to consider in
determining whether evidence
of
unlawful motivation is present. (North Sacramento School
District (1982) PERB Decision No. 264.) However, "'the closeness in time (or lack thereof)
between the protected activity and the adverse action goes to the strength of the inference
of
42

unlawful motive to be drawn and is not determinative in itself."' (California Teachers
Association, Solano Community College Chapter, CTAINEA (Tsai) (2010) PERB Decision No.
2096,
p.
11, quoting Metropolitan Water District
of
Southern Calffornia (2009) PERB
Decision No. 2066-M.)
1.
	Denial
of
Personal Necessity Leave
The only instances
of
protected activity that preceded the District's denial
of
Gillotte' s
personal necessity leave request was his representation by NEA-J in a meeting with
administrators in May 2009, and filing several grievances in September 2010.34 This protected
activity occurred between one and two years before the adverse action. PERB has found such
gaps in time to be too attenuated to support an inference
of
unlawful motivation. (Garden
Grove Unified School District (2009) PERB Decision No. 2086 [lapse
of
two years between
protected activity and alleged adverse action was insufficient to establish timing element
of
nexus]; Los Angeles Unified School District (1998) PERB Decision No. 1300 [gap
of
five or
six months between protected activity and adverse action is not close enough in time to show
nexus].) Thus, the timing
of
Gillotte's protected activity and the District's adverse action does
not support finding nexus. Because timing alone is not determinative, however, other
circumstantial evidence may be examined. (Moreland, supra, PERB Decision No. 227.)
Gillotte alleged that he had never before been questioned over or denied the use
of
personal necessity leave, and that he was the only person questioned over leave taken that day.
Disparate treatment
of
employees may demonstrate the employer's unlawful motivation.
(State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S.) An
34
Gillotte also exercised protected rights after the District took this action; however,
PERB typically does not consider adverse actions which pre-date protected conduct to
demonstrate nexus. (County
of
San Bernardino (County Library) (2009) PERB Decision
No. 2071-M.)
43

employer's departure from established procedures may also provide evidence
of
nexus. (Santa
Clara Unified School District (1979) PERB Decision No. 104.) 	However, neither the specific
details
of
his previously-approved requests, nor the circumstances surrounding other
employees who took leave that day were introduced in the record. Thus, Gillotte has not
shown disparate treatment or a departure from procedures based on these assertions.
Gillotte also contended, again without any supporting evidence, that employees
regularly take personal necessity leave for reasons such as extending their camping and Las
Vegas trips, and have never been questioned by the District. He did not, however, introduce
evidence that the District has actually been aware
of
such employee activity and chose to
ignore it. At most Gillotte's assertion shows that employees have been fortunate for not
getting caught for requesting personal necessity leave for prohibited reasons under the CBA.
The CBA specifically prohibits personal necessity leave to be taken for reasons
of
employee
convenience, and though while not exclusive, provides very specific examples
of
serious
reasons that do justify the leave. Elzig's testimony regarding routinely denying such requests
for reasons
of
convenience is consistent with the terms
of
the CBA and is therefore credited
over Gillotte's testimony.
Notably, all
of
Elzig' s actions over the processing
of
Gillotte' s personal necessity leave
request were consistent with the tenns
of
the CBA. She denied Gillotte's request because it
was not timely submitted, and after inquiring over his reasons, she learned that they did not fall
within the parameters set forth in the CBA. In contrast, Gillotte essentially admitted that he
did not submit the request to the District personnel office more than two days before the leave
was requested as required under the CBA. He did not offer any reason for his failure to do so.
Given that the Boykin hearing date had been calendared for over one month prior to his
44

request, there is no obvious excuse for this failure. Furthermore, and consistent with Elzig's
testimony, Gillotte admitted to knowing that the District previously had denied a similar
request by another employee to attend the court hearing
of
a fellow employee. Thus, the denial
in this case was consistent with that prior action and should have come as no surprise to
Gillotte. Moreover, attending an employment hearing
of
another employee, under the facts
presented here, does not align with the serious personal and/or emergency situations described
as exemplars for personal necessity leave under the CBA.35 In short, Gillette has failed to
establish that the District treated him disparately or departed from usual procedures when his
request was denied.
Gillotte has not shown a nexus between his protected activity and the District's denial
of
his request to take personal necessity leave, and therefore has not demonstrated a prima
facie case
of
retaliation for this allegation. Additionally, it was not timely amended into the
complaint. For these reasons, this allegation is hereby dismissed.
2.
	Intent to Terminate Gillette's Employment
a. 	Gillette's Theories ofNexus
Gillotte advanced several theories
of
nexus that are not sufficient, some
of
which
warrant discussion. First, Gillotte asserted departure from procedures by his failure to receive
a Skelly hearing, by not receiving prior notice that the board was going to vote over whether to
issue a notice
of
intent to terminate his employment on May 7, 2012, and by being deprived
of
35
Gillotte also asserted, without elaboration, that he could not arrange his meeting with
his attorney after the Boykin hearing for times that were convenient to him. Elzig found this
assertion unpersuasive when she denied the request. As previously discussed, the CBA
specifically prohibits the use of personal necessity leave for reasons of convenience. Without
further explanation from Gillette, Elzig's conclusion in this regard aligns with CBA mandates
and does not show a departure from procedure.
45

the ability to address the board
of
education on that issue. 36
In
its briefs, the District cited
Kolter
v.
Commission on Professional Competence
of
the Los Angeles School District (2009)
170 Cal.App.4th 1346 (Kolter) to dispute these assertions.
In
Kolter, the court specifically
found that the California Supreme Court's decision in Skelly did not mandate a full evidentiary
hearing prior to the employer's initial decision to take disciplinary action, just prior to that
action becoming final. Thus, the court rejected the idea
of
an absolute right to address a school
district governing board prior to their vote over the mere intent to impose discipline. (Kolter at
p. 1353.) The court further held that the hearing process provided under Education Code
section 44934, adopted by the Legislature one year post-Skelly, provides the procedural due
process safeguards mandated by Skelly. (Id. at p. 1353.) Moreover, the court concluded that a
school district governing board may deliberate in closed session regarding the initiation
of
charges against an employee without providing the statutory notice required under Government
Code section 54957. (Id. at p. 1352.) Thus, Gillotte has not shown that the District departed
from these procedures under applicable law.
Next, Gillotte argued at hearing that the District's maintenance
of
investigation and site
files separate from his official personnel file was an impermissible departure from established
procedures under the law. Novato, supra, PERB Decision No. 210 found that maintenance
of
36
Gillotte also asserted impermissible irregularities in the dismissal process under
Education Code section 44944 by Elzig's failure to verify the charges against him at the time
they were presented to the board of education. Elzig credibly testified that at the time she
presented the allegations against Gillotte to the District board
of
education, she believed them
to be true, and that her failure to include the signed verification was simply a mistake.
Notably, Gillotte failed to explain how this mistake had any negative effect, or effect
whatsoever, on his ability to respond to the charges against him. Furthermore, where a mere
record keeping error has no effect on the decision to impose discipline, it will not demonstrate
evidence of nexus. (See Regents
of
the University
of
California (2012) PERB Decision
No. 2302-H.) Thus, Gillotte has failed to demonstrate that Elzig's inadvertent error was a
departure from procedures under these facts.
46

"secret files" regarding an employee may show evidence
of
unlawful motive where documents
contained therein are never discussed with the employee and such file creation is inconsistent
with the employer's personnel practices.
(Id.
at pp. 20-21.) However, where consistent with
the employer's existing practices, the maintenance
of
a "working file" regarding an employee
does not evidence nexus unless the employee is not provided with reasonable access to the file
in order to respond to proposed discipline. (Woodland Joint Unified School District (1987)
PERB Decision No. 628 at pp. 43-44.) Here, Elzig testified that the maintenance
of
employee
site files and investigation files, separatefrom the official personnel file, is the District's
regular practice, and Gillotte was afforded the opportunity to review these files, which he
chose not to do. Thus, it does not appear that the employer's practices in this instance are a
departure from its procedures or applicable law.37
b. 	Other Evidence
of
Nexus
Elzig submitted the statement of charges and intent to terminate Gillotte to the District
board
of
education within approximately one week
of
the filing
of
the unfair practice charge,
and approximately three months after NEA-J responded to proposed disciplinary action on
Gillotte's behalf. Thus, the timing
of
the District's action supports finding nexus. (Escondido
Union Elementary School District (2009) PERB Decision No. 2019.) There are also other
circumstantial nexus factors present.
37
Although the argument was not entirely fleshed out, Gillotte also appears to contend
that he could not fully participate in the final investigation against him because he lacked the
opportunity to interview students after he was placed on administrative leave. This argument
is rejected because Gillotte had always provided written responses to earlier disciplinary
actions against him (2008, 2009, 2010) and there is no indication that he ever interviewed
students to do so. The fact that he chose not to provide his own written response to the 2011
investigation does not demonstrate that the District departed from investigation procedures or
that the investigation was cursory.
47

Elzig admitted during cross examination that
it
is the District's policy and practice not
to provide written student complaints to employees until the employee is going to a dismissal
hearing. The January 26, 2012 summary
of
allegations had written student complaints
attached. Prior to that, all previous disciplinary documents provided to Gillotte by the District
contained administrator summaries
of
student statements, but not the statements themselves.
At
the time that Gillotte received the summary
of
allegations in January 2012, the
District's investigation into the 2011 complaints should have been ongoing. This is so,
because Gillotte had not yet been given an opportunity to respond to the allegations. Elzig
testified earlier that she considers an employee's response to a summary
of
allegations to be a
part
of
the District's investigation into alleged misconduct, and that employees are always
given that opportunity to respond. Yet, in January 2012, Gillotte was provided with the
summary
of
allegations with student statements attached before he had ever been given an
opportunity to respond, either verbally or in writing. According to Elzig's admission,
however, the attachment
of
student statements meant that the District had already decided at
that point to terminate Gillotte' s employment before he was allowed input into the
investigation.
	If
the District had acted consistently with the investigation process that Elzig
testified to, then Gillotte should not have received any student statements until he received the
statement
of
charges and intent to dismiss on May 8, 2012, after the conclusion
of
the
investigation process.
In City
of
Santa Monica (2011) PERB Decision No. 2211-M (Santa Monica), the Board
found no evidence
of
nexus in an employer's failure to interview an employee prior to
releasing him from probation. The Board reasoned that the city's decision was consistent with
existing investigation practices. (Id. at p. 15, citing County
of
Riverside, supra, PERB
48

Decision No. 2184-M, State
of
California {Department
of
Health Services) (1999) PERB
Decision No. 1357-S.) In that case, no other evidence
of
nexus was present. (Ibid.) Here, in
contrast, the District appeared to be acting inconsistently with its investigation practice
by
predetermining the outcome
of
the investigation before Gillotte had the opportunity to respond
to the most recent allegations against him.
Additionally, unlike
in
Santa Monica, supra, PERB Decision No. 2211-M, the
departure from investigation procedures here is accompanied
by
close timing between adverse
action and protected conduct. Also, there is at least an appearance
of
bias
by
Tmjillo (namely,
the admittedly inappropriate "hit" comment), one
of
the administrators who investigated
Gillotte. This, coupled with the District's inconsistent statements at hearing regarding
Tmjillo's involvement in the investigation, is evidence
of
nexus. (See Chula Vista Elementary
School District, supra, PERB Decision No. 2221 [inconsistent statements by the employer
regarding its conduct may provide evidence
of
nexus].) For example, Pace testified that
Trujillo, was closely involved
in
her investigations into Gillotte's alleged misconduct "from
day one," whereas Elzig tried to distance Trujillo from the investigation process
by
repeatedly
claiming that he had no great level
of
involvement. Thus, the record considered as a whole
suggests an inference
of
unlawful motivation. Accordingly, Gillotte has demonstrated a prima
facie case
of
retaliation regarding the Districf s intent to terminate his employment.
C. The District's Burden
Once the charging party establishes a prima facie case
of
retaliation, as Gillotte has
done here, the respondent then bears the burden
of
proving that it would have taken the same
actions even
if
the employee had not participated in protected conduct. (Novato, supra, PERB
Decision No. 210; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981)
49

29 Cal.3d 721; Wright Line (1980) 251 NLRB 1083.) Where it appears that the employer's
adverse actions could have been motivated by both valid and invalid reasons, "the question
becomes whether the [adverse actions] would not have occurred 'but for' the protected
activity." (Martori Bros. at p. 729.) The "but for" test is an "affirmative defense which the
employer must establish by a preponderance of the evidence." (McPherson v. Public
Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.)
In this case, any slight irregularities in the investigation process or hints of bias are
overshadowed by several factors. First, Gillotte admitted several allegations of misconduct
against him, and many of these occurred prior to his protected conduct.38 The Board has found
that even where there is some evidence of nexus, an employee's dismissal may be justified
where the charges against an employee are mostly true. (Healdsburg, supra, PERB Decision
No. 1185, p. 67.) The Board has also concluded that retaliation was not the true motive for an
employee's dismissal, despite some evidence of investigation bias and animus against union
activity, where an employer had legitimate concerns about work performance that predated the
employee's protected conduct. (Bellevue Union Elementary School District (2003) PERB
Decision No. 1561.) Gillotte's history ofreprimand for inappropriate behavior toward students
began well before any exercise of protected conduct. This implies that the District's actions
were not unlawfully motivated.
38 For example, even though he attempted to place the impetus for several incidents on
students' behavior and/or misinterpretation of his motives, rather than as a result of his failure
to respond appropriately, Gillotte still admitted to: the backpack incident, slamming a
student's desk against the wall and shouting at her, making comments about menial labor jobs,
stating that he was a teacher and not a personal tutor, the "jerk" comment, and asking a student
whether he passed the high school exit exam in front of the class, when he in fact already knew
that the student had failed the exam. These admissions prove the truth of the District's
allegations.
50

Furthermore, the Board has found, despite prima facie evidence
of
retaliation, that an
employer was justified in terminating employment where, after a long history
of
complaints, an
employee had repeatedly been warned
of
his deficiencies and failed to improve. (Santa
Monica, supra, PERB Decision No. 2211-M.) Whereas, a teacher's dismissal was not upheld
where the employer asserted that a lack
of
interpersonal skills was the reason for the firing, yet
there.was no evidence that such an issue had been brought to the employee's attention, or that
any classroom management problems had been observed. (Chula Vista Elementary School
District, supra, PERB Decision No. 2221.) Notably, as in Santa Monica, Gillotte had been
warned starting
in
2008 that his interactions with students were unacceptable, and yet students
continued to complain through 2011 regarding his classroom behavior. Still, Gillotte did not
modify his behavior despite being issued a letter
of
reprimand and two separate notices
of
unprofessional conduct.
Moreover, there was consistent and credible evidence relied upon by the District in its
investigation process. Notably, where an employer has legitimate concerns over how a
teacher's conduct may affect the integrity
of
its education program, PERB has refus.ed to
disturb the employer's decision to terminate employment. (Fall River Joint Unified School
District (1998) PERB Decision No. 1259.) Although it is not clear from the record the manner
in which student complaints were brought to Fretz's attention, the assertions set forth in her
investigations ( even one that Gillotte did not expressly admit to, i.e., the "hood" comments)
were corroborated by student testimony before the CPC. Additionally, Gillette never asserted
that Pace was biased against him or possessed animus against union activity, and she credibly
testified that her investigations in 2009-2010 and 2011 were initiated because students had
brought forth complaints about Gillotte to the administration. The fact that students repeatedly
51

raised concerns about Gillotte to administrators, especially across multiple years and at
different school sites, suggests that the District's concerns about his effect on the integrity of
the educational program were legitimate.
The charges levied against Gillotte by the District were corroborated by 10 students
who testified credibly and consistently that not only had he engaged in the specific instances of
misconduct discussed herein, but also that, on a daily basis, he was generally rude, sarcastic,
demeaning, and did not help with them with their questions. For instance, two different
students testified that Gillotte said that they were dumb as rocks and that a horse could sit in
class and learn the material more effectively. Credibility of the students' testimony was also
enhanced by their candid answers to potentially embarrassing questions over their sometimes
poor grades, history of cheating, and problems with truancy. The consistency of the students
testimony, again, across multiple years of instruction at different school sites, also lends
credence to their collective accounts. The students' testimony was consistent with the
District's statement of charges against Gillotte adopted on May 7, 2012.
As discussed above, Gillotte contested some of the allegations brought against him, for
example, his comments to the student who planned to enlist in the Army, and calling R.M. a
super senior. However, students credibly testified to these events and have no motivation to
lie,39 whereas Gillotte has a motivation to lie to protect his job. Furthermore, some of
Gillotte's testimony at the PERB hearing was inconsistent with his prior written responses to
the allegations, which casts doubt over the veracity of his testimony. As one example, his
written response over the backpack incident, describing "pandemonium" breaking out in class
that he had to control after the student's outburst over the spider, was markedly different from
39 Notably, several students who testified had already graduated at the time of the CPC
hearing.
52

his testimony over that same incident during the hearing. At hearing, Gillotte's account was
that the student's behavior during the exercise was quiet and not disruptive to him or the class.
Elzig' s questioning
of
Gillotte' s honesty in his written responses is underscored by his
inconsistent testimony. Furthermore, Gillotte chose, without explanation, not to respond to the
District's summary
of
allegations over the 2011 investigation, nor did his testimony really
address those latest allegations. After considering the entire record, it is concluded that the
District decided to terminate Gillotte's employment because
of
repeated and credible
complaints over his treatment
of
students, and not because
of
his protected conduct. The
District has therefore successfully rebutted the prima facie case.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the
entire record in this matter, the complaint and underlying unfair practice charge in Case
No. LA-CE-5693-E, Christopher Gillotte
v.
Jurupa Unified School District, are hereby
DISMISSED.
Right to Appeal
Pursuant to California Code
of
Regulations, title
8,
section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
53

In accordance with PERB regulations, the statement
of
exceptions should identify
by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
or
received
by
electronic mail before the close
of
business, 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, 32091 and 32130.)
Any statement
of
exceptions and supporting brief must be
served concurrently with its
filing upon each party to this proceeding.
Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8,
§§
32300, 32305, 32140,
and 32135, subd. (c).)
54