Los Angeles Unified School District (PERB 2432E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ROBIN ROBINSON,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5770-E
PERB Decision No. 2432
June 12, 2015
Appearances: Robin Robinson, on her o,vn behalf; Office
of
the General Counsel by
Jacquiline M. Wagner, Assistant General Counsel, for Los Angeles Unified School District.
Before Huguenin, Banks and Gregersen, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by Robin Robinson (Robinson) to a proposed decision (attached)
by an administrative law judge (ALJ), dismissing Robinson's unfair practice charge against the
Los Angeles Unified School District (LAUSD). The charge alleged that LAUSD terminated
Robinson's employment in retaliation for her protected activity, including filing and pursuing a
grievance challenging a work assignment allegedly awarded out
of
seniority order, in violation
of
the Educational Employment Relations Act.1
PERB Regulation 323002 requires the party filing exceptions to a proposed decision to
include: (1) a statement
of
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
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

taken; (3) designate the portions
of
the record relied upon; and (4) state the grounds for each
exception. (PERB Reg. 32300, subd. (a)(l)-(4).) Additionally, an exception not specifically
urged shall be waived, pursuant to subdivision (c)
of
the same regulation.
Although the Board's review
of
exceptions to a proposed decision is de novo, it need
not address arguments that have already been adequately addressed in the same case or that
would not affect the result (Trustees
of
the California State University (Culwell) (2014)
PERB Decision No. 2400 (CSU (Culwell), pp. 2-3); Los Angeles Superior Court (2010)
PERB Decision No. 2112-1, pp. 4-5;
1\1organ Hill Unified School District (1995) PERB
Decision No. 1120, p. 3), particularly where the party seeking relief has simply reasserted its
claims without identifying a specific error
of
fact, law or procedure to justify reversal.
(Los Rios College Federation
of
Teachers (Sander, et al.) (1995) PERB Decision No. 1111
(Los Rios), pp. 6-7; State
of
California (Department
of
Youth Authority) (1995) PERB Decision
No. 1080-S, pp. 2-3; San Bernardino City Unified School District (2012) PERB Decision
No. 2278, pp. 2-3; County
of
San Diego (2012) PERB Decision No. 2258-M, pp. 2-3.)
Compliance with the regulation is required to afford the respondent and the Board an
adequate opportunity to address the issues raised. (Temecula Valley Unified School District
(1990) PERB Decision No. 836, pp. 2-3; see also San Diego Community College District
(1983) PERB Decision No. 368.) Although California courts and PERB recognize a strong
public policy favoring hearing cases on their merits and against depriving a party
of
the right
of
appeal because of technical noncompliance in matters
of
form (United Farm Workers
of
America
v.
Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912,916), failure to comply
with PERB Regulation 32300 can result in dismissal
of
the matter without review
of
the merits
of excepting party's claims. (See California State Employees Association (O'Connell) (1989)
2

PERB Decision No. 726-H, p. 3; Los Angeles Unified School District (1989) PERB Decision
No. 785.) We do so here.
After the ALJ issued her proposed decision, Robinson filed with the Board a two-page
document, captioned "Arbitration Review
Request-
Section 538,3" in which Robinson asserts,
among other things, that she engaged in protected activities under EERA and Labor Code
section 132a,4 was subjected to an adverse employment action, and that a causal link exists
between her protected activities and the employer's adverse employment action. Assuming the
filing was intended as a statement
of
exceptions, it fails to comply, even marginally, with the
PERB regulation because
it
makes no reference to any factual, legal or procedural error by the
ALJ nor cites to any portion
of
the record
in
this case.
Robinson does assert that LAUSD failed to comply with the constitutional pre-
deprivation requirements for permanent public employees under Skelly
v.
State Personnel
Board (1975) 15 Cal.3d 194 (Skelly), which,
if
true, would constitute a departure from standard
procedures and provide Robinson some evidence
of
nexus. However, based on the
documentary record and Robinson's own lack
of
credibility, the ALJ determined that LAUSD
twice sent documents by both regular and certified mail to notify Robinson
of
the charges
against her and her right to respond in person or in writing. Robinson cites to no portion
of
the
record to support her allegation that LAUSD failed to comply withSkelly nor identifies any
evidentiary ruling or other procedural error that would warrant review
of
the ALJ's factual
findings, let alone reversal
of
the proposed decision. Because the Board need not review
recycled contentions that have already been adequately addressed in the same case
3 The statutory, regulatory or other source
of
section 538 is not identified in Robinson's
request. 	Because it does not appear to correspond to any statute or regulation within PERB' s
jurisdiction, we disregard it as a matter properly before the Board.
4 California Labor Code section 132a governs claims of retaliation for filing or pursuing
a workers' compensation claim, which is not within PERB's jurisdiction.
3

(CSU (Culwell), supra, PERB Decision No. 2400, pp. 2-3; Los Rios, supra, PERB Decision
No.
1111,
pp. 6-7; State
of
California (Department
of
Youth Authority) (1995) PERB Decision
No.1080-S,
pp. 2-3), to the extent Robinson has excepted to the ALJ's findings and
conclusions regarding LAUSD's compliance with Robinson's Skelly rights, we decline to
review the exception.
Robinson's filing includes citations to various court cases interpreting California and
federal non-discrimination laws. Assuming for the sake
of
argument that these cases provide
even persuasive authority for how PERB should interpret the anti-discrimination provisions
of
EERA, because she has failed to identify any specific errors or issues
of
fact, law or procedure
in the proposed decision, it is unclear how any
of
the authorities cited bear on any issue
properly before the Board, much less how they warrant reversal
of
the proposed decision.
(California Federation
of
Teachers (Malik) (2004) PERB Decision No. 1662.)
Clark County School Dist.
v.
Breeden (2001) 532 U.S. 268, a case arising under federal
non-discrimination laws, involved a single incident during a school district's review
of
a job
applicant's profiles. A male supervisor, in the presence
of
one male and one female employee,
read aloud a sexually explicit statement attributed to one applicant and stated that he did not
know what it meant. The male employee responded: "I'll tell you later," and both men laughed.
The U.S. Supreme Court held that no reasonable person could have believed that the sex
discrimination provisions
of
federal law were implicated by this incident and dismissed the
plaintiff's claim that she had suffered retaliation for making an internal complaint about the
exchange. Robinson has not explained how the case relates to any factual, procedural or legal
error in this case, nor how it supports Robinson's position or offers any guidance for PERB's
interpretation ofEERA's non-discrimination language, as required by PERB Regulation 32300,
subdivision (a)(l) or (4).
4

Robinson also cites Yanowitz
v.
L 'Orea!
USA,
Inc. (2005) 36 Cal.4th 1028, which
concerned the standards for showing that. an employee has engaged in protected activity and for
determining whether an employee was subjected to an adverse employment action sufficient to
survive dismissal on summary judgment. Protected activity and adverse employment action are
elements
of
the prima facie case
of
discrimination within PERB's jurisdiction. However, they
are not at issue in this case as Robinson's charge was dismissed for failure to establish the other
two elements
of
discrimination, employer knowledge and nexus, not for lack
of
protected
activity or adverse action. The Board will not consider issues that were not decided adversely to
the party asserting the exception or would not affect the outcome
of
the proposed decision.
(CSU (Culwell), supra, PERB Decision No. 2400-H, p. 3; Fremont Unified School District
(2003) PERB Decision No. 1528 (Fremont), pp. 2-3; see also !BEW Local 1245 (Neronha)
(2008) PERB Decision No. 1950-M, p.
1.)5
Robinson also cites Yartzoff
v.
Thomas (9th Cir. 1987) 809 F.2d 1371 (Yartzo/fJ, at
page 1376, as support for her allegation that she engaged in protected activities. However,
Robinson's case was dismissed for failure to show employer knowledge
of
her protected activity
and a causal link between her protected activity and the adverse action. The ALJ found that
Robinson engaged in protected activity through her representation in a 2006 grievance and by
filing and pursuing a work assignment grievance in October-November 2012. Thus, even
assuming the case offers some guidance on issues
of
employer knowledge and/or nexus, the two
elements on which Robinson's charge was dismissed, Robinson has not identified what those
5 Pursuant to PERB Regulation 32310, the Board will consider cross-exceptions, i.e.,
exceptions filed in response to exceptions in order to preserve an argument before the Board,
in the event it reverses a proposed decision. However, the regulation governing cross-
exceptions is not applicable to Robinson here because her Arbitration Review Request was
filed in apparent response to the proposed decision and not in response to any exceptions by
another party to this case.
5

issues might be nor how Yartzojf offers an alternative approach or analysis from the reasoning
of
the proposed decision in this case. We therefore disregard it as well.
The only other authority cited is Ohton
v.
Board
of
Trustees
of
the California State
University (2010) 180 Cal.App.4th 1402 (Ohton ), which is
of
no more assistance than the other
cases cited
by
Robinson. Ohton involves the standards for determining whether administrative
remedies have been exhausted before filing a court action alleging retaliation for making a
"protected disclosure" under the California Whist.leblower Protection Act (CWPA),
section 854 7 .12, which, like federal and California workplace discrimination statutes, is not
within PERB's jurisdiction. The appellate court's discussion in Ohton focuses on whether the
claimant made a "protected disclosure," i.e., engaged in protected activity under CWPA (Ohton,
supra, at pp. 1412-1417), and whether the respondent's investigation
of
the claimant's
administrative complaint considered the full scope
of
adverse actions. (Id. at pp. 1416-1418.)
Thus, even assuming the elements for proving a CWPA claim are analogous to the
elements for proving an unfair practice charge alleging discrimination under EERA (see Novato
Unified School District (1982) PERB Decision No. 210), the particular elements at issue in
Ohton were protected activity and adverse action, neither
of
which were decided adversely to
Robinson in the proposed decision, and neither
of
which would be properly before the Board,
even assuming they had been adequately raised by Robinson's exceptions. (CSU (Culwell),
supra, PERB Decision No. 2400; Fremont, supra, PERB Decision No. 1528.) Moreover, the
appellate court's decision in Ohton is pending review by the California Supreme Court, further
undermining any value it may, even arguably, have for the present matter. (Ohton
v.
California
State University
of
San Diego (Cal. 2010) 108 Cal.Rptr.3d 74.) Finally, because Robinson fails
to explain the significance of the Ohton decision for any of the issues before PERB, as with the
6

other cased cited by Robinson, we decline to consider it as well. (PERB Reg. 32300,
subds. (a)(l), (a)(4).)
Because Robinson has raised no issues
of
fact, law or procedure warranting Board
review or otherwise complied with PERB's regulation governing exceptions to a proposed
decision, we find that the ALJ's findings
of
fact are adequately supported by the record and her
conclusions
of
law are well-reasoned and in accordance with applicable law. We hereby adopt
the proposed decision as the decision
of
the Board itself.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5770-E are
hereby DISMISSED.
Members Huguenin and Gregersen joined in this Decision.
7

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ROBIN ROBINSON,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5770-E
PROPOSED DECISION
(08/11/2014)
Appearances: Robin Robinson, on her own behalf; Office of the General Counsel by
Jacqueline M. Wagner, Assistant General Counsel, for Los Angeles Unified School District.
Before Valerie Pike Racho, Administrative Law Judge.
In this case, a teacher's aide alleges that her employer terminated her employment in
retaliation for her pursuit of a grievance regarding work assignments. The employer denies
that its actions were retaliatory and maintains that the teacher's aide was fired because she was
suspected of committing child abuse.
PROCEDURAL HISTORY
On December 6, 2012, Robin Robinson filed an unfair practice charge with the Public
Employment Relations Board (PERB or Board) against the Los Angeles Unified School
District (District). On April 21, 2013, a first amended charge was filed.
On July 15, 2013, the PERB Office of the General Counsel issued a complaint alleging
that the District violated section 3543.5(a) of the Educational Employment Relations Act
(EERA)1 by suspending Robinson's employment pending her dismissal because she filed a
grievance in October 2012.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.

On August 29, 2013, PERB conducted an informal settlement conference with the
parties but the dispute was not resolved. The matter was set for hearing on November 13 and
14,2013.
On November 5, 2013, the District filed a notice of appearance, petition to file a late
answer, and answer to the complaint denying any violation of EERA and asserting various
affirmative defenses. The District noted that the reason for its failure to submit a timely
answer was due to miscommunication between attorneys for the District due to the recent
retirement of the attorney formerly handling the case on the District's behalf. Robinson did
not oppose the District's petition.
On November 8, 2013, the District requested a continuance of the hearing due to the
unavailability of a key witness. Robinson did not oppose the request. The hearing was
rescheduled for February 11 and 12, 2014.
On February 11, 2014, the District appeared at the PERB Los Angeles Regional Office
for the hearing, but Robinson did not. An Order to Show Cause (OSC) for failure to appear
and prosecute the case was issued to Robinson on that same date. The District's request to file
its answer late was granted.
On February 20, 2014, Robinson timely submitted her written response to the OSC,
explaining her failure to appear and requesting that the hearing be rescheduled. The District
later submitted an untimely written objection to Robinson's response to the OSC that lacked
proof of service on Robinson. On March 14, 2014, the administrative law judge (ALJ) issued a
written ruling granting Robinson's request to reschedule the hearing.
The hearing was held on June 17 and 18, 2014. The District made a verbal motion to
dismiss the charge and PERB complaint at the conclusion of Robinson's case-in-chief. The
District's motion was denied without prejudice by the ALJ at that point, and the District then
2

presented its case-in-chief. After the conclusion of Robinson's case-in-rebuttal, the District
again verbally moved to dismiss the charge and PERB complaint. After hearing argument
from both parties, the ALJ granted the District's motion on the record and stated that she
would issue a proposed decision on the matter under PERB Regulation 32215.2
FINDINGS OF FACT
The District is a public school employer within the meaning of EERA section
3540.l(k). Prior to her release from employment, Robinson was an employee within the
meaning of EERA section 3540.l(j). During her employment, Robinson was included in a
bargaining unit exclusively represented by Service Employees International Union, Local 99
(Local 99). At all times relevant to the allegations in the charge, the District and Local 99
were parties to an operative collective bargaining agreement (CBA) that included a grievance
procedure. 3
Robinson's Employment History
Robinson began her employment with the District as an early education aide in 1993.
Her first assignment was at Wadsworth Children's Center. At some point, Robinson
transferred to 102nd Street Early Education Center (102nd Street). The duties of Robinson's
position included reading to children, assisting children with arts and crafts, supervising
children inside and outside of the classroom, maintaining a neat, clean learning environment,
and assisting the teacher with various tasks. Her performance evaluations were always
satisfactory. Robinson's final assignment was at the 52nd Street Early Education Center (52nd
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 The CBA was not introduced into evidence.
3

Street),4 directly reporting to Elizabeth Blackwell. Blackwell became the principal at 52nd
Street in July 2012. Although Blackwell and Robinson had crossed paths before while
working at various District school sites, this was the first date that Blackwell became
Robinson's supervisor.
Sonya Hicks was an associate principal at 102nd Street while Robinson was assigned
there. Hicks accused Robinson
of
verbally and physically threatening her during a meeting on
or around August 10, 2006.5 Blackwell, who was an assistant principal at a different school
site at the time, attended Robinson's pre-disciplinary conference over that incident at Hick's
request. Robinson sought and received representation by Local 99 for the conference.
Blackwell stated that it is the District's policy to have two administrators present whenever an
employee has requested union representation during a pre-disciplinary meeting. Robinson
denied at the PERB hearing and during the pre-disciplinary conference that she had verbally or
physically threatened Hicks. Robinson received a notice
of
unsatisfactory service, was
suspended for 30 days, and was transfened to 52nd Street over the incident with Hicks.6
In early September 2012 at 52nd Street, Blackwell observed Robinson handling a child
by picking up the child from the back
of
the arms and moving the child to another location in
the classroom. Blackwell was startled because she considered that kind
of
contact to be
improper. Blackwell approached Robinson and asked her why she had moved the child.
Robinson responded that she had asked the child to move but the child did not comply with the
request. Blackwell told Robinson that the way she had handled the ~hild could have resulted in
This school site was later renamed the Esther Collins Early Education Center.
5 Hicks is now retired from District employment and did not testify.
6 Robinson refused to acknowledge that the transfer was disciplinary; rather she
characterized it as having been done for her benefit since the District wanted her to be in safe
working environment. The documentary evidence belied Robinson's account.
4

an injury, and
if
her action had been observed by a parent, it could have been misconstrued .
. Blackwell instructed Robinson regarding acceptable ways
of
getting a child to move, including
a verbal request and extending one's hand for the child to hold. Blackwell thought that
Robinson was receptive to the verbal counseling and she did not believe that the incident was
serious enough to warrant written disciplinary action. Robinson did not recall the incident or
any counseling by Blackwell on the subject.
Robinson's Grievance Over Work Assignments
On October
15
2012, Robinson filed a grievance at the District's main offices and
discussed it with Susan Masters, a District administrator. The grievance alleged that another
employee, whom Robinson believed had less seniority than her, received an eight-hour
position that Robinson thought should have gone rightfully to her. Robinson held a three-hour
position. Masters told Robinson that she would look into the issues raised in the grievance.7
Prior to speaking with Masters, Robinson exchanged words with Yelena Karachun, a senior
human resources representative. Karachun testified that Robinson was disruptive in the office
that day and that she considered calling the campus police to deal with the situation. Karachun
was aware that Robinson was requesting paperwork to file a grievance. Robinson complained
to Masters about Karachun's conduct. Karachun testified that she was unaware
of
that
complaint. Masters and Karachun worked together in the District Office
of
Employee
Performance and Accountability, but Masters was not Karachun's supervisor. Karachun did
not handle Robinson's grievance and testified that she learned that Masters handled it during
her preparation for the PERB hearing.
By letter dated November 20, 2012, Masters memorialized a telephone conversation on
the same date informing Robinson that the grievance could not be processed because Robinson
7 Masters is now retired from District employment and did not testify.
5

did not allege that any provision of the CBA had been violated. The letter also provided the
telephone number for Maureen Diekmann, a District administrator in the division of Early
Childhood Education, whom Masters thought could best address Robinson's concerns.
Robinson testified initially that she was never informed about the outcome of the grievance,
but admitted to speaking with Masters on the telephone and was at some point informed that
Masters had retired. Robinson claimed that the telephone numbers provided by Masters did
not work and that the District generally gave her the "run around" about the grievance. During
cross-examination, Robinson did not recall whether she received Masters's November 20, 2012
letter. Later in her testimony, Robinson admitted that she received the letter and understood it
to mean that her grievance was not being recognized.
Robinson testified that she while she did not directly notify Blackwell about the
grievance or give her a copy of it, she asked Blackwell at some point whether she had heard
anything about it, and Blackwell said she was not aware of it. Blackwell testified that she
could not recall having a conversation with Robinson about a grievance, never received a copy
of it from the District, and did not actually learn of it until the first day of the PERB hearing.
The grievance form states that a copy of a grievance is to be provided to the employee's
supervisor.
Robinson is Accused of Child Abuse
On or about November 1, 2012, Robinson was working in a classroom with a substitute
teacher, Virginia Vallejo. While the children were gathering on a rug for "circle time," Vallejo
observed a two-year-old child leave the rug to continue playing in the back of the room.
Robinson took the child by the arm and returned her to the rug. According to Vallejo, the child
moved to get up again and Robinson forcefully pushed down the child to prevent her from
standing up. Vallejo approached Robinson and said, "We don't do that." Vallejo reminded
6

Robinson that this was not the first time she had been instructed not to handle children
inappropriately.8 Vallejo told Robinson that she was going to talk to Blackwell. Robinson
became upset and left the room.
Vallejo approached Blackwell later in the day and explained her concerns about
Robinson. Vallejo told Blackwell that she thought the incident should be reported, because she
thought Robinson's handling
of
the child was outside the scope
of
her duties and was not done
to protect the child's well-being. Vallejo had never before submitted a report regarding
suspected child abuse and was unsure about what to do. Blackwell instructed her regarding
how to file the report. All school staff working with children are mandated to report suspected
child abuse under state law and receive yearly training regarding child abuse. The District has
several policies in place regarding appropriate levels
of
physical contact with children and a
policy
of
zero tolerance for suspected abuse as mandated by the Education Code and other
state laws.9 All employees, including Robinson, receive regular training regarding these
policies.
Because
of
the suspected child abuse report, the police came to 52nd Street and
interviewed Robinson sometime in November 2012. Robinson asserted that other employees
of
the school had around the same time been the subject
of
police investigations for child
abuse, and so she did not at first realize that they were there to speak to her. Neither
Blackwell, nor Michael Haggood, the District's executive director
of
Early Childhood
8 Robinson had worked with Vallejo in the past, including in September 2012 when
Blackwell had counseled Robinson about handling children. Vallejo testified to being present
during Blackwell's counseling
of
Robinson that day.
9 The District's Code of Conduct With Students mandates that employees are to avoid
touching or having physical contact with students that is not age-appropriate or within the
scope of the employee's responsibilities or duties. The District's February 2010 Policy
Bulletin regarding the abolition of corporal punishment noted that the use of corporal
punishment for student discipline was abolished in 1984 and that corporal discipline, in any
form, is not to be used within the District.
7

Education, recalled any other incidents of employees being investigated for child abuse at 52nd
Street contemporaneously with Robinson's investigation. Karachun testified that a review of
the District's computerized database, "I-STAR," which tracks and reports suspected child
abuse incidents and other critical events at school sites, did not reveal any other child abuse
investigations at 52nd Street around that time. During her direct testimony, Robinson
acknowledged that she was aware in November 2012 that child abuse allegations had been
made against her. During cross-examination, however, she refused to aclmowledge that she
was even aware of the allegations against her until "much later," after the District provided her
with formal, written charges and causes for her termination from employment.
Blackwell had to report the allegations against Robinson to state and local regulatory
agencies, as required by law. The school ultimately received a citation by state regulators over
the incident, which found that the rights of a child were violated. Such violations of law
threaten the ability of the school to operate by either revocation of its operating license or by
being placed on probation. All parents of children enrolled in the school also had to be
notified in writing about the incident. The parents of the child in question removed the child
from the school.
The District's Investigation
Sometime in late November 2012, after police officers had visited 52nd Street and
interviewed Robinson, Haggood contacted local law enforce1nent and received clearance for
the District to investigate Robinson's conduct. In situations where the police are investigating
the conduct of an employee to detennine whether a crime has been cominitted, the District
must wait until authorized by the law enforcement agency to begin its administrative
investigation. Upon receiving permission from the police to proceed, Haggood called
Robinson into his office and informed her that an allegation of child abuse had been made
8

against her by another employee. Robinson told Haggood that she did not know anything
about it and was shocked that the police had mentioned her name. Robinson told Haggood that
Vallejo was lying and also maintained that position at the PERB hearing. Next, Haggood
contacted Vallejo. Haggood believed Vallejo's account
of
Robinson's conduct with the child.
Haggood also asked to Vallejo to write down what happened, and Vallejo did so.
Haggood and Blackwell discussed the situation and determined that termination from
employment was warranted under the circumstances based upon their belief that Vallejo was
telling the truth, Robinson's history
of
suspension and transfer for previous misconduct, and
Blackwell's recent attempt to correct Robinson's methods
of
interacting with children, which
was not heeded by Robinson. Haggood asked Blackwell to provide a written description
of
her
verbal counseling
of
Robinson in September 2012, since that event was not memorialized in
writing at the time it occurred, and Blackwell did so. Haggood admitted that he was the final
decision-maker in the decision to terminate Robinson's employment, although his
recommendation was also reviewed by his supervisor (Diekmann).
Employment Termination Procedures
Karachun was assigned by the District to draft the causes and charges for Robinson's
termination from employment. Her division within the Office of Employee Performance
Accountability deals exclusively with classified employees. Karachun is not a decision-maker
in classified employee discipline and termination actions. She reviews the disciplinary
recommendations
of
principals and administrators and then prepares the written causes for
discipline. Although Karachun was charged with preparing the written documents supporting
Robinson's dismissal, she had no role in deciding that dismissal was warranted. Rather, she
prepared the documents based upon Haggood's recommendation.
9

If
an employee exercises his or her right to appeal the discipline or employment
termination decision, Karachim essentially prosecutes the case on behalf
of
the District. In that
circumstance, Karacbun presents the District's case to a hearing officer who issues a
recommendation to sustain, modify, or overturn the discipline that is then considered and voted
upon by the Personnel Commission. The decision
of
the Personnel Commission is then
presented to the District's governing board, which makes the final employment decision. In
the last three years Karachun has handled 20 cases where an employee was accused
of
suspected child abuse. In all
of
those cases, the administrators recommended termination from
employment, which was ultimately upheld by the District's governing board.
Haggood and Karachun met with Robinson on December 5, 2012, and informed her
that the District was recommending her termination and that she would be suspended pending
the final dismissal action. Karachun also presented Robinson with a letter notifying her
of
the
same. Karachun told Robinson during the meeting that she would receive a Skelly
10
packet in
the mail. Karachun and Robinson both testified that neither
of
them informed Haggood about
Robinson's grievance. Haggood testified that he did not learn
of
it until the first day
of
the
PERB hearing.
On February 11, 2013, the District sent documents via regular and certified mail to
Robinson's address ofrecord informing her that the District intended to recommend to the
District's governing board that her employment be terminated. It is the District's customary
practice to send such documentation via regular and certified mail whenever an employee is no
longer on a school site to receive hand-delivery. A Notice
of
Unsatisfactory Service was
included, outlining the specific charges against her. Robinson was informed that
if
she wanted
an opportunity to respond to the charges before they were presented to the District's governing
10
See Skelly v. State Personnel Board (1975) 15 Cal.3d 194,215, governing procedural
due process rights for permanent public employees.
10

board, she should call the Office of Employee Performance Accountability to arrange a date,
time, and location for a conference. The District did not receive any verbal or written response
from Robinson in response to the documents mailed on that date.
On April 5, 2013, the District resent the documents described above via regular and
certified mail to Robinson's address ofrecord. The attached cover letter noted that the
documents were first sent to Robinson on February 11, 2013, and also stated that she had seven
calendar days to contact the District to set up a conference or notify of her intent to retire.
Otherwise, the letter warned that the recommendation for termination wouldbe forwarded to
the District's governing board. Robinson did not respond, and the District's recommendation
for her dismissal was then forwarded to and approved by the District's governing board.
During the PERB hearing, Robinson testified that she did not recognize the documents mailed
to her on April 5, 2013 and did not recall receiving them.
By letter dated June 5, 2013, the District notified Robinson that her 30-day suspension
was imposed from May 7, 2013 to June 5, 2013 and that her termination from employment was
effective as of June 5, 2013 .11 The letter also included instructions for filing an appeal of the
dismissal with the Personnel Commission. Robinson exercised that option, and an appeal
hearing was subsequently held before a hearing officer. The hearing officer issued a decision
dated March 22, 2014, recommending that Robinson's suspension and employment
termination be sustained. The Personnel Commission and the District's governing board
ultimately upheld the hearing officer's recommendations.
ISSUE
Did the District suspend and terminate Robinson's employment because she filed a
grievance in October 2012?
11 It appears that this letter was also sent via regular and certified mail to Robinson's
address of record.
11

CONCLUSIONS OF LAW
To demonstrate that an employer discriminated or retaliated against an employee in
violation ofEERA section 3543.5(a), the charging party must show by a preponderance of
evidence that (1) the employee exercised rights under EERA, (2) the employer had knowledge
of the exercise of those rights, (3) the employer took adverse action against the employee, and
(4) the employer took the action because of the exercise of those rights. (Novato Unified
School District (1982) PERB Decision No. 210, pp. 6-8 (Novato).)
Regarding the first element of the Novato standard set forth above, it is well-established
that an employee's pursuit of a contractual grievance, with or without the assistance of an
employee organization, is protected activity. (Sacramento City Unified School District (2010)
PERB Decision No. 2129.) Accordingly, Robinson's attempt at filing and pursuing a
grievance over her work assignment from October to November 2012 was protected under
EERA. It was also revealed by the District at the PERB hearing that, in 2006, Robinson
requested and received assistance from Local 99 over a disciplinary issue and Blackwell was
involved in that matter.12 This instance of protected conduct was not included in the PERB
complaint. It is appropriate to consider additional protected activities not specifically alleged
in the complaint when those activities are related to the claims in the complaint and the parties
have had the full opportunity to litigate all issues. (Lake Elsinore Unified School District
(2012) PERB Decision No. 2241.) Since at least one of the decision-makers in the instant
action was also involved with the handling of Robinson's 2006 discipline, and it was the
District who introduced this evidence, it is properly considered here.
12 Seeking and receiving assistance from an employee organization over employment
concerns is protected conduct. (County of Riverside (2011) PERB Decision No. 2184-M.)
When interpreting EERA, it is appropriate to rely upon decisional authority interpreting
parallel provisions of state and federal labor relations law. (Temple City Unified School
District (1990) PERB Decision No. 841, fn. 14, citations omitted.)
12

There is no question that suspension and dismissal from employment, as imposed on
Robinson here, are adverse employment actions. (Los Angeles County Superior Court (2008)
PERB Decision No. 1979-C.) Thus, elements one and three of the Novato retaliation standard
are not in dispute in this case. However, as discussed in more detail below, Robinson has not
met her burden of proving by a preponderance of evidence that the decision-makers here had
knowledge of her grievance activity and that they took action because of that activity and/or
her prior representation by Local 99.
The Employer's Knowledge of Protected Activities
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.) 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.)
The record demonstrated that Haggood and Blackwell were the administrators who
decided that Robinson's employment with the District should be terminated. Blackwell
admitted that she was asked by Hicks to participate in Robinson's pre-disciplinary meeting in
2006 because Robinson was going to be represented by Local 99. Thus, it is undisputed that
Blackwell had knowledge of Robinson's first exercise of protected conduct. Documentation of
the 2006 disciplinary action included information about Local 99's representation of Robinson,
and this was also attached to the Notice of Unsatisfactory Service issued to Robinson in
February and April 2013. Haggood testified to reviewing Robinson's employment history
during the course of his investigation, including the prior disciplinary action. Thus, it can be
13

presumed that Haggood was also aware that Local 99 represented Robinson during her prior
discipline proceedings.
Robinson admitted that she never discussed her October2012 grievance with Haggood.
Likewise, Karachun credibly testified that she did not infonn Haggood about anything she
knew about Robinson's grievance activity in October 2012, because it had no bearing on the
situation and she did not think about it. Haggood testified that he did not learn about the
grievance until he observed the first day of the PERB hearing. Haggood was a credible
witness and there is no reason to question his account. Therefore, at the time Haggood made
the decision to terminate Robinson's employment, he had no knowledge of Robinson's
gnevance.
Robinson asserted that at some point before she was suspended, she asked Blackwell if
she knew what was happening regarding her grievance, and Blackwell did not seem to know
anything about it. Blackwell did not recall such a conversation with Robinson, and asserted
that she never received a copy of the grievance and did not learn about it until she observed the
first day of the PERB hearing. Robinson also argued that Blackwell must have known about
the grievance because the grievance form itself notes that a copy is to be provided to the
employee's supervisor. Notwithstanding the notation regarding copy distribution on the
grievance form, Blackwell's account is credited over Robinson's on this point, and in general.
As explained below, Robin,son's testimony was not credible in most respects because it was
· 	·	1arge 1y mcons1stent. 13
13 PERB looks to the factors in Evidence Code section 780 to evaluate witnesses'
credibility, including: bias; the capacity to perceive, recollect, or communicate; and prior
consistent or inconsistent statements, among others. (State of California (Board of
Equalization) (2012) PERB Decision No. 2237-S; see also Santa Clara Unified School District
(1985) PERB Decision No. 500.)
14

During her direct testimony, Robinson admitted that she knew in November 2012 that
there were pending child abuse allegations against her by the District. This is logical,
considering that she admitted that the police interviewed her about those allegations at that
time, and acknowledged that the District then started "talking about child abuse" and she was
suspended because of the accusation against her shortly thereafter (on December 5, 2012).
During cross-examination, however, her testimony changed. Inexplicably, she refused to
acknowledge that she learned she had been accused of child abuse in November 2012, claiming
instead that she did not know about the aqegation until "much later," after she received fonnal,
written charges from the District (presumably, the Notice of Unsatisfactory Service).
Robinson's testimony regarding her communication with Masters over the grievance also
changed at several points.
Robinson's description of her communications with Blackwell was also inconsistent.14
When asked whether she recalled the verbal counseling incident, Robinson said she did not,
and added that Blackwell rarely came out of her office. Robinson said she only spoke to
Blackwell one time, when Robinson was informed that she was not coming back to the school.
Later, after admitting that she only spoke to Masters about the grievance, Robinson added the
account of inquiring about the status of the grievance with Blackwell. Additionally, at several
points in her own testimony, Robinson asserted that her daily blood pressure medication
sometimes caused memory problems and made her confused. However, her mental acuity was
amply demonstrated by her cogent questioning of District witnesses about specific events.
14 Notably, Robinson asserted during her rebuttal case that some of Blackwell's
testimony at the PERB hearing was inconsistent with Blackwell's earlier testimony at
Robinson's dismissal hearing, and therefore argued that Blackwell was not a credible witness.
This assertion was found to be inaccurate, however. The relevant portion of the dismissal
hearing recording was received in evidence as Charging Party's exhibit 18, and the audio file
was played off the record in the presence of all parties. The ALJ concluded that Blackwell's
testimony in the earlier preceding did not contradict her testimony at the PERB hearing.
15

Thus, any assertion about memory lapses or confusion seemed calculated by Robinson to avoid
directly answering questions.
For these reasons, I credit Blackwell and find that she did not know about Robinson's
October 2012 grievance at the time she recommended to Haggood that Robinson should be
dismissed from employment with the District. As such, Robinson has failed to show that either
of the decision-makers regarding her suspension and dismissal could have been motivated by
her grievance activity.
Nexus
The final, critical element of a prima facie case is whether there is a causal connection,
or nexus, between the adverse actions and the protected activity. Because direct evidence of
unlawful motivation is rare, 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.) In other words, nexus evidence must not be viewed piecemeal or in
isolation, but in the proper context of the entire record.
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 (North Sacramento.) However,
'"the closeness in time ( or lack thereof) between the protected activity and the adverse action
goes to the strength of the inference of unlawful motive to be drawn and is not determinative in
itself."' (California Teachers Association, Solano Community College Chapter, CTAINEA
(Tsai) (2010) PERB Decision No. 2096, p. 11, quoting Metropolitan Water District of
Southern California (2009) PERB Decision No. 2066-M.)
16

In order to assist in assessing circumstantial evidence of unlawful motive, PERB has
developed a set of nexus factors. In addition to close timing, one or more other factors
demonstrating unlawful motivation must be present for a prima facie case: (1) the employer's
disparate treatment of the employee (State of California (Department of Transportation)
(1984) PERB Decision No. 459-S); (2) the employer's departure from established procedures
and standards when dealing with the employee (Santa Clara Unified School District (1979)
PERB Decision No. 104); (3) the employer's inconsistent or contradictory justifications for its
actions (State of California (Department of Parks and Recreation) (1983) PERB DecisionNo.
328-S); (4) the employer's cursory investigation of the employee's misconduct (City of
Torrance (2008) PERB Decision No. 1971-M; Coast Community College District (2003)
PERB Decision No. 1560); (5) the employer's failure to offer the employee justification at the
time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or the
offering of exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) PERB Decision No. 786); (6) employer animosity towards union activists (Jurupa
Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive (North Sacramento, supra, PERB Decision
No: 264; Novato, supra, PERB Decision No. 210).
Timing
As discussed above, the only instance of protected conduct that the decision-makers in
this case were aware of was Robinson's representation by Local 99 regarding the disciplinary
action over the incident with Hicks in 2006. This exercise of protected conduct preceded the
action at issue here by at least six years. PERB has found such a gap in time to be too
attenuated to support an inference of unlawful motivation. ( Garden Grove Unified School
17

District (2009) PERB Decision No. 2086 [lapse of approximately two years between protected
activity and alleged adverse action was insufficient to suggest 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].) Accordingly, the
remote timing between Robinson's representation by Local 99 and the adverse action in this
case does not strongly infer that the District was unlawfully motivated. There are also no
additional indicators of nexus in the record, as explained below.
Other Nexus Factors
Robinson argued that nexus was demonstrated because the District departed from
established procedures, since she did not receive a Skelly hearing. Robinson also argued that
the District had no proof that child abuse occurred, which suggests a cursory investigation. She
also implied that other employees investigated for child abuse were not treated as harshly as
she was. None of these arguments have weight.
Regarding an alleged departure from established procedures, the evidence shows that
consistent with its usual practice, the District offered twice, in writing, the opportunity for
Robinson to schedule a conference to dispute the allegations against her prior to the
recommendation for her dismissal being submitted to the District's governing board. Robinson
did not take action to schedule a conference. She testified that she did not receive these
notifications. Robinson's testimony was not believable, especially because she received and
responded to other documents sent to the same address, including the notification of her right
to appeal to the Personnel Commission and those sent to her by PERB regarding the instant
charge. (Jurupa Unified School District (2013) PERB Decision No. 2309; see also Evidence
Code section 641: "A letter correctly addressed and properly mailed is presumed to have been

received in the ordinary course of mail.") 	Thus, the record did not persuasively demonstrate a
departure from Skelly procedures.
The evidence also does not demonstrate an inadequate investigation. Haggood
interviewed both Robinson and Vallejo, and credited Vallejo's version of events. Haggood
testified at length about the consideration he gave to Robinson's history of discipline for
misconduct and prior counseling by Blackwell, the latter of which he found particularly
relevant to the instant charges. His account does not imply a perfunctory review of Robinson's
alleged misconduct, or that he did not have a genuine interest in uncovering the truth of what
occurred.
Finally, Robinson testified that other employees were also investigated for child abuse
around November 2012 at 52nd Street, and implied that they were not subjected to the same
disciplinary actions as she was. The record did not demonstrate this, however, as Haggood,
Blackwell, and Karachun all credibly refuted this claim. Karachun also testified that all 20
classified employees accused of child abuse within the last three years, like Robinson, have
been dismissed from employment. Thus, there was no competent evidence of disparate
treatment.
Conclusion
For these reasons, I find that Robinson failed to demonstrate a prima facie case of
retaliation for her protected activities and that there was no inference of discriminatory intent
by the District suspending and terminating her employment.
PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire record in this
case, the complaint and underlying unfair practice charge in Case No. LA-CE-5770-E, Robin
Robinson v. Los Angeles Unified School District, are hereby DISMISSED.
19

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
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).)
20