Los Angeles Community College District (PERB 2219E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CARMEN BAPRA WSKI,
Charging Party,
v.
LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-5423-E
PERB Decision No. 2219
November 15, 2011
Appearances: Carmen Baprawski, on her own behalf; Atkinson, Anderson, Loya, Ruud &
Romo by Joshua E. Morrison, Attorney, for Los Angeles Community College District.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWD IN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by Carmen Baprawski (Baprawski) to a proposed
decision (attached) by a PERB administrative law judge (ALJ) dismissing the complaint and
underlying unfair practice charge. The charge and complaint alleged that the Los Angeles
Community College District (District) violated section 3543.5(a) of the Educational
Employment Relations Act (EERA)1 by relocating Baprawski's office in retaliation for her
having filed a grievance and unfair practice charges against the District and for participating in
a PERB settlement conference and formal hearing. The ALJ determined that Baprawski failed
to establish a prima facie violation of EERA.
The Board has reviewed 	s proposed decision and the record in light of
Baprawski's exceptions, the District's response thereto, and the relevant law. In her
1 EERA is codified at Government Code section 3540 et seq.

exceptions, Baprawski primarily disputes the ALJ' s factual findings. 	The Board normally
gives deference to the ALJ's factual findings involving credibility determinations unless they
are unsupported by the record as a whole. (State
of
California (Department
of
Corrections &
Rehabilitation) (2010) PERB Decision No. 2136-S; Anaheim City School District (1984)
PERB Decision No. 364a.) Having thoroughly reviewed the entire record in this matter, we
conclude the ALJ properly weighed the evidence presented by the parties at hearing. We also
agree with the ALJ's credibility determinations. In particular, we agree with the ALJ's
determination crediting the testimony
of
Vice President
of
Student Services Lawrence Bradford
(Bradford) over that
of
Baprawski on the issue
of
employer knowledge. Bradford testified
clearly and consistently that he had no knowledge
of
Baprawski' s protected activity in filing a
grievance and two unfair practice charges. While Baprawski testified generally that, when she
saw Bradford two or three times a week during some unspecified time period, she "would speak
with him and what was going on with me and with PERB and with my grievance," she failed to
describe any specific conversations she had with Bradford. Accordingly, based upon our review
of
the record, we find the proposed decision to be well-reasoned, adequately supported by the
record, and in accordance with applicable law. Accordingly, the Board adopts the ALJ's
proposed decision as the decision
of
the Board itself.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5423-E are
hereby DISMISSED.
Chair Martinez and Member Huguenin joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CARMEN BAPRA WSKI,
Charging Party,
V.
LOS ANGELES COMMUNITY COLLEGE
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5423-E
PROPOSED DECISION
(6/16/2011)
Appearances: 	Carmen Baprawski, on her own behalf; Atkinson, Anderson, Loya, Ruud &
Romo by Joshua E. Morrison, Attorney, for Los Angeles Community College District.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an employee alleges that her employer retaliated by relocating her office,
in violation of Educational Employment Relations Act (EERA) section 3543.S(a). 1 The
employer denies any violation of law.
Carmen Baprawski (Baprawski) filed an unfair practice charge against the Los Angeles
Community College District (District) on February 8, 2010. The Office of the General
Counsel of the Public Employment Relations Board (PERB or Board) issued an unfair practice
complaint (complaint) against the District on October 4, 2010. The District filed an answer to
the complaint on October 15, 2010.
PERB held an informal settlement conference on November 4, 2010, but the case was
not settled. PERB held a formal hearing on March 29 and 30, 2011. After briefing, the case
was submitted for decision on June 6, 2011.
EERA is codified at Government Code section 3540 et seq.

FINDINGS OF FACT
The District is a public school employer under EERA. Baprawski was an employee
under EERA until her retirement on June 4, 2010.
The complaint alleges in part:
3. 	Charging party [Baprawski] exercised rights
guaranteed by the Educational Employment Relations Act by:
filing a grievance, through her union, against Respondent [the
District] on September 14, 2004, filing an unfair practice charge
with PERB against Respondent on April 6, 2005, filing an unfair
practice charge with PERB against Respondent on September 9,
2005, participating in an informal settlement conference
conducted by PERB on February 21, 2006, and testifying at a
formal hearing before PERB on May 30, 2006.
In its answer, the District admits "each and every" of these allegations. The complaint further
alleges:
4. 	On or about August 17, 2009, Respondent, acting
through its agents, Counseling Department Chair Reri Pumphery
[sic], President Jamillah Moore, and Vice President of Student
Services Lawrence Bradford, took adverse action against
Charging Party by relocating her office from Room 108 of the
Cesar Chavez Administration Building to Room 122 of Clausen
Hall.
In its answer, the District denies "generally and specificaliy each and every" of these
allegations. 	The complaint finally alleges:
5. 	Respondent took the actions described
in paragraph 4 because of Charging Party's activities
described in paragraph 3, and thus violated Government Code
section 3543.5(a).
The District also denies these allegations.
Before retirement, Baprawski worked for the District as a counselor for many years.
In 2000, she went on an extended illness leave. In 2003, she returned from leave to the same
work location: Administration Building room I 08 (AD I 08), a suite of small offices where
2

general counseling was provided. Specialized counseling was given at various other locations
around the campus.
From 2004 to 2006, Baprawski engaged in the protected conduct alleged in the
complaint: a grievance and two unfair practice charges. 	On September
1,
2007, she again took
an extended illness leave. 	When she returned from leave on August 17, 2009, she returned not
to AD 108 but to Clausen Hall room 122 (CH 122), a larger one-person office that was not part
of
a suite. Financial aid and some specialized counseling was done on the same floor
of
the
building.
Baprawski was assigned to CH 122 by Reri Pumphrey (Pumphrey), Chair
of
the
Counseling Department. The assignment was approved by Lawrence Bradford (Bradford),
Vice President
of
Student Services. On August
6,
2009, Pumphrey sent Bradford an electronic
mail message about Baprawski, stating in part:
Our offices are fully occupied with the latest addition
of
on-line
counseling and veteran's counseling taking effect this fall.
Having said that upon Carmen's [Baprawski's] return I plan on
having her housed in an office space we have in Clausen Hall.
I'm working with Jeremy [in the financial aid office] to see this
opportunity
of
having financial aid students take advantage
of
meeting a counselor with close proximity to Financial Aid to
discuss ed planning, appeals, disqualifications, etc. Flexibility in
where we counsel appears to be with us for a while as we face
office challenges.
On the same day, Bradford replied:
As you may be aware, the agreement stipulates that Counselors
should be assigned to offices that provide both visual and
auditory privacy; in addition to desk, a chair, access to a
computer with internet and intranet; a telephone with voice mail
and secure file and storage equipment. 	So we need to talk.
Assigning her to financial aid is o.k. because this is where the
"need" is and you have no office space in general counseling.
What should be emphasized is that she is still part of "general
counseling" working in the financial aid office.
3

The evidence supports the statements
of
Pumphrey and Bradford that there was no unoccupied
private space in AD 108, and this was the reason Baprawski was assigned to CH 122. There is
no evidence that anyone other than Pumphrey and Bradford was directly involved in the
assignment.
On August 17, 2009, when Pumphrey told Baprawski that she would be working in
CH 122, Baprawski was enthusiastic. According to Pumphrey:
She said I love it. I'm thinking I love the idea. She said I wanted
to do something like this, but I didn't know how to ask you.
Baprawski did not deny saying this. Her only explanation was that she thought she would be
doing financial aid counseling, not general counseling, in CH 122.
When Pumphrey took Baprawski to CH 122, they were joined by Bradford. According
to both Pumphrey and Bradford, Baprawski had no complaints about working in CH 122.
Baprawski acknowledges that Pumphrey later made clear that she would be doing general
counseling, not financial aid counseling, but Baprawski still did not complain about working in
CH 122. Baprawski explained that she thought complaining would endanger her health and
her job.
Baprawski testified that in CH 122 she "felt lonely, isolated, punished." There was no
objective evidence, however, that a reasonable person would find CH 122 to be a bad place to
work.
Pumphrey became Counseling Department Chair in July 2008. 	She had no involvement
with or knowledge of Baprawski' s grievance and unfair practice charges in 2004-2006.
Bradford became Vice President of Student Services 	August 2009. He also had no
involvement with Baprawski's grievance and unfair practice charges in 2004-2006. Baprawski
testified that she chatted with Bradford about her unfair practice charges, but Bradford denied
4

that such conversations took place. On this point, I credit Bradford's testimony over that of
Baprawski.
ISSUE
Did the District retaliate against Baprawski by relocating her office?
CONCLUSIONS OF LAW
To demonstrate that an employer discriminated or retaliated against an employee in
violation ofEERA section 3543.5(a), the charging party must show that: 	(1) the employee
exercised rights under EERA; (2) the employer had knowledge of the exercise of those rights;
(3) the employer took adverse action against the employee; and (4) the employer took the action
because of the exercise of those rights. (Novato Unified School District (1982) PERB Decision
No. 210; Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416;
San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553.) In
determining whether evidence of adverse action is established, the Board uses an objective test
and will not rely upon the subjective reactions of the employee. (Palo Verde Unified School
District (1988) PERB Decision No. 689 (Palo Verde).) In a later decision, the Board further
explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but 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; emphasis added; fn.
omitted.)
As the charging party, Baprawski has met her first burden in this case: she exercised
rights protected by EERA. The District admitted that in 2004-2006 Baprawski engaged in
protected conduct: a grievance and two unfair practice charges.
5

Baprawski has not, however, met her second burden: to prove that the District had
knowledge
of
her protected conduct. The relevant District actors were Pumphrey and
Bradford. The evidence showed that Pumphrey had no knowledge
of
Baprawski
's
protected
conduct, and I credit Bradford's testimony that he also had no such knowledge.
Baprawski also has not met her burden
of
proving that the District took adverse action
against her. 	Although Baprawski testified she felt "lonely, isolated, punished" by working in
CH 122, there was no objective evidence that a reasonable person would find it to be a bad
place to work. In Palo Verde, supra, a teacher alleged that the relocation
of
his extra-duty
office constituted an adverse action, but PERB refused to give weight to the teacher's
subjective view that he suffered a loss
of
prestige due to the relocation. (See State
of
California (Department
of
Personnel Administration) (2010) PERB Decision No. 2106-S.)
Similarly, I do not give weight to Baprawski's subjective feelings
of
loneliness, isolation and
punishment.
Finally, Baprawski has not met her burden
of
proving that the District took action
because
of
her protected activities. The evidence showed only one reason for Baprawski' s
assignment to CH 122: there was no unoccupied private space in AD 108. Baprawski has thus
failed to prove retaliation in violation
of
EERA section 3543.S(a). The case must therefore be
dismissed.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, the complaint and the underlying unfair practice charge in Case No.
LA-CE-5423-E, Carmen Baprawski
v.
Los Angeles Community College, are hereby
DISMISSED.
6

Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
7
Thomas J. Allen
Administrative Law Judge