Oakland Unified School District (PERB 2061E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SHARIKA GREGORY,
Charging Party,
V.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-2636-E
PERB Decision No. 2061
September 10, 2009
Appearances: 	Sharika Gregory, on her own behalf; Martin H. Kresse, Staff Attorney, for
Oakland Unified School District.
Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Sharika Gregory (Gregory) to the proposed decision
of
an administrative law judge (ALJ). The unfair practice charge alleged that the Oakland
Unified School District (District) violated the Educational Employment Relations Act
(EERA),1 section 3543.5(a), by discriminating against Gregory for engaging in protected
activity when it terminated her employment. The ALJ concluded that Gregory failed to state a
prima facie case and dismissed the case.
The Board has reviewed the proposed decision and the record in light
of
the exceptions,
briefs and relevant law. Based on this review, the Board affirms the dismissal of the case for
the reasons stated below.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

PROCEDURAL HISTORY
Gregory filed an unfair practice charge against the District on August 15, 2007. On
December 24, 2007, the Office
of
the General Counsel dismissed the charge as untimely filed.
Gregory appealed the dismissal to the Board. On June 26, 2008, the Board issued Oakland
Unified School District (2008) PERB Decision No. 1965 (Oakland USD), in which the Board
reversed the dismissal and remanded the case to the PERB General Counsel's Office for
issuance
of
a complaint.
On July 24, 2008, the General Counsel's Office issued a complaint alleging the District
unlawfully terminated Gregory's employment in violation
of
EERA section 3543.5(a). The
District answered the complaint on August 12, 2008, denying any violation
of
EERA.
	An
informal settlement conference was held on August 19, 2008, but the matter was not resolved.
A formal hearing was conducted on November 19 and 20, 2008, and January 22, 2009
by Administrative Law Judge Philip E. Callis (ALJ Callis). On February 10, 2009, the case
was transferred to Administrative Law Judge Shawn P. Cloughesy (ALJ Cloughesy) due to the
retirement
of
ALJ Callis. The parties were given the opportunity to state their position
regarding the reassignment
of
the case to ALJ Cloughesy. Neither party objected to the
reassignment. Post-hearing briefs were filed on April 13, 2009, and reply briefs on
May
1,
2009.
BACKGROUND
Gregory had been employed by the District as a Paraprofessional to Exceptional
Children since October 4, 2004. Gregory was supervised by John Rusk (Rusk), Coordinator of
Special Education for Young Adult Programs and High Schools. On August 2, 2006, Rusk
notified Gregory that effective August 28, 2006, she would be transferred to Oakland Tech
High School (Oakland Tech) to work with medically fragile students. Rusk informed Gregory
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the transfer was due to program needs. In Gregory's prior assignment, she worked in the
Community Immersion Program (CIP), a special education program with highly functional
clientele between the ages of 18 and 22 years.
Gregory reported to Oakland Tech Supervising Teacher Meriel Templeton (Templeton)
on August 28, 2006. Templeton told Gregory she already had enough aides. Templeton spoke
to Rusk about being overstaffed and Rusk reassigned Gregory to Carl B. Munck Elementary
School (Munck Elementary) the same day.
When she arrived at Munck Elementary, Gregory saw Janet Mccarrol-Gregory
(McCarrol) at a school assembly. McCarrol was involved in litigation with Gregory's father.
To avoid any future confrontation, Gregory decided to request a transfer. On August 30, 2006,
Gregory sent a written transfer request to Rusk.
After Gregory consulted with the American Federation of State, County and Municipal
Employees, Council 57 (AFSCME), the exclusive representative for Gregory's bargaining unit,
a union representative told Gregory to contact District Human Relations Analyst Bill Whyte
(Whyte). 	On September I, 2006, Gregory wrote to Whyte stating that she had consulted with a
union representative and been advised to request an immediate transfer. Whyte did not tell
Rusk that Gregory had conferred with a union representative.
Gregory was subsequently assigned to Brookfield Elementary School (Brookfield) on
September 7, 2006. However, Gregory's assignment still required her to work with students
with medical needs. One female student required catheterization for urination. Gregory had
not received training to perform catheterization.2
2 The Special Education program had nine nurses who trained paraprofessionals in
certain medical procedures.
3

From the beginning of her assignment at Brookfield, Gregory expressed her concern to
Rusk that she was not trained to perform some of the duties of her assignment, specifically the
catheterization. Gregory's attendance during this time was sporadic. Gregory made numerous
visits and calls to Rusk over the next month complaining about her lack of training, expressing
concern that she was a liability to the District, and requesting to be returned to her previous
assignment. While efforts were made to provide Gregory with training, Rusk directed her to
report to work and perform those duties which did not require specific medical training. 	On or
about October 10, 2006, Gregory stopped reporting to work.
Rusk had three meetings with Gregory in October 2006 to discuss her failure to report
for work. Rusk asked Iris Wesselman (Wesselman), also a Coordinator of Special Education
for Young Adult Programs and High Schools, to attend the meeting with Gregory held on
October 26, 2006. Wesselman informed Gregory of her right to representation and Gregory
waived that right. Wesselman stated that Gregory needed to complete absence forms for her
absences. 	Gregory responded that she was not absent because she had never been assigned to
Brookfield.3 Wesselman asked Rusk whether he had Gregory's written assignment to
Brookfield ready and he replied that he did, but he could not find it. At some point, Rusk
terminated the meeting out of his frustration with Gregory and stated he would be arranging a
meeting between Gregory and Whyte.4
Gregory testified that she had never received a written notice of assignment to
Brookfield.
4 Rusk prepared two letters of reprimand, dated October 8 and 30, 2006, against
Gregory for not reporting to work at Brookfield, among other things. The reprimands were
forwarded to the District Human Resources Division for review. The reprimands were never
issued to Gregory.
4

On December 19, 2006, Gregory sent Rusk a letter complaining that she was stuck in
"limbo," and wanted to be returned to her prior CIP assignment. Gregory still had not reported
for work at Brookfield.
On January 22, 2007, Gregory received a letter from the District Benefits Office
informing her that she was eligible for "COBRA" health benefits because of her "recent
separation from employment." This was the first notice Gregory had received that her
employment had been terminated.
On January 26, 2007, Whyte sent Gregory a letter dated January 16, 2006, that was
entitled, "Abandonment of Position - Special Education." The letter stated in part:
The Human Resources Division has been notified that you have
not reported to work since October 2006 nor have you notified
anyone of what your plans are for the remainder of the school
year. Your continued absence is considered unauthorized and
therefore will be unpaid. According to Administrative Bulletin
8010, Personnel Procedures (f), abandonment of position is cause
for dismissal.
You have the right to a hearing to review your unauthorized
absence. Your right to a hearing will be deemed waived and
dismissal proceeding [sic] will be initiated if you do not contact
the Human Resources Division within ten (I 0) working days.
Gregory received the January 16, 2007 letter on January 29, 2007. Gregory noticed that
the letter was postmarked January 26, 2007. Gregory immediately called Whyte and requested
a hearing, she also asserted she had not abandoned her job. Whyte told Gregory he would
notify her when he set up the hearing.
The District's normal procedure for job abandonment actions is to send the employee a
letter notifying them that they had abandoned their job, and stating the employee could reply or
request a hearing. If the employee did not respond, the District terminated the employee for
job abandonment. Ifthe employee responded and requested a hearing, a hearing was
5

scheduled and the decision to terminate the employee for job abandonment was postponed
until after the hearing.
Whyte verbally notified Rusk that a hearing would be held for Gregory. Rusk assumed
Whyte would schedule the hearing and contact Gregory.
Gregory did not appear for the February 14, 2007 hearing. Gregory testified that Whyte
did not tell her when the hearing would be held and she did not receive a written notice
of
the
scheduled hearing. AFSCME Business Agent Jo Bates (Bates) testified that under the
District's normal procedure written notice
of
job abandonment hearings is not provided.
When Gregory did not appear for the February 14, 2007 hearing, Whyte told Rusk he
would attempt to reach Gregory by phone. Whyte returned and informed Rusk that the person
who answered Gregory's phone stated that Gregory had gone to Africa. The District
representatives at the hearing then decided that Gregory had abandoned her position at
Brookfield, and a termination notice should be sent to her. On February 16, 2007, Whyte
prepared a letter almost identical to the January 16, 2007 notification letter.
On February 28, 2007, Gregory contacted Bates for assistance. Ultimately, Bates
arranged a meeting with the District. On August 17, 2007, Gregory and Bates met with Whyte
and Rusk to discuss the termination
of
Gregory's employment. At the meeting, the District
representatives stated that Gregory was terminated on January 16 and February 16, 2007.
Whyte explained during the meeting that when he spoke with Gregory regarding her request
for a hearing, they agreed to a location and date, but not a time. Bates did not remember
Gregory contesting this assertion.
Gregory stated she did not come back to work because she had not been trained in the
catheterization procedure. The District responded that Gregory should have reported to work
to perform the other paraprofessional duties rather than unilaterally decide she could not work
6

at Brookfield. At the conclusion
of
the meeting, Whyte informed Gregory that the District
would not alter the job abandonment termination.
DISCUSSION
Effect
of
Prior Board Decision
Gregory argued to the ALJ and on appeal to the Board, that the ALJ was bound by the
Board's determination in Oakland USD that Gregory had established a prima facie case
of
discrimination in violation
ofEERA
section 3543.S(a).
During the initial investigation
of
an unfair practice charge, the PERB General
Counsel's office will issue a complaint
if
the charging party has alleged facts that,
if
proven
true in a subsequent hearing, would state a prima facie violation
of
the EERA. During the
formal hearing, the burden is on the charging party to present evidence to prove the allegations
in the complaint. (Los Angeles Unified School District (1991) PERB Decision No. 874;
Grossmont Community College District (1980) PERB Decision No. 117.)
Once a charging party has met its burden
of
proving a prima facie case, the respondent
has the opportunity to put on evidence to rebut the charging party's claims. (Service
Employees International Union, Local 221 (Meredith) (2009) PERB Decision No. 1982a.)
In the present case, Gregory bears the burden at the formal hearing
of
proving
by
a
preponderance
of
the evidence the elements
of
a prima facie case
of
discrimination. Gregory's
assertion that the Board's decision in Oakland USD meets that burden is rejected.
Discrimination
To demonstrate a prima facie case of employer discrimination against an employee in
violation ofEERA section 3543.S(a), the charging party must show that: (1) the employee
exercised rights under EERA; (2) the employer had knowledge of the exercise of those rights;
(3) the employer took adverse action against the employee; and (4) the employer took the
7

action because
of
the exercise
of
those rights. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato); San Leandro Police Officers Assn.
v.
City
of
San Leandro (1976)
55 Cal.App.3d 553 (San Leandro).)
If
a charging party establishes a prima facie case
of
discrimination, the employer then
bears the burden
of
proving that it would have taken the adverse action even
if
the employee
had not engaged in protected activity. (Novato; Martori Brothers Distributors
v.
Agricultural
Labor Relations Board (1981) 29 Cal.3d 721, 729-30; Wright Line, Inc. (1980) 251 NLRB
1083, enforced in part (1st Cir. 1981) 662 F.2d 899.) This is the "but for" test, which is
"an
affirmative defense which the employer must establish by a preponderance
of
the evidence,
once the charging party has proved antiunion animus played any part in the decision."
(McPherson
v.
Public Employment Relations Bd. (1987) 189 Cal.App.3d 293.)
Gregory engaged in protected activity when she consulted with a union representative
on September 1, 2006, regarding her desire to be transferred from Munck Elementary to her
old assignment.
Further, the evidence establishes that a District official involved in the decision
to
terminate Gregory's employment had knowledge
of
her protected activity. 	Gregory followed
the advice
of
the union representative and wrote to Whyte requesting a transfer. Gregory's
letter specifically stated that she had consulted with the union. Thus, Whyte was aware
of
Gregory's protected activity, while Rusk, her immediate supervisor, was not.
In Escondido Union Elementary School District (2009) PERB Decision
No.2019
(Escondido), a supervisor prepared a letter
of
reprimand against an employee. The supervisor
did not know the employee had filed a PERB charge against the employer. The supervisor
submitted the letter of reprimand to the personnel officer for review and assistance in
completing the letter. The personnel officer was aware of the employee's unfair practice
8

charge. The Board held that knowledge
of
the protected activity was established because one
of
the employer's disciplinary agents knew
of
the employee's participation in protected
activity and was involved in the issuance
of
the disciplinary letter.
In the present case, it was Rusk who initiated the employment action against Gregory
by informing Whyte
of
Gregory's extended and unauthorized absence from work. However, it
was Whyte who prepared and signed the job abandonment/termination notices sent to Gregory.
As in Escondido, Whyte was a participant in the decision to issue the disciplinary action to
Gregory. 	Since Whyte knew
of
the protected activity and participated in the disciplinary
action, the knowledge element is established.
It is clear that an employer's termination
of
an employee's employment for
job
abandonment is an adverse action. (Regents
of
the University
of
California (Einheber) (1997)
PERB Decision No. 949-H.)
In the absence
of
direct evidence
of
unlawful motivation, circumstantial evidence may
establish a connection between the employee's protected activity and the employer's
imposition
of
adverse action. (Novato.) Although the timing
of
the employer's adverse action
in close temporal proximity to the employee's protected conduct is an important factor (North
Sacramento School District (1982) PERB Decision No. 264), it does not, without more,
demonstrate the necessary connection. (Moreland Elementary School District (1982) PERB
Decision No. 227.) Other factors that may demonstrate an inference
of
unlawful motive must
also be present, including factors such as: 	(1) the employer's disparate treatment
of
the
employee (State
of
California (Department a/Transportation) (1984) PERB Decision
No. 459-S; (2) the employer's departure from established procedures and standards when
dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. 104; San Leandro, supra, 55 Cal.App.3d 553); (3) the employer's inconsistent or
9

contradictory justifications for its actions (State
of
California (Department
of
Parks
and
Recreation) (1983) PERB Decision No. 328-S; San Leandro, supra,
55
Cal.App.3d 553);
(4) the employer's cursory investigation
of
the employee's misconduct (City
of
Torrance
(2008) PERB Decision No. 1971-M; Coast Community College District (2003) PERB Decision
No. 1560); (5) the employer's failure to offer the employee justification at the time it took
action or the offering
of
exaggerated, vague, or ambiguous reasons (County
of
San Joaquin
(Health Care Service) (2001) PERB Order No. IR-55-M); (6) employer animosity towards
union activists (Jurupa Community Services District (2007) PERB Decision No. 1920-M;
Cupertino Union Elementary School District (1986) PERB Decision No. 572); or (7) any other
facts that might demonstrate the employer's unlawful motive. (North Sacramento School
District, supra, PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
In addition to timing, nexus is established in this case by the District's departure from
its procedures when it failed to notify Gregory
of
the date
of
the job abandonment hearing.
Gregory testified that she was not given notice
of
the February 14, 2007 hearing. Rusk was
verbally notified
of
the date by Whyte and he assumed Whyte would contact Gregory.
However, the District did not establish that verbal or written notice was provided to Gregory.
Gregory's failure to attend the hearing led to the District's decision to proceed with the
termination
of
her employment. The evidence, therefore, establishes a prima facie case
of
discrimination.
It is clear, however, the District would have terminated Gregory's employment
regardless
of
whether she had consulted with the union. Gregory had not shown up for work
since approximately October 10, 2006. Rusk had numerous meetings with Gregory directing
her to report for work. Although Gregory was not trained to perform the catheterization

procedure, Rusk directed Gregory to carry out the duties that did not require special training.
Gregory did not comply.
Gregory's failure to report for work forced the District to terminate her employment
rather than continue to carry her on its payroll. Thus, the Board finds the District would have
terminated Gregory's employment regardless
of
her protected activity.
ORDER
The complaint and unfair practice charge in Case No. SF-CE-2636-E are hereby
DISMISSED.
Acting Chair Dowdin Calvillo and Member McKeag joined in this Decision.
11