San Diego Unified School District (PERB 2538E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EMMA YVONNE ZINK,
Charging Party, 	Case No. LA-CE-6095-E
v. 	PERB Decision No. 2538
SAN DIEGO UNIFIED SCHOOL DISTRICT, 	September 7, 2017
Respondent.
Appearances: Mary Elizabeth Bain, representative for Emma Zink.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Emma Yvonne Zink (Zink) from the dismissal (attached) by the
PERB Office of the General Counsel (OGC) of her amended unfair practice charge (UPC)
against the San Diego Unified School District (District). The charge as amended alleged that
the District violated the Educational Employment Relations Act (EERA)1 by retaliating against
Zink and interfering with her protected rights by convening an investigative meeting with
Zink, continuing to keep her on administrative leave, preventing her from teaching summer
school, and issuing her a notice of proposed reassignment.
The Board has reviewed the case file in its entirety and fully considered the relevant
issues and contentions on appeal. Based on this review, the Board affirms the dismissal in
part, and reverses in part, remanding the case to the OGC for further processing in accordance
with the following discussion.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

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SUMMARY OF FACTUAL ALLEGATIONS2
Zink is a high school math teacher who has been employed in the District for 30 years,
26 of which have been at the same high school, La Jolla High. Her dispute with the District,
which led to the allegations in the UPC, seems to have begun in September 2014, when she
was summoned to a meeting with the school’s vice principal regarding multiple student
suspensions she wrote during one period the previous day. Zink was admonished for writing
too many suspensions, and she asserted that the District failed to provide guidance and support
to teachers regarding student suspensions.
On October 6, 2014, Zink attempted to confiscate from a student an electronic device
he was using in violation of school and District policy. The attempted confiscation resulted in
the student attempting to hit or shove Zink and her holding his arms to avoid being hit. This
incident resulted in Zink being placed on paid administrative leave pending the District’s
investigation into the incident, a leave that was extended to last the rest of the 2014-2015
school year.
On October 13, 2014, Zink filed an administrative complaint with the District alleging
harassment and discrimination, and requested as a remedy that the District provide support for
2 On review of a dismissal without hearing, we treat the charging party’s factual
allegations as true and consider them in the light most favorable to the charging party.
(San Juan Unified School District (1977) EERB Decision No. 12, p. 4 [Prior to January 1,
1978, PERB was known as the Educational Employment Relations Board]; Golden Plains
Unified School District (2002) PERB Decision No. 1489, p. 6; California School Employees
Association & its Chapter 244 (Gutierrez) (2004) PERB Decision No. 1606, pp. 3-4.) We may
also consider information provided by the respondent, provided it is submitted under oath,
complements without contradicting the facts alleged in the charge, and is not disputed by the
charging party. (PERB Regulation 32620, subd. (c); Service Employees International Union
#790 (Adza) (2004) PERB Decision No. 1632-M, adopting dismissal letter at p. 1; Lake Tahoe
Unified School District (1993) PERB Decision No. 994, pp. 12-13; Riverside Unified School
District (1986) PERB Decision No. 562a, p. 8.)
2

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her and any other teacher when student disciplinary problems arise “that are beyond the scope
of the classroom teacher.”
On December 3, 2014, the District notified Zink that it had received student and parent
complaints about her and was referring investigation of those complaints to an outside
investigator, during which time she was to remain on paid administrative leave. The District
combined its investigation of the student/parent complaints with its investigation of Zink’s
harassment complaint for investigation with this outside investigator.
Between early December 2014 and April 24, 2015, Zink and her representative, Donald
Moore (Moore)3 wrote several letters to the District complaining about the slow pace of the
investigation. During this period, the District offered to settle the dispute by leaving Zink in
paid non-duty status until the end of the school year, provided she retire then. She refused this
offer.
On April 14, 2015, the District’s investigator met with Zink, ostensibly to interview her
about the October 6, 2014 incident with the student. Yet the investigator did not interview her,
but came to the meeting with a predetermined conclusion that she was innocent of the
allegations. Nevertheless, according to the investigator, Zink would receive a written warning,
allegedly in violation of provisions in the collective bargaining agreement (CBA) regarding
progressive discipline. The investigator further informed Zink that she would remain on
administrative leave while investigation of the student and parent complaints continued and
she would not be returning to La Jolla High. The investigator then spent the next 2-3 months
3 Moore is not identified as being associated with the exclusive representative for
certificated employees in the District, and his status as a recognized representative within the
meaning of EERA is therefore doubtful, as only an agent of the exclusive representative may
represent employees in investigative proceedings with the employer. (See Hartnell Community
College District (2015) PERB Decision No. 2452, pp. 34-38.)
3

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attempting to convince Zink to accept a voluntary transfer to another work site.4 As with the
similar offer made in December 2014, Zink rejected the investigator’s proposals.
On April 27, 2015, Zink filed the first of two grievances. This one alleged that the
District had violated various sections of the CBA related to evaluations, personnel files, and
placement of derogatory information in personnel files when, in the April 14 meeting with the
District’s investigator and Interim Human Resources Officer, Jose Gonzales, the District
produced derogatory material that she had not previously seen.
On May 7, 2015, Zink received the investigator’s report regarding the October 6, 2014
incident. The report concluded that she had exercised “extremely poor judgment” in
attempting to confiscate the device from the student by force. Zink disputed the conclusions
and findings of this report by a letter sent the following day.
Meanwhile, the District and Zink’s attorney were exchanging proposals concerning
Zink’s assignment for the 2015-2016 school year, as well as possible retirement. After Zink
repeatedly declined to accept a voluntary transfer, on or about August 29, 2015, the District
initiated the contractually-prescribed procedure for involuntary reassignment by giving Zink a
written notice.5 The notice proposed Zink’s reassignment from La Jolla High for the
remainder of the 2015-2016 school year, due to “repeated complaints about Zink’s teaching
methodology.” Zink was to remain on paid administrative leave until told to report to work.
4 As determined by the OGC, the investigator notified Zink’s attorney by e-mail on
April 17, 2015, that Zink would be receiving a letter of warning and a notice of proposed
reassignment away from La Jolla High to a non-teaching position. This e-mail also suggested
that her return to work could be hastened if she accepted a voluntary reassignment to a non-
teaching position.
5 The actual notice is dated September 2, 2015, a discrepancy which is not explained
and is not of any consequence for purposes of this decision.
4

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In response to Zink’s first grievance, the District determined on September 21, 2015,
that it had violated some provisions of the CBA by not timely informing her of parental
complaints. As a remedy, it would not consider those complaints in any disciplinary or
personnel action or in any evaluation of Zink.
Zink filed her second grievance on October 5, 2015, when Chuck Podhorsky
(Podhorsky), principal of La Jolla High School, cancelled a meeting with her to discuss the
proposed reassignment. This grievance also alleged that the District had violated the CBA’s
procedural requirements for involuntary reassignment. The meeting with Podhorsky was
ultimately held on October 14. However, the reason for the proposed transfer changed from
parental complaints to the “best interests of the District.” Zink protested this meeting the
following day by letter to Podhorsky and alleged that the involuntary transfer was in retaliation
for engaging in protected activities.
On November 5, 2015, Moore wrote to the District’s Human Resources director,
protesting the District’s failure to follow the CBA regarding involuntary reassignments and
asserting that the notice of involuntary transfer was done in retaliation for Moore’s letter to the
District of April 10, 2015, on Zink’s behalf.
On January 19, 2016, the District informed Zink that she would not be reassigned after
all and that she should report to work at La Jolla High on February 1, 2016. However, as
alleged in the third amended charge, on February 1, 2016, when Zink reported for duty, she
was again placed on paid administrative leave to investigate parent/student complaints against
her. On August 19, 2016, Zink received notice of an involuntary transfer to a District middle
school, to an unspecified assignment.6
6 These events—the February 1, 2016 administrative leave and the August 2016
involuntary transfer—were described in the third amended charge. However, the OGC did not
5

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THE DISMISSAL
Timeliness
This charge was filed on December 24, 2015. Therefore, any events occurring before
June 24, 2015 are untimely, unless the statute of limitations is tolled, either by statute or the
doctrine of equitable tolling. Applying the doctrine of statutory tolling,7 the OGC considered
each of Zink’s pre-June 24, 2015 allegations and concluded that the statute of limitations
should not be tolled. The first grievance did not allege or otherwise put the District on notice
that Zink claimed that the District retaliated against her because of her protected activity.
Instead, that grievance alleged only that the CBA provisions concerning evaluations and
personal files had been violated.
For reasons explained at pp. 2-3 of the dismissal letter, the OGC did permit the second
grievance to toll the statute of limitations for 30 days, moving the statute of limitations to
May 25, 2015. Even with tolling, however, the only timely charge was the August 29 notice of
proposed reassignment, which is timely even if the statute of limitations had not been tolled.
As for other alleged violations, such as Zink’s ineligibility to teach summer school and
the continuation of her administrative leave beyond April 14, 2015, the OGC determined Zink
consider these allegations in the dismissal letter, noting that they were the subject of a
subsequent UPC filed by Zink, LA-CE-6141-E. (Dismissal letter, fn. 6.) Even though the acts
were described in this charge, Zink does not list these actions in her description of the five
adverse actions she alleges are timely. This is perhaps explained by the fact that a complaint
issued in LA-CE-6141-E alleging that the District retaliated against Zink for filing this UPC,
filing grievances and generally objecting to her reassignment by placing her on a second
administrative leave on February 1, 2016, and then reassigning her to a middle school on
August 17, 2016. These allegations have been heard by a PERB administrative law judge
(ALJ) who issued a proposed decision on July 25, 2017.
7 Under EERA section 3541.5, subdivision (a)(2), the six-month statute of limitations
shall be tolled during the time it takes to exhaust the grievance machinery, provided it exists,
ends in binding arbitration and “covers the matter at issue” in the unfair practice charge. (Los
Angeles Unified School District (2015) PERB Decision No. 2359, p. 11 (Los Angeles).)
6

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had notice of these events more than six months before the charge was filed, as evidenced in
documents attached to her unfair practice charges. There was therefore no basis for reviving
the statute of limitations, according to the OGC.
Prima Facie Case
To state a prima facie case for retaliation, the charging party must allege facts that
support the conclusion that she exercised rights guaranteed under the EERA; that the District
knew that she exercised those rights; that the District took adverse action against her; and that
the District took the adverse action because of the exercise of protected rights. (Novato
Unified School District (1982) PERB Decision No. 210.) The OGC determined that Zink
engaged in protected activity of which the District was aware, but concluded that the
August 29 notice of proposed reassignment was not an adverse action. Because the notice of
proposed reassignment did not identify what Zink’s new position would be or where it would
be, the OGC was unable to determine whether this potential involuntary transfer/reassignment
would impose less favorable working conditions on Zink.
In addition, the OGC noted that the final decision regarding reassignment was up to the
Chief Human Resources Director, not the principal who authored the notice of proposed
reassignment.8 Trustees of the California State University (2009) PERB Decision No. 2038-H,
held a threat to take adverse action can itself be an adverse action if the threat gives the
employee “unequivocal notice that the employer has made a firm decision to take the
threatened action.” (Id. at p. 12.) Because the transfer was only a notice of intent, subject to
8 Procedures for involuntary transfers are governed by the CBA, which requires initially
that the employee be notified in writing by the supervisor and by a personal interview that
administrative transfer is being recommended and the reasons therefore. The next step
involves a meeting with the appropriate division administrator and the employee to discuss the
proposed transfer, and that administrator will determine whether the transfer should be made.
Finally, administrative transfers may be appealed through the grievance process.
7

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change in an appeal procedure, the OGC did not consider it unequivocal notice of a firm
decision.
On this basis the charge was dismissed.
DISCUSSION
Zink avers two main errors in the dismissal: (1) that the OGC mistakenly applied the
tolling doctrine to exclude the period of time from April 14, 2015, and otherwise erred in
determining that the statute of limitations did not extend to before May 25, 2015; and (2) the
OGC erred in concluding that the August 2015 notice of proposed reassignment was not an
adverse action.
Statute of Limitations
Zink contends that she did not allege that the District’s investigation of the October 6,
2014 incident with her student was an adverse action, as “it is not a topic covered in the SDEA
CBA.” (Appeal, p, 4.) She claims that she included allegations about this investigation as
evidence of animus. Zink also argues that the statute of limitations should be tolled as to the
events of April 2015 because the District fraudulently concealed that it was not in fact
conducting any investigation, but merely using the alleged investigation as an excuse to keep
her on administrative leave. Because Zink did not discover the fraudulent concealment until
March 2016, when an investigator from the Department of Fair Employment & Housing
(DFEH)9 revealed the concealment, she argues the statute of limitations should be tolled.
Zink further asserts that tolling applies to her first grievance because both it and the
unfair practice charge allege the District wrongfully used “hidden” parent complaints as a
reason to involuntarily transfer her. According to Zink, the grievance and the unfair practice
9 Zink had filed a discrimination charge with the DFEH on March 16, 2015.
8

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charge arose from the same circumstances and the filing of the grievance therefore placed the
District on notice of the dispute described in the unfair practice charge, citing Victor Valley
Joint Union High School District (1982) PERB Decision No. 273. Simply because the
grievance did not use the word “retaliation” should not prevent the timeline from being tolled,
according to Zink.
Zink further contends that her second grievance, filed October 5, 2015, was simply an
attempt to enforce the settlement of the first grievance. The first grievance was effectively “in
abeyance” over the summer break (June 17, 2015 through September 1, 2015), so Zink argues
that the abeyance period should toll the statute of limitations an additional 76 days.
Specifically with respect to Zink’s allegation that she was prevented from teaching
summer school,10 Zink asserts on appeal that the OGC failed to consider that teachers could
apply for summer school assignments up until June 22 and that she in fact attempted to apply
in June.
We agree with the OGC’s determination regarding tolling and other conclusions
regarding the statute of limitations. PERB’s statutory tolling rule is found at EERA section
3541.5, subdivision (a)(2). This subdivision prohibits issuance of a complaint:
against conduct also prohibited by the provisions of the
agreement between the parties until the grievance machinery of
the agreement, if it exists and covers the matter at issue, has been
exhausted. . . . The board shall, in determining whether the charge
was timely filed, consider the six-month limitation set forth in
this subdivision to have been tolled during the time it took the
charging party to exhaust the grievance machinery.
(Ibid.)
10 The OGC dismissed this allegation as untimely because there was a letter attached to
the UPC from Zink objecting to her determined ineligibility for summer school. The letter was
dated March 9, 2015 and the OGC therefore determined that the statute of limitations for that
allegation began on that date, making the charge untimely.
9

PERB has held that the statute of limitations will be tolled only if the grievance raises
the same issues that have been raised in the unfair practice charge. Thus, tolling has been
denied where the grievance over negative evaluations and termination failed to allege a
violation of the non-discrimination clause of the CBA. (Peralta Community College District
(2001) PERB Decision No. 1462: “PERB will not toll the statute of limitations in a
discrimination case when the District is unaware of the [specific] discrimination allegation.”
(Id., at warning letter, p. 3.) More recently in Los Angeles, supra, PERB Decision No. 2359,
the Board permitted statutory tolling even where the grievance itself failed to allege retaliation,
but where the District was placed on notice of the employee’s retaliation claim through
correspondence. (Id., p. 11.)
The OGC followed these cases, among others, and correctly applied the law to the facts
as alleged by the charge, as amended. We therefore affirm the dismissal of the pre-August 29,
2015 allegations as untimely because the statute of limitations was not tolled by Zink’s
grievances.
We also reject Zink’s assertion that the OGC erred by refusing to consider the fact that
teachers could continue to apply for summer school through June 2015 and that she in fact did
so. As the dismissal letter notes, Zink initially protested her ineligibility to apply for summer
school in March 2015. That is when she was on notice of this alleged violation. She cannot
revive the statute of limitations by applying a few months later. (County of Riverside (2011)
PERB Decision No. 2176-M.)
We also reject Zink’s assertion that the District fraudulently concealed the fact that it
was not actually conducting an investigation but using it as an excuse to keep her on
administrative leave. Zink alleged in her unfair practice charge, as amended, that the
investigator informed her on April 14, 2015, that she would remain on administrative leave
10

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even though he believed she was innocent of the charges regarding the October 2014 incident
with the student. To the extent there was something allegedly illegitimate about the District’s
investigation, Zink was therefore on notice of the facts necessary to make this allegation on
April 14, 2015, and the statute of limitations on such a claim began then.
Adverse Action
Zink asserts that the OGC erred by concluding that the notice of proposed reassignment
was not an adverse action. If the OGC’s conclusion is allowed to stand, according to Zink, it
would be impossible for a threat of adverse action to ever be considered an unfair practice.
Zink concedes that the District did not initially follow through with the proposed reassignment,
but argues that the subsequent 2016 transfer (the subject of the complaint in PERB Case No.
LA-CE-6141-E) demonstrates that the first attempt was in fact a “firm” decision that had
simply been postponed.
We find merit in this argument. Our cases concerning adverse action, beginning with
Palo Verde Unified School District (1988) PERB Decision No. 689, emphasize an objective
test in determining whether a particular action was adverse to employment interests, i.e.,
whether a reasonable person under the same circumstances would consider the action to have
an adverse impact on the person’s employment. (Id. at p. 12; Newark Unified School District
(1991) PERB Decision No. 864, p. 14 (Newark); Oakland Unified School District (2004)
PERB Decision No. 1645).11 PERB has also held that a threatened adverse action is a separate
potential unfair practice from the completed action. (Regents of the University of California
(2004) PERB Decision No. 1585-H (Regents); Monterey Peninsula Unified School District
(2014) PERB Decision No. 2381, p. 35.)
11 Newark, supra, PERB Decision No. 864 found that an involuntary transfer from high
school to junior high was an adverse action.
11

While “a threat may constitute an adverse action even if the employer never follows
through with the threatened action,” for a threat to be actionable it must give the employee
unequivocal notice that the employer has made a firm decision to take the threatened action.
(Trustees of the California State University, supra, PERB Decision No. 2038-H, p.12.)
However, in County of Merced (2008) PERB Decision No. 1975-M, at page 3, “unequivocal
notice” was described as initiation of formal disciplinary procedures, such as a notice of intent
to suspend or a notice of intent to dismiss a certificated employee pursuant to Education Code
requirements. In contrast, a supervisor’s isolated comment that she would be “seeking adverse
action against” the employee, without specifics either orally or in writing, did not constitute
unequivocal notice of an adverse action. (Ibid.)
While the notice of August 29, 2015 was not a final decision, it was the first step in a
process the District was required to initiate under the CBA before reassigning Zink. (See
dismissal letter, p. 5, fn. 5 for the outline of the process.) This is analogous to the dismissal
process for certificated employees, which requires an initial notice of intent to dismiss,
followed by due process steps ultimately leading to a decision by a tripartite panel. While a
school district could always change its mind as this process unfolds, it cannot be seriously
argued that the initiation of the dismissal process is not an action that a reasonable person
would find adverse. (See Monterey Peninsula Unified School District, supra, PERB Decision
No. 2381 [statute of limitations begins to run when the certificated employee has notice of
intent to dismiss]; Regents, supra, PERB Decision No. 1585-H [threat to terminate and actual
termination are separate violations of the Higher Education Employment Relations Act].)
One likely reason there is a process embedded in the CBA in the first place is because
certificated employees undoubtedly consider the disruption of being involuntarily transferred
or reassigned to be onerous, often carrying the stigma of unsatisfactory performance, as in this
12

case. The absence of the factors described in Fresno County Office of Education (2004) PERB
Decision No. 1674 (longer commute, more difficult students, etc.) does not preclude
concluding especially at the pleading stage, a reasonable person under the same circumstances
as Zink would consider the action adverse. Several factors here support a conclusion that the
notice of proposed reassignment given to Zink was objectively adverse to her employment
conditions.
First, as prescribed in the CBA, the notice of proposed reassignment is the required
initial step in a formal procedure initiated by the District to transfer or reassign Zink. While
the District could always alter its proposed course, the same can be said for a notice of intent to
dismiss a certificated employee under the Education Code. Yet we have held that the notice
and the actual dismissal are separate unfair practices. (Regents, supra, PERB Decision
No. 1585-H.)
Second, the context of Article 12.7, Involuntary Transfers, indicates that such transfers
are initiated to address performance problems. For example, Article 12.7.1 states:
“Administrative transfers [used interchangeably with “involuntary transfers”] provide a
process to address behavior/actions and their impacts that cannot be addressed through
[evaluation or discipline articles.]” Article 12.7.1.2.1 provides: “The behavior/actions that
lead to the consideration of an administrative transfer must be based on the negative impact of
the behavior/action and in the best interests of the District, school, pupils, and the unit
member.” The administrator must meet with the teacher “to discuss the behavior/actions, its
negative impact and the possible consequences of continuing the behavior,” including the
possibility of a transfer. (Article 12.7.1.2.3.) The teacher must be notified of expectations for
future behavior and be informed of “supports that will be provided to mitigate the
behavior/action.” (Id. at section (b).) These provisions demonstrate that the District
13

considered involuntary reassignment or transfer a quasi-disciplinary action, one that carries the
stigma of unsatisfactory performance. (Jurupa Unified School District (2012) PERB Decision
No. 2283, pp. 18-19 [annual evaluation for permanent employee considered adverse action
because of the stigma of unsatisfactory performance associated with the more frequent
evaluation].)
The actual notice Zink received, dated September 2, 2015, bears this out. It reads:
“I [school principal] will be recommending that you be
reassigned to a different work site for the balance of school year
2015-2016. ¶ The reason for your reassignment is as follows:
The school received repeated complaints about your teaching
methodology from the parents of students in your classes.”
Zink was therefore called upon to defend herself against the claim of unsatisfactory teaching
methodology, requiring her to meet with various administrators to make her defense. Even
though this notice did not threaten Zink with a loss of her job or a reduction in pay, it would be
readily seen by a similarly-situated certificated employee as an accusation of professional
incompetence requiring a formal defense or, at minimum, likely affecting future employment
decisions. (Berkeley Unified School District (2015) PERB Decision No. 2411, p. 22; City of
Long Beach (2008) PERB Decision No. 1977-M, p. 13.)
Complaints about Zink’s teaching methods in the notice echo what the investigator told
her the previous April—that she would remain on administrative leave while investigation of
parent complaints continued and she would not be returning to La Jolla High. Add to this the
District’s numerous attempts to obtain Zink’s retirement, and that she received the notice after
she steadfastly refused to accept a voluntary transfer, it seems clear that this notice was an
adverse action within our established case law.
For these reasons, we reverse the OGC’s dismissal of the allegation regarding the
notice of proposed reassignment and remand this charge to the OGC for a determination of
14

whether there are sufficient allegations to support a nexus between Zink’s protected activities
and this adverse action.
ORDER
The unfair practice charge in Case No. LA-CE-6095-E is hereby partially dismissed as
to those allegations of illegal conduct occurring before May 25, 2015. The charge is remanded
to the Office of the General Counsel for further investigation of whether the unfair practice
charge as amended alleges a prima facie case that the August 29, 2015 notice of proposed
reassignment was issued in retaliation for Zink’s protected activities.
Chair Gregersen and Member Banks joined in this Decision.
15

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1139
PER.B 	Fax: (510) 622-1027
October 31, 2016
Mary Elizabeth Bain
Re: Emma Yvonne Zink v. San Diego Unified School District
Unfair Practice Charge No. LA-CE-6095-E
DISMISSAL LETTER
Dear Ms. Bain:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 24, 2015. Emma Yvonne Zink (Zink or Charging Party)
alleges that the San Diego Unified School District (District or Respondent) violated the
Educational Employment Relations Act (EERA or Act)' by retaliating against her for
exercising rights under EERA.
Charging Party was informed in the attached Warning Letter dated March 15, 2016, that the
charge did not state a prima facie case. Charging Party was advised that, if there were any
factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, she should amend the charge. Charging Party was further advised that, unless she
amended the charge to state a prima facie case or withdrew it on or before March 29, 2016, the
charge would be dismissed.
An extension of time was granted, and a timely First Amended Charge was filed on April 25,
2016. A Second Amended Charge was filed on July 5, 2016, and a Third Amended Charge
was filed on August 25, 2016.
The original charge alleged that the District took 17 actions against Zink, which were either in
retaliation for or interference with her protected activity. The Warning Letter concluded that
many of these actions were untimely because they took place more than six months before the
charge was filed, and that the remaining timely actions were not adverse to Zink's
employment.
The amended charges withdraw some of the original 17 allegations and provide additional
information, clarification, and legal argument regarding the remaining allegations. The
remaining allegations concern: (1) an April 14, 2015 investigative meeting; (2) the
EERA is codified at Government Code section 3540 et seq. PERB's Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq. The text of the EERA
and PERB Regulations may be found at www.perb.ca.gov.

LA-CE-6095-E
October 31, 2016
Page 2
continuation of Zink's administrative leave, following the April 14, 2015 meeting; (3) a letter
summarizing the April 14, 2015 meeting, which Zink received on May 7, 2015; (4) Zink's
ineligibility to teach summer school for 2015; and (5) an August 29, 2015 notice of proposed
reassignment
I. 	Statute of Limitations
As explained in the Warning Letter, the charging party's burden includes alleging facts
showing that the unfair practice charge was timely filed; i.e., that the alleged unfair practice
occurred no more than six months prior to the filing of the charge. (Los Angeles Unified
School District (2007) PERB Decision No. 1929; City of Santa Barbara (2004) PERB
Decision No. 1628-M.) Because the charge was filed on December 24, 2015, events that took
place before June 24, 2015 are untimely unless an exception to the statute of limitations
applies.
A. 	Statutory Tolling
EERA provides for the tolling of the statute of limitations "during the time it took the charging
party to exhaust the grievance machinery." (Gov. Code, $ 3541.5, subd. (a)(2).) "[T]he
statutory tolling doctrine only applies where the grievance and the later-filed charge raise the
same issue." (Los Angeles Unified School District (2014) PERB Decision No. 2359 (Los
Angeles).) In general, a grievance that does not specifically allege retaliation for protected
activity does not toll the statute of limitations for filing a PERB charge regarding that
allegation. (Peralta Community College District (2001) PERB Decision No. 1462 (Peralta).)
The Board has indicated that tolling may still apply if the employer is "otherwise informed"
that the grievance includes a retaliation claim. (Los Angeles, supra, PERB Decision No.
2359.) In Los Angeles, supra, an employee received a letter of reprimand, which he claimed
was in retaliation for his protected activity. The employee's supervisor later acknowledged
this assertion in a memorandum, which was in turn attached to the employee's subsequent
performance evaluation. The employee then filed a grievance challenging the performance
evaluation, but did not allege retaliation for protected activity. Nevertheless, the Board
concluded that the employer was otherwise informed of the retaliation allegation, such that the
grievance tolled the statute of limitations.
Zink argues that the statute of limitations was tolled while her grievances against the District,
filed April 27, 2015 and October 5, 2015, were pending. Although neither grievance alleged
that Zink was subjected to adverse actions in retaliation for protected activity, or that the
District interfered with her rights under EERA, Zink points out that she placed the District on
notice of her retaliation allegations in letters dated October 15, 2015 and November 5, 2015,
both of which referred to her then-pending October 5, 2015 grievance.
Zink's October 15, 2015 letter does not support the application of tolling. In that letter, Zink's
only claim of "retaliation" concerned her involuntary transfer; no other adverse actions were
mentioned. Thus, the letter "otherwise informed" the District only of Zink's allegation that the

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Page 3
involuntary transfer was retaliatory. But, as concluded in the Warning Letter, that allegation is
timely without tolling.
The analysis is different for Zink's November 5, 2015 letter. That letter included a lengthy
summary of Zink's allegations against the District, including those surrounding the District's
investigation and its efforts to induce her to agree to a voluntary transfer. Therefore, this letter
"otherwise informed" the District of Zink's view that her grievance included allegations that
she had been retaliated against for protected activity.
Zink argues that as a result of her November 5, 2015 letter, the statute of limitations should be
tolled not only for the entire time her October 5, 2015 grievance was pending, but also for the
time her April 27, 2015 grievance was pending. This argument is rejected, because Zink did
not place the District on notice of her allegations of retaliation and interference with protected
activity prior to her November 5, 2015 letter. Thus, prior to that letter, Zink was not pursuing
those allegations through the grievance process. (See Santa Monica-Malibu Unified School
District (2000) PERB Decision No. 1389 [tolling applies only while a claim is being
pursued].)
Therefore, statutory tolling applies for the 30-day period between Zink's November 5, 2015
letter and the conclusion of the grievance process, on December 4, 2015. Actions of which
Zink knew or should have known within 6 months and 30 days before the original charge was
filed, i.e., no later than May 25, 2015, will be considered timely, while actions of which she
knew or should have known prior to that date will be dismissed. Accordingly, the only timely
allegation in the Third Amended Charge is the August 29, 2015 notice of proposed
reassignment.
Zink claims that her ineligibility for summer school occurred in "May/June 2015." This
assertion is contradicted by the facts alleged in the original charge, which show that Zink
Zink also argues, based on Fillmore Unified School District (2013) PERB Decision
No. HO-U-1093-E, a final decision by a PERB administrative law judge (ALJ), that
specifically alleging retaliation in a grievance is not a requirement for equitable tolling. In that
case, the ALJ concluded that, although the charging parties did not allege retaliation for
protected activity in any of their eight grievances, their employer was nevertheless informed of
the "fundamental basis" of the charge: that they were improperly transferred because of their
attempts to establish a charter school.
Reliance on this ALJ decision is misplaced for two reasons. First, it was not adopted
by the Board, and is therefore not precedential. (PERB Regulation 32215.) Second, it is
factually distinguishable. It is undisputed that neither of Zink's grievances informed the
District of a dispute regarding the adverse actions for which Zink seeks equitable tolling. The
grievances were concerned with the District's failure to provide Zink copies of student and
parent complaints and with Podhorsky's notice of proposed reassignment, respectively. Thus,
they did not inform the District of the "fundamental basis" of any other allegations.

LA-CE-6095-E
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objected to her ineligibility in a March 9, 2015 letter. Therefore, the statute of limitations for
this event began to run not in May or June of 2015, but on March 9, 2015. Accordingly, this
allegation is properly dismissed as untimely.
Zink also claims that her allegations regarding the continuation of her administrative leave
beyond April 14, 2015 are timely because of information she received in 2016 after the charge
was filed. According to Zink, this information demonstrated that the District did not conduct
an investigation of the student and parent complaints mentioned in the District's December 3,
2014 letter. However, Zink alleges in the Third Amended Charge that at an April 14, 2015
investigatory meeting, she "became aware the District was not investigating the complaints as
the District claimed in its December 2014 letter to Zink, and instead was now attempting to
circumvent contractual CBA requirements regarding administrative investigations, the
handling of complaints against certificated employees, and the maintenance and use of
derogatory material as related to certificated employees." Therefore, the statute of limitations
for this allegation began to run on April 14, 2015. Zink's later discovery of additional
evidence regarding the District's lack of investigation does not revive the statute of limitations.
(Cf. State of California (2001) PERB Decision No. 1459-S [belated discovery of the legal
significance of the conduct underlying the charge does not revive the statute of limitations].)
Therefore, this allegation is dismissed as untimely.
II. 	Prima Facie Case
As noted above, the Warning Letter concluded that Zink adequately alleged that she engaged
in protected activity and that the District had knowledge of that activity, but not that the timely
events alleged in the charge qualified as adverse actions under an objective standard."
As explained in the Warning Letter, the test for whether an action is adverse is "whether a
reasonable person under the same circumstances would consider the action to have an adverse
impact on the employee's employment." (Newark Unified School District (1991). PERB
Decision No. 864.) The harm alleged must be "actual and not merely speculative." (County of
Tehama (2010) PERB Decision No. 2122-M.)
As noted, the only remaining timely allegation is that on August 29, 2015, La Jolla High
School (LJHS) Principal Chuck Podhorsky issued Zink a notice of proposed reassignment.
The Warning Letter concluded that this was not an adverse action, for two reasons. First, an
involuntary transfer is an adverse action when the new position has less favorable working
This fact, obtained from a copy of the letter attached to the original charge, was
summarized in the Warning Letter. (See Los Angeles Community College District (2000)
PERB Decision No. 1377 [the Board agent may rely on documents provided by the charging
party that contradict factual allegations in the charge].)
Footnote 5 of the Warning Letter noted that some of Zink's activities were not
protected, for instance, a letter in which Zink disputed whether she should receive a verbal
warning or a written one. The conclusion that this was not protected activity was incorrect.
(Walnut Valley Unified School District (2016) PERB Decision No. 2495.)

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Page 5
conditions (see, c.g., County of Santa Barbara (2012) PERB Decision No. 2279-M (Santa
Barbara); Fresno County Office of Education (2004) PERB Decision No. 1674), but the notice
in this case did not identify Zink's new position. Second, a threat to take an adverse action is
itself an adverse action when it "give[s] the employee unequivocal notice that the employer has
made a firm decision to take the threatened action" (Trustees of the California State University
(2009) PERB Decision No. 2038-H), but the notice from Podhorsky made clear that the final
decision whether to transfer Zink was not Podhorsky's. Rather, under the CBA, the final
decision would be made by District Chief Human Resources Officer Tim Asfazadour
(Asfazadour). Indeed, as the Warning Letter noted, Asfazadour ultimately determined not to
transfer Zink.
In the amended charges, Zink includes the following evidence intended to demonstrate that the
District had reached a firm decision to transfer her: (1) a statement in the District's August 5,
2015 response to the charge Zink filed with the Department of Fair Employment and Housing
(DFEH), that "Zink will be notified of her reassignment once the 2015-2016 academic school
year begins in September, 2015"; (2) a statement in the District's March 8, 2016 response to a
request from DFEH for additional information, that "[action on the reassignment
recommendation was put on hold pending efforts to identify a mutually agreeable new work
location. When these efforts proved unsuccessful, the involuntary transfer process was
started"; (3) evidence that Zink's position at LJHS was filled by another employee while she
The process for administrative transfers is described as follows in section 12.7.1.1 of
the CBA:
12.7.1.1.1. 	Before the request for administrative transfer is acted upon, the
supervisor shall advise the unit member through a personal
interview and in writing that an administrative transfer is being
recommended and the reasons therefor.
12.7.1.1.2. 	The appropriate division administrator(s) shall, upon request,
meet with the unit member to discuss the proposed administrative
transfer.
12.7.1.1.3. 	The appropriate division administrator(s) will determine whether
the administrative transfer should be made.
12.7.1.1.4. 	Administrative transfers may be appealed through the grievance
procedure.
" Zink's subsequent UPC, Case No. LA-CE-6141-E, alleges that, after Asfazadour
decided not to transfer Zink, the District took adverse action against her by: (1) placing her in a
non-teaching position at LJHS; (2) placing her on administrative leave again; (3) issuing a new
notice of proposed reassignment away from LJHS; and (4) reassigning her to Marshall Middle
School. Because those allegations are not included in the present charge, they are not
considered here.

LA-CE-6095-E
October 31, 2016
Page 6
was on administrative leave, although Zink alleges that this employee "has since been fired";
(4) the fact that Asfazadour had notice of Podhorsky's proposal to reassign Zink, but did not
intervene until January 14, 2016; and (5) the fact that the only academically comparable high
school to which Zink could be transferred is 13 miles farther from her residence than LJHS.
The relative distances of the District's high schools from Zink's residence establish that the
reassignment might be an adverse action. (Fresno County Office of Education, supra, PERB
Decision No. 1674.) However, the other newly alleged facts do not demonstrate that the
District provided unequivocal notice of a firm decision to transfer Zink. The statements in the
District's responses to Zink's DFEH charge were not made to Zink herself, and, according to
Zink, she did not discover them until the District responded to her public records request on
April 29, 2016. Moreover, those statements do nothing more than state that the District
intended to initiate the involuntary transfer process. They do not indicate that Asfazadour had
already reached a final decision through that process.
The fact that the District filled Zink's position while she was on administrative leave does not
appear to indicate that she could not have returned to that position or another one at LJHS.
Indeed, Zink alleges that the individual who filled her position has since been fired.
Finally, as for Asfazadour's failure to intervene, the CBA did not require Asfazadour's
involvement until after Zink objected to the transfer, Podhorsky met with Zink to discuss the
transfer, and Podhorsky nevertheless determined to proceed. It cannot be concluded that
merely by failing to act sooner, Asfazadour somehow ratified Podhorsky's decision. (See West
Contra Costa County Healthcare District (2011) PERB Decision No. 2164-M.)' Therefore,
Zink has not established that the August 29, 2015 notice from Podhorsky gave her unequivocal
notice of a firm decision to transfer her, and this allegation is dismissed.
Conclusion
Because the present charge does not adequately allege that Zink suffered an adverse action
within the statute of limitations period, the charge is hereby dismissed.
Right to Appeal
Pursuant to PERB Regulations, Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs., tit. 8, $ 32635, subd. (a).) Any document filed with the
"In the Second Amended Charge, Zink suggests that Asfazadour ultimately decided not
to transfer her only because she had filed the original charge in this matter three weeks earlier,
on December 24, 2015. This speculation regarding Asfazadour's motive is not sufficient to
state a prima facie case. (State of California (Department of Food and Agriculture) (1994)
PERB Decision No. 1071-S.) But even if this speculation were accepted, it would be an
allegation that the District decided not to take an adverse action because Zink engaged in
protected activity. This is not an unfair practice.

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Page 7
Board must contain the case name and number, and the original and five (5) copies of all
documents must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8, $8 32135, subd. (a) and 32130; see also Gov. Code, $ 11020, subd.
(a).) A document is also considered "filed" when received by facsimile transmission before
the close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. (Cal. Code
Regs., tit. 8, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, $8 32090 and
32130.)
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
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Cal. Code Regs., tit. 8, $ 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $ 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs., tit. 8, $ 32135, subd. (c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs., tit. 8, $ 32132.)

LA-CE-6095-E
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Page 8
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
J. FELIX DE LA TORRE
General Counsel
By
Joseph Eckhart
Regional Attorney
Attachment
cc: Sandra T.M. Chong, Assistant General Counsel

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1139
Fax: (510) 622-1027
March 15, 2016
Mary Elizabeth Bain
Re: 	Emma Yvonne Zink v. San Diego Unified School District
Unfair Practice Charge No. LA-CE-6095-E
WARNING LETTER
Dear Ms. Bain:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 24, 2015. Emma Yvonne Zink (Zink or Charging Party)
alleges that the San Diego Unified School District (District or Respondent) violated the
Educational Employment Relations Act (EERA or Act)' by retaliating against her for
exercising rights under EERA.
FACTS AS ALLEGED
Zink is a high school math teacher assigned to the District's La Jolla High School (LJHS). Her
exclusive representative is the San Diego Education Association (SDEA). SDEA and the
District are parties to a collective bargaining agreement (CBA) that establishes Zink's terms
and conditions of employment.
On September 30, 2014, Zink received an e-mail message from LJHS Vice Principal Anne
Mccarty (Mccarty) asking to meet with Zink regarding "the multiple (5) 2 day suspension
referrals you wrote during your 3rd period class yesterday for varying student offenses."
On October 2, 2014, Zink met with Mccarty. Afterwards, Zink sent Mccarty a letter
responding to the issues discussed during the meeting, specifically, Mccarty's claim that Zink
was issuing too many suspension referrals. Among other things, Zink protested the lack of
written guidance provided to teachers regarding suspension referrals.
On October 6, 2014, a student in one of Zink's classes was using an electronic device in
violation of LJHS and District policy. According to a written statement Zink submitted that
day, Zink asked the student to stop, but he did not. Zink then attempted to confiscate the
device. The student reacted by attempting to hit or push Zink. Zink attempted to hold the
EERA is codified at Government Code section 3540 et seq. PERB's Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq. The text of the EERA
and PERB Regulations may be found at www.perb.ca.gov.

LA-CE-6095-E
March 15, 2016
Page 2
student's arms to avoid being hit. The student reported that Zink scratched him during this
exchange. According to her written statement, Zink was concerned about protecting herself
from aggravating a serious pre-existing injury.
On October 8, 2014, Zink sent a letter to various District officials claiming that she was "being
targeted and not supported" by the LJHS administration with regard to the disciplinary issues
in her classes.
On October 9, 2014, LJHS Principal Chuck Podhorsky (Podhorsky) hand-delivered Zink a
letter from Erin Houston (Houston), a District human resources staff member, dated October 8,
2014. The letter informed Zink of her placement on paid administrative leave, pending an
investigation into the October 6, 2014 incident. The letter further informed Zink that she was
"expected to be available if needed throughout this investigation" and that she was prohibited
from engaging in outside employment during her "work hours as a secondary teacher." In
addition, the letter stated:
You are not to have any contact with any staff member, students or parents at La
Jolla High School during the course of this investigation or while you are on
leave. Should you make contact with any of the above, we will consider this as
misconduct, hindering a fair and thorough investigation.
On October 13, 2014, Zink submitted to the District an Employee Complaint Alleging
Harassment or Discrimination." The complaint stated:
I allege a trend or pattern of apparent harassment, discrimination, retaliation,
intimidation, hostility, and offensive work environment perpetrated by the La
Jolla High School administration.
As a remedy, the complaint requested that the District:
Cease and desist the harassment and discrimination and provide support for
extensive discipline issues in my Period 3 class, specifically, and provide
support for any other classroom disciplinary problems that may arise that are
beyond the scope of the classroom teacher.
Zink refers to this as a "7110 Complaint" because it is provided for in the District's
Administrative Procedure 7110. Although not provided in the charge, this procedure appears
to be available on the District's website at https:/www.sandiegounified.org/node/490.
Administrative Procedure 7110's stated purpose is "[to outline administrative procedures
governing the ensuring of fair, equitable, and timely resolution of employee complaints
alleging harassment or discrimination on the basis of race, religion, creed, color, marital status,
veteran status, sex, sexual orientation, gender, gender identity, gender expression, ancestry,
national origin or ethnic group identification, age, mental or physical disability."

LA-CE-6095-E
March 15, 2016
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The complaint designated Donald Moore (Moore), identified elsewhere in the charge as
"Zink's Labor Relations Specialist," as her representative for the complaint.
Also on October 13, 2014, Moore sent a letter to Houston, stating:
I have been retained by La Jolla faculty member, Emma Zink, to represent her
interests relative to investigative meetings/investigation(s) and any subsequent
disciplinary action that may result.
The letter does not identify Moore by job title or organizational affiliation. The letter goes on
to invoke the California Public Records Act (CPRA) to request records regarding the District's
investigation of Zink. The letter indicates that copies were sent to various District officials, as
well as to "Jonathan Mello, SDEA Union Representative."
On October 27, 2014, Moore, this time identifying himself as a "Labor Relations Specialist,"
sent a letter to Houston requesting an update on the status of Zink's October 13 harassment
complaint and his October 13, 2014 CPRA request.
On November 17, 2014, Houston contacted Moore by telephone with a settlement offer, that
Zink remain on paid administrative leave through June 30, 2015, and then retire from the
District. Zink rejected the offer.
On November 21, 2014, Zink submitted a Citizen Complaint Form to the County of San
Diego's Civil Grand Jury, alleging "[academic fraud" by Podhorsky, Mccarty, and other
District employees.
On December 3, 2014, Zink received a letter from Houston stating that both her harassment
complaint and various "student and parent complaints" had been referred to an outside
investigator for investigation, and that she would remain on administrative leave during the
investigation. The letter again informed Zink that she was prohibited from engaging in outside
employment during her working hours during the leave. In addition, the letter directed Zink
'not to have any contact with any staff member, students or parents at La Jolla High School
during the course of this investigation or while you are on leave regarding the investigation or
the allegations."
On December 4, 2014, Zink sent a letter to Podhorsky threatening to "commence civil
proceedings and take other actions" unless the District stopped the "fraudulent and improper
use" of her name in its online grading and attendance systems.
On December 5, 2014, Moore sent a letter to Houston expressing various concerns regarding
the District's actions.
On January 22, 2015, a meeting was held with Moore, Zink, Houston, and an attorney for the
District. At the meeting, Moore asked Houston about the results of a police investigation into
allegations of child abuse from the October 6, 2014 incident. Houston denied knowledge of
those results, even though the San Diego Police Department had notified the District a week

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March 15, 2016
Page 4
earlier regarding the result of its investigation. Houston made a second settlement offer to
Zink, proposing that she remain on paid administrative leave through June 30, 2016 and then
retire from the District. Zink rejected the offer.
On January 27, 2015, Zink and Moore reviewed Zink's District personnel file.
On January 28, 2015, Moore sent a letter to Houston to "raise some lingering concerns about
this whole process." Among other things, Moore noted that the District's directives that Zink
refrain from discussing the pending investigations were inconsistent with "recent Public
Employment Relations Board (PERB) and National Labor Relations Board (NLRB)
decisions." Moore asserted that if the District's outside investigator "is allowed to depose
witnesses and collect evidence, Ms. Zink and her defense team has the right to collect evidence
and depose said witnesses." Moore also asserted that the District's directives had a "chilling
effect" on staff members, students, or parents who might want to assist Zink's defense.
On February 17, 2015, Zink sent a letter to Houston inquiring about the status of the District's
investigations, and stating her right to ask for assistance with her discrimination complaint
from the California Department of Fair Employment and Housing (DFEH).
On February 23, 2015, Zink sent another letter to Houston. Among other things, the letter
objected that the District's investigator had not yet met with her in the nearly five months she
had been on administrative leave. Zink also objected that the District's directives not to
contact parents prevented her from communicating with a parent who had asked Zink to
provide a letter of recommendation for a student.
On March 2, 2015, Houston sent a letter to Zink to "amend" the directive contained in
Houston's October 8, 2014 letter to state:
You cannot have contact with any staff, students or parents at La Jolla High
School about the allegations that are being investigated. Those allegations
include that you grabbed a student's arm and scratched him and that you created
an unsafe learning environment in one of your classes. Should you do so, we
will consider this misconduct, hindering a fair and thorough investigation. This
in no way limits your rights to discuss those allegations with your respective
representatives.
On March 9, 2015, Zink sent a letter to Houston objecting that the District had, among other
things, "defamed" her by accusing her of child abuse, prevented her from applying to be
District Teacher of the Year, failed to investigate her discrimination complaint, prevented her
from writing letters of recommendation, continued to use her name in its online grading
system, and prevented her from applying to earn additional income by teaching summer
school.
On March 16, 2015, Zink filed a discrimination complaint with DFEH.

LA-CE-6095-E
March 15, 2016
Page 5
On March 27, 2015, Houston informed Moore that due to problems with the outside
investigator, an Interim Human Resources Officer, Jose Gonzales (Gonzales), would be
conducting the investigations regarding Zink.
On March 30, 2015, Gonzales sent an e-mail message to Zink and Moore to schedule an
interview with Zink. A meeting was originally scheduled for April 7, 2015, but then
rescheduled for April 14, 2015.
On April 10, 2015, Moore sent a 24-page letter to Houston asserting in detail violations of a
number of statutes, regulations, and policies by the District and LJHS, some directly related to
Zink and others not. Among these violations, Moore claimed that the District was required to
address any issues relating to classroom safety through the teacher evaluation process, based
on "California law, [District] policies and procedures, Article 14 of the San Diego Education
Association (SDEA) Collective Bargaining Agreement (CBA), and case law." Moore also
noted that the "illegal directive" in the District's October 8, 2014 letter prevented Zink from
submitting her "Teacher Assignment Preferences" for the 2015-2016 school year.
On April 14, 2015, Gonzales met with Zink and Moore. The charge states that Gonzales
"came to the meeting with his 'findings' already determined," and did not allow Zink to
provide witnesses or witness statements. Gonzales stated that Zink would be involuntarily
transferred from LJHS.
On April 17, 2015, Gonzales sent an e-mail message to Jennifer Lynch (Lynch), an attorney
representing Zink at the time. Gonzales stated that Zink would be receiving a letter of warning
regarding the October 6, 2014 incident, and confirmed that she would receive a notice of
proposed reassignment away from LJHS to a non-teaching position. Gonzales suggested that
Zink's return to work could be hastened if Zink was willing to accept a reassignment to a non-
classroom position.
On April 20, 2015, Gonzales sent another e-mail message to Lynch responding to some of
Zink's concerns regarding letters of recommendation and the District Teacher of the Year
award. Gonzales also stated that if Lynch would confirm Zink's willingness to accept a non-
classroom position, it would be "unnecessary to comply with the teacher collective bargaining
agreement process, a more time consuming process, for notifying a teacher that she is being
reassigned to another location."
On April 22, 2015, Lynch responded to Gonzales by e-mail message, stating that Zink would
prefer a teaching assignment, and proposing a verbal warning rather than a letter of warning.
On April 27, 2015, Zink filed a grievance claiming that the District had violated sections 14.9,
14.10, and 14.11 of the CBA, which respectively concern evaluations, personnel files, and
placement of derogatory material in personnel files. As the "specific grounds for the
grievance," the grievance alleged:
The District, by and through its representatives, violated the above mentioned
articles when it produced derogatory material in a meeting with Jose Gonzales

LA-CE-6095-E
March 15, 2016
Page 6
on April 14, 2015. Twice during the District's investigation we requested
information from Ms. Zink's District and Site Personnel files. There was no
derogatory material given to us. With the investigation almost over the District
is trying to introduce derogatory material from some secret file. Further the
District has [proposed] possible discipline based on this illegal material.
On April 28, 2015, Gonzales informed Lynch that the District was exploring assignments that
would allow Zink to interact with students. Gonzales stated that this would need to be resolved
promptly to avoid having to comply with the CBA's procedures on reassignment. Gonzales
also asked whether a favorable resolution of the assignment issue would resolve Zink's
recently filed grievance.
On May 7, 2015, Gonzales provided Lynch with a copy of his report regarding the October 6,
2014 incident, which was dated April 14, 2015. The report concluded that the student was not
seriously injured, but that Zink exercised "extremely poor judgment" in attempting to
confiscate the device by force. The report determined that the LJHS policy directing teachers
to "confiscate" unauthorized electronic devices did not mean teachers should do so by force.
On May 8, 2015, Zink sent a letter to Gonzales questioning the veracity of one of the witnesses
to the October 6, 2014 incident, as well as disputing Gonzales's interpretation of the LJHS
policy. Zink asserted that these were grounds for concluding that a verbal warning was the
appropriate level of discipline.
On May 26, 2015, Gonzales sent an e-mail message to Lynch proposing an assignment for
Zink in the District's Information Technology (IT) Department, where she would develop an
online math instructional program. Gonzales informed Lynch of a meeting between Zink and
Dan Stoneman (Stoneman), the District's IT Director to discuss the assignment. Gonzales
concluded the message by suggesting that Zink might be interested in a retirement incentive
being offered to employees represented by SDEA.
On May 27, 2015, Zink appealed her grievance to the third level of the grievance procedure.
On May 28, 2015, Gonzales told Lynch that Zink was required to attend the meeting with the
IT Director, and that this was not part of the involuntary reassignment process.
On June 1, 2015, Zink hand-delivered a letter to Stoneman asserting that she was being
"bullied" into interviewing for the IT Department position. Zink also asserted that she should
have been reinstated at LJHS, and questioned the District's motives for reassigning her.
On June 3, 2015, Podhorsky responded to Zink's grievance, acknowledging a partial violation
of one CBA provision, but concluding that Zink's requested remedy-destruction of the
derogatory information-was not appropriate.
On June 4, 2015, Stoneman cancelled the meeting with Zink regarding the IT Department
position.

LA-CE-6095-E
March 15, 2016
Page 7
The same day, Zink sent a letter to Stoneman, stating that if she were to participate in the
meeting, it could be construed as her approval of "blatant" violations of the CBA and of
District procedures. Zink again questioned why she was not being permitted to return to LJHS.
She also referred to the findings by the Civil Grand Jury that there was "testimonial and
documentary evidence to suggest the possibility of improper conduct" by the District toward
Zink.
On June 9, 2015, DFEH accepted Zink's complaint.
On June 15, 2015, Moore sent a letter to Podhorsky attempting to further explain the contract
violations claimed in Zink's grievance.
On June 16, 2015, Zink sent a letter to Gonzales raising further questions about the veracity of
a witness to the October 6, 2014 incident.
On June 23, 2015, Moore sent a letter to Gonzales raising various concerns regarding the
District's investigations and its efforts to reassign Zink. The letter claimed that the District
was engaging in racial discrimination by reassigning Zink. The letter also asserted that "the
District has engaged in acts or has acted in a manner which tends to harm or interfere with Ms.
Zink's employee rights."
On August 29, 2015, Zink received a letter from Podhorsky dated September 2, 2015,
providing notice of a proposed reassignment from LJHS for the remainder of the 2015-2016
school year. The letter asserted that due to "repeated complaints" about Zink's "teaching
methodology," reassigning her was in the best interests of Zink and the District. The letter also
informed Zink of her contractual rights to meet with Podhorsky regarding the proposed
reassignment, and to appeal Podhorsky's decision to the District's Chief Human Resources
Officer, Tim Asfazadour (Asfazadour).
The same day, Zink sent a letter to Podhorsky requesting clarification of whether she was still
on administrative leave.
On September 1, 2015, Gonzales responded to Zink by e-mail, confirming that she remained
on paid administrative leave until told to report to work.
On September 21, 2015, a decision was issued regarding Zink's grievance, determining that
some CBA provisions were violated when Zink was not timely informed of parental
complaints against her. The remedy for the violation was to preclude the parental complaints
from being used as part of a disciplinary or personnel action or to evaluate Zink.
A meeting was scheduled for September 24, 2015 between Zink, Moore, and Podhorksy
regarding the involuntary reassignment. However, when Zink and Moore arrived for the
meeting, they were informed that the meeting would need to be rescheduled.
Later that day, Zink sent a letter to Podhorsky insisting on her right to the meeting regarding
the involuntary reassignment, pursuant to section 12.7 of the CBA.

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On October 5, 2015, Zink filed a new grievance, this time alleging violations of various
provisions of section 12.7 of the CBA. As the "specific grounds for the grievance," the
grievance alleged:
On Thursday, September 24, 2015 at 12:30 p.m. a personal interview with
Emma Zink was to occur with La Jolla High School Principal Chuck Podhorsky
but twenty minutes before the scheduled meeting Principal Podhorsky cancelled
the meeting. (Ms. Zink arrived at the La Jolla High Main Office and signed in
at 12:10 p.m.) In an email sent to Ms. Zink by Principal Podhorsky at 12:29
p.m. September 24, 2015, Ms. Zink became aware that Principal Podhorsky
improperly combined two steps in the contract (Sections 12.7.1.1.1 and
12.7.1.1.2) in his recommendation for administrative transfer. Principal
Podhorsky not only violated the aforementioned two sections but also, in a
notification dated September 2, 2015, violated Section 12.7.1.2 administrative
transfer process by not following the specific steps outlined in the contract.
On October 7, 2015, Podhorsky sent an e-mail message to Zink and Moore, proposing to
reschedule the cancelled meeting for October 14, 2015 at the "Ed Center."
Moore responded the following day, October 8, 2015, informing Podhorsky of the grievance
and requesting that the meeting be held at LJHS. Moore mentioned "still unresolved ADA
issues concerning Mrs. Zink."
Podhorsky insisted that the meeting be at the Ed Center, and the meeting was ultimately held
on October 14, 2015.
On October 15, 2015, Zink sent a letter to Podhorsky protesting the previous day's meeting.
Zink objected that the reason for the proposed transfer had changed from parental complaints
to the "best interest of the District." Among other things, Zink alleged that the involuntary
transfer was "in retaliation for engaging in protected activities."
On October 21, 2015, Zink appealed her second grievance to Step 3 of the grievance
procedure.
On October 22, 2015, Zink received a letter from Podhorsky dated October 15, 2015, stating
that he was still recommending a reassignment, and informing Zink of her right to meet with
Asfazadour.
On October 26, 2015, Zink sent a letter to Podhorsky, reiterating her objection to the proposed
reassignment.
On November 2, 2015, a Step 3 appeal meeting was held regarding Zink's grievance, with
Zink, Moore, and District Labor Relations Specialist Kristine Morshead (Morshead) in
attendance.

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On November 5, 2015, Moore sent a 25-page letter to Asfazadour. In addition to protesting
Podhorsky's failure to follow section 12.7 of the CBA, Moore claimed that Zink was placed on
administrative leave as a result of her October 2, 2014 complaint regarding the lack of written
guidance regarding suspension referrals, and that the involuntary transfer, first raised on April
14, 2015, was in retaliation for the April 10, 2015 letter from Moore on Zink's behalf.
On November 16, 2015, Zink and Moore met with Asfazadour regarding the proposed
reassignment.
Also on November 16, 2015, the District denied Zink's grievance at Step 3. The decision was
issued by Morshead.
On November 17, 2015, Zink requested that SDEA arbitrate her grievance.
On December 4, 2015, Zink received a letter informing her that the SDEA Grievance
Committee voted to recommend that the SDEA Board of Directors not proceed to arbitration of
Zink's grievance. Zink was informed of her right to appear before the Board of Directors to
appeal that decision.
On January 14, 2016, Zink and Moore met with Asfazadour.
On January 19, 2016, Asfazadour sent Zink a letter informing her that she would not be
transferred, and that she should report to work at LJHS on February 1, 2016.
DISCUSSION
I. 	The Charging Party's Burden
An unfair practice charge must include a "clear and concise statement of the facts and conduct
alleged to constitute an unfair practice." (PERB Regulation 32615(a)(5).) A charging party
should allege with specificity the particular facts giving rise to a violation. (National Union of
Healthcare Workers (2012) PERB Decision No. 2249a-M.) The charging party may do this by
alleging sufficient facts describing the "who, what, when, where and how" of an unfair
practice. (State of California (Department of Food and Agriculture) (1994) PERB Decision
No. 1071-S (Dept. of Food and Agriculture), citing United Teachers-Los Angeles (Ragsdale)
(1992) PERB Decision No. 944.) Such allegations should focus on the elements of the prima
facie case.
In evaluating whether a charge states a prima facie case, the Board agent must assume that the
facts alleged by the charging party are true. (Temple City Unified School District (1990)
PERB Decision No. 843.) Speculation and legal conclusions, however, are not factual
allegations, and they are not sufficient to state a prima facie case. (Dept. of Food and
Agriculture, supra, PERB Decision No. 1071-S; Charter Oak Unified School District (1991)
PERB Decision No. 873.) In addition, while the Board agent may not resolve factual disputes
in favor of the respondent, the Board agent may rely on undisputed facts provided by the

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respondent under penalty of perjury. (Chula Vista Elementary School District (2003) PERB
Decision No. 1557.)
II. 	Statute of Limitations
The charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. (Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
from issuing a complaint with respect to any charge based upon an alleged unfair practice
occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known, of
the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
The charge in this case was filed on December 24, 2015. As a result, events that took place
before June 24, 2015 are untimely unless an exception to the statute of limitations applies. In
the charge, Zink acknowledges that many of the events alleged occurred more than six months
before the charge was filed, but argues that the statute of limitations was tolled while her two
grievances were pending.
With respect to tolling of the statute of limitations, EERA specifically provides that:
The board shall, in determining whether the charge was timely filed, consider
the six-month limitation set forth in this subdivision to have been tolled during
the time it took the charging party to exhaust the grievance machinery.
(Gov. Code, $ 3541.5, subd. (a)(2).) In order to effectively toll the statute of limitations under
this provision, a grievance must place the employer on notice of the specific violation. (North
Orange County Community College District (1998) PERB Decision No. 1268.) A grievance
that does not specifically allege retaliation for protected activity does not toll the statute of
limitations for filing a PERB charge regarding that allegation. (Peralta Community College
District (2001) PERB Decision No. 1462 (Peralta).)
In this case, neither of Zink's grievances placed the District on notice of the EERA violations
alleged in the charge. The charge enumerates 17 adverse actions taken by the District against
Zink, which are alleged to be in retaliation for her EERA-protected activity. The charge also
alleges that the District issued directives that interfered with Zink's rights under EERA to
communicate with her co-workers. None of these specific allegations are not included on the
forms Zink submitted with her grievances. Those forms included only assertions that the
District violated Zink's contractual rights governing disclosure of derogatory information and
involuntary reassignment. Nor is there any other evidence that Zink presented these

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allegations as part of the grievance process." Thus, Zink's grievances did not place the District
on notice of the EERA violations alleged in the charge. As a result, the grievances did not toll
the statute of limitations. (Peralta, supra, PERB Decision No. 1462.)
Because the statute of limitations was not tolled by Zink's grievances, events that took place
more than six months before the charge was filed, i.e., before June 24, 2015, are untimely. The
timeliness of the 17 claimed adverse actions is discussed as follows.
Several of the claimed adverse actions are clearly untimely. Numbers 1-6 and 9-10 concern
the conduct of the District's investigator, Gonzales, all of which is alleged to have occurred
between March 27, 2015, when the District informed Zink of Gonzales's appointment as
investigator, and June 23, 2015, when Moore sent a letter to Gonzales. Number 8 concerns the
District's directive not to contact other staff members, students, or parents, which was issued
on December 3, 2014." Numbers 14 and 15 concern Zink's ineligibility to apply for District
Teacher of the Year and summer school, respectively. She was informed of those actions no
later than March 9, 2015, the date she objected to them in a letter to Houston. Number 16
concerns Zink's decision to turn down the District's two settlement proposals that Zink remain
on administrative leave for a period of time and then retire. Zink turned down the second of
these proposals on January 22, 2015. Because each of these claimed adverse actions occurred
before June 24, 2015, they are untimely.
Number 17 is less clear. This action concerns the "continuing" of Zink's paid administrative
leave as a result of parental complaints. No date is specifically alleged for this action. Zink
was initially placed on paid administrative leave on October 8, 2014 pending an investigation
into other allegations. On December 3, 2014, while the first investigation was pending, she
was informed that she would remain on paid administrative leave pending investigation of her
own discrimination complaint and of complaints from students and parents. Thus, Zink
appears to have been informed no later than December 3, 2014 that her administrative leave
There are instances in which Zink's representatives asserted violations of Zink's
rights under EERA, such as Moore's January 28, 2015, June 23, 2015, and November 5, 2015
letters. However, it is not alleged that these letters were part of the grievance process. Nor,
despite references to Zink's grievances in the latter two letters, did these letters assert that the
grievances involved either interference with Zink's rights under EERA or retaliation for
EERA-protected activity.
* As noted, the charge also alleges that this directive interfered with Zink's rights under
EERA. The allegation is untimely under either theory. (State of California (Department of
Transportation) (1996) PERB Decision No. 1172-S [statute of limitations for an interference
allegation begins to run when "charging party knew or should have known of the conduct
giving rise to the alleged unfair practice"].)
The charge does not specifically allege that the similar directive contained in the
October 8, 2014 letter, or the amended directive contained in the March 2, 2015 letter, are
unfair practices. Nevertheless, any allegations based on those letters would also be untimely,
having occurred before June 24, 2015.

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would continue pending a second investigation, notwithstanding the resolution of the first
investigation.
The charge does not allege that the investigation initiated on December 3, 2014 was ever
completed. In other words, because the investigation was still pending at all times relevant to
the charge, Zink could not have expected that her administrative leave would be terminated.
Zink acknowledges the Board's decision in Claremont Unified School District (2015) PERB
Decision No. 2459 (Claremont), which held that it was not an adverse action to continue a
previously announced administrative leave, when the investigation prompting the leave is still
pending. Nevertheless, Zink attempts to distinguish Claremont by claiming that the terms of
her administrative leave changed, resulting in a new adverse action, when the District informed
her that it would be seeking to involuntarily transfer her on the basis of the parental
complaints. Even assuming that this resulted in a new adverse action, Zink's attorney was
informed of it on April 17, 2015. Because that date was prior to June 24, 2015, this allegation
is untimely.
The remaining allegations in the charge are timely. These are: (1) the cancellation of the
September 24, 2015 meeting between Zink, Moore, and Podhorsky (listed as Number 7 in the
charge); (2) Podhorsky's August 29, 2015 initiation of the involuntary reassignment procedure
(listed as Numbers 1 1 and 12 in the charge); and (3) the November 16, 2015 denial of Zink's
second grievance (listed as number 13 in the charge). Only these three timely actions will be
analyzed to determine if they state a prima facie case.
III. Prima Facie Case
The charge alleges that the District took adverse action against Zink for engaging in protected
activity. To state a prima facie case of retaliation in violation of EERA section 3543.5(a), Zink
must allege: (1) she exercised rights under EERA; (2) the District had knowledge of the
exercise of those rights; (3) the District took adverse action against Zink; and (4) the District
took the action because of the exercise of those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato).)
A. 	Protected Activity and Employer Knowledge
EERA protects employee rights to "form, join, and participate in the activities of employee
organizations of their own choosing for the purpose of representation on all matters of
employer-employee relations," as well as to "represent themselves individually in their
employment relations with the public school employer." (Gov. Code, $ 3543, subd. (a).)
In order to be protected, an employee's activity must be the "logical continuation of group
activity" (Los Angeles Unified School District (2003) PERB Decision No. 1552), and it must
be directed toward issues of legitimate concern to employees as employees (Berkeley Unified
School District (2015) PERB Decision No. 2411 (Berkeley)). Protected activity includes
asserting rights grounded in a collective bargaining agreement (Jurupa Unified School District
(2015) PERB Decision No. 2420), and filing grievances pursuant to a contractual grievance
process (Trustees of the California State University (2008) PERB Decision No. 1970-H).

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However, internal complaints, "undertaken alone and for [the employee's] sole benefit" are not
protected. (Los Angeles Unified School District (2003) PERB Decision No. 1552.) "[W]hen
an employee's communication with the employer is for his/her own benefit, the conduct is not
protected." (State of California (Department of Corrections & Rehabilitation) (2010) PERB
Decision No. 2118-S (CDCR).)
Under these standards, the charge in this case adequately alleges that Zink engaged in
protected activity by way of the April 10, 2015 letter from Moore on Zink's behalf, the April
27, 2015 grievance, the October 5, 2015 grievance, and the various other communications in
which Zink asserted her rights under the CBA.'
The charge also adequately alleges that the District had knowledge of Zink's protected activity.
(See Palo Verde Unified School District (2013) PERB Decision No. 2337.)
B. 	Adverse Action
The test for whether an action is adverse is "whether a reasonable person under the same
circumstances would consider the action to have an adverse impact on the employee's
employment." (Newark Unified School District (1991) PERB Decision No. 864.) This is an
objective test; the Board does not rely upon the subjective reactions of the employee. (Palo
Verde Unified School District (1988) PERB Decision No. 689.) The harm alleged must be
"actual and not merely speculative." (County of Tehama (2010) PERB Decision No. 2122-M.)
As discussed above, the charge alleges 17 claimed adverse actions, most of which are
untimely. The remaining actions, discussed below, are not adverse actions under an objective
standard.
The charge alleges that Podhorsky's cancellation of the September 24, 2015 meeting was an
adverse action because it caused Zink and Moore to "waste" their time, and Zink to "waste"
the money she paid her representative, Moore. However, wasting Zink's time does not appear
to be adverse to her employment, where she was already on administrative leave and required
to report to work as directed by the District. Moreover, the wasting of Zink's money did not
have an adverse impact on Zink's employment with the District. And, in any event, it is not
alleged that the District required Zink to pay a representative to attend the meeting."
Not all of the activities cited in the charge are protected. For instance, Zink's May 8,
2015 letter to Gonzales argued that based on concerns with witness veracity and the District
and LJHS policies at issue, a verbal warning was more appropriate than a written one. This
letter did not assert any rights under the CBA, nor did it raise issues of concern to any
employees other than Zink.
It is noted that Zink may have had a right to be represented in this meeting by an
SDEA representative. (Sonoma County Superior Court (2015) PERB Decision No. 2409-C.)
However, she did not have an EERA-protected right to representation by Moore, who is not
alleged to be an SDEA representative. (Hartnell Community College District (2015) PERB
Decision No. 2452.)

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The charge also alleges that Podhorsky took adverse action against Zink by initiating the
involuntary reassignment process and by doing so without following the steps defined by the
CBA. PERB has determined that involuntarily transferring or reassigning an employee is an
adverse action when the new position has less favorable working conditions. (See, c.g.,
County of Santa Barbara (2012) PERB Decision No. 2279-M (Santa Barbara); Fresno County
Office of Education (2004) PERB Decision No. 1674.) In addition, a threat to take an adverse
action is itself an adverse action when it "give[s] the employee unequivocal notice that the
employer has made a firm decision to take the threatened action." (Trustees of the California
State University (2009) PERB Decision No. 2038-H.)
Podhorsky's actions fall short of establishing an adverse action, for two reasons. First,
Podhorsky's initiation of the transfer process was unequivocal notice of a firm decision to
initiate the transfer process, but not of a firm decision to transfer Zink. Under the CBA, the
final decision to transfer Zink was Asfazadour's. ' Second, even if it had been unequivocal
notice, the transfer's effect on Zink's working conditions is entirely speculative. This is
because the transfer did not provide notice of what position Zink would be transferred to.
Therefore, it cannot be concluded that the transfer would result in less favorable working
conditions for Zink.
Finally, the charge alleges that the District took adverse action against Zink when it issued the
Step 3 grievance response, which "omits factual and supporting evidence as to Zink's claims
and provides factual inaccuracies, while blatantly acknowledging the District is violating the
contract, yet attempting to provide excuses for their violations." The Board has suggested that
the denial of a grievance may be an adverse action if the denial of the grievance has an adverse
effect on the grievant's employment. (Golden Gate Bridge Highway & Transportation District
(2011) PERB Decision No. 2209-M.)
In this case, it is not alleged that the denial of Zink's grievance had an adverse effect on Zink's
employment. Prior to the denial, she was on paid administrative leave, and Podhorsky was
attempting to reassign her. Both of those conditions continued after the denial of her
grievance; she remained on paid administrative leave, and Podhorksy was attempting to
reassign her."
As the District notes in its position statement, Asfazadour ultimately decided not to
approve the transfer.
Alternatively, if Gonzales's statements that Zink would be transferred to a non-
teaching position are viewed as unequivocal notice of a firm decision to transfer Zink to a
position with less favorable working conditions, such an allegation is untimely. Gonzales
made those statements on April 17, 2015.
'To the extent Zink contends that the denial of the grievance was adverse to her
employment because the grievance should have been granted, this contention appears aimed at
improperly seeking to have PERB enforce the CBA. EERA prohibits PERB from enforcing
contractual agreements, absent an independent violation of the statute. (Gov. Code, $ 3541.5,
subd. (b); cf. Trustees of the California State University (San Marcos) (2015) PERB Decision

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Because the charge does not allege sufficient facts that the District took a timely adverse action
against Zink, it fails to state a prima facie case of retaliation.
CONCLUSION
For these reasons the charge, as presently written, does not state a prima facie case." If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent of Charging Party. The amended charge must have the case
number written on the top right hand corner of the charge form. The amended charge must be
served on the Respondent's representative and the original proof of service must be filed with
PERB. If an amended charge or withdrawal is not filed on or before March 29, 2016," PERB
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
Sincerely,
Joseph Eckhart
Regional Attorney
JE
No. 2407-H ["The final step in a grievance procedure is not the filing of an unfair practice
charge"]; Santa Clara Valley Water District (2013) PERB Decision No. 2349-M [knowledge
of protected activity resulting from a supervisor's denial of a grievance "is only relevant to the
extent there are circumstances, other than the denial of the grievance, to suggest unlawful
motive," because, "[otherwise, every denied grievance would be bootstrapped into a
retaliation claim"].)
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
1 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile or electronic mail. (PERB Regulation 32135.)
1In Eastside Union School District (1984) PERB Decision No. 466, the Board