Coachella Valley Unified School District (PERB 2342E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ASAD ABRAHAMIAN,
Charging Party,
v.
COACHELLA VALLEY UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-5635-E
PERB Decision No. 2342
December 9, 2013
Appearances: Asad Abrahamian, on his own behalf; Fagen Friedman & Fulfrost by Milton E.
Foster, Attorney, for Coachella Valley Unified School District.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Asad Abrahamian (Abrahamian) to the proposed
decision (attached)
of
an administrative law judge (ALJ). Abrahamian's charge, as amended,
alleges that Coachella Valley Unified School District (District) violated the Educational
Employment Relations Act (EERA)1 when it placed him on paid administrative leave and,
subsequently, involuntarily transferred him to another school site because he engaged in
protected conduct. The ALJ concluded that although Abrahamian established a prima facie
case
of
retaliation, the District had met its burden
of
establishing that it would have placed him
on administrative leave and involuntarily transferred him, notwithstanding his protected
conduct.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

2
The Board has reviewed the entire record in the case, including the hearing record, the
ALJ's proposed decision, Abrahamian's exceptions and the District's response. The ALJ's
factual findings are supported by the record, and we adopt them as the findings
of
the Board
itself, except as noted below. The ALJ's conclusions with regard to Abrahamian's placement
on administrative leave and his involuntary transfer are in accordance with relevant law, and
we adopt them except as noted below.
For the reasons set forth below, the Board reverses the ALJ's· finding that Abrahamian
reported to the District cheating by students during the administration
of
the California
Standardized Test (CST) in 2009 and the California High School Exit Exam (CAHSEE) in
2009 and 2011, and the ALJ' s conclusion that Abrahamian engaged in conduct protected under
EERA, when he reported those cheating allegations to the District. We find instead that
Abrahamian reported to the District cheating by District teachers and conclude that such
reports are not protected conduct under EERA.
PROCEDURAL HISTORY
On November 30, 2011, Abrahamian filed an unfair practice charge alleging that the
District discriminated and retaliated against him by involuntarily transferring him for engaging in
protected conduct. 2 PERB' s Office
of
the General Counsel issued a warning letter on
February 15, 2012. The District submitted a position statement on February 21, 2012.
On March 9, 2012, Abrahamian filed an amended charge adding a new allegation
of
protected conduct during March
of
2011, and also alleging that he had been placed on
administrative leave for filing an unfair practice charge. The District filed a second position
statement on April 25, 2012.
2 The ALJ's proposed decision incorrectly stated that Abrahamian filed his unfair
practice charge on November 30, 2010. We conclude that this was a typographical error that
has no bearing on the outcome of the case.
2

The Office
of
the General Counsel issued a partial dismissal
of
Abrahamian's charges on
May 14, 2012. The Office
of
the General Counsel dismissed all
of
Abrahamian's allegations
regarding teacher cheating and the District's retaliation therefor as either untimely or for failing
to state a prima facie case. However, the Office
of
the General Counsel issued a complaint
regarding his allegation that he was placed on paid administrative leave for filing an unfair
practice charge. Abrahamian filed an appeal
of
the Board agent's partial dismissal on May 25,
2012.3
On June 4, 2012, Abrahamian moved to amend the complaint to add an allegation that he
was involuntarily transferred a second time because he had filed an unfair practice charge. The
parties met for an informal conference on June 25, 2012, but did not settle. On September 10,
2012, the case was transferred from ALJ Thomas J. Allen to ALJ Eric
J.
Cu. On September 14,
2012, the District filed an answer to the PERB complaint, a motion to deny Abrahamian' s
motion to amend the complaint, and three (3) motions in limine.
A formal hearing was held on September 18-20, 2012. At hearing, the ALJ granted
Abrahamian's motion to amend the complaint. The District's motions in limine were either
denied or resolved by stipulation between the parties.4
On December 14, 2012, Abrahamian filed a motion to reopen the record to present
evidence
of
additional adverse actions that allegedly took place after the close
of
hearing. This
3 We have since affirmed the partial dismissal. ( Coachella Valley Unified School
District (2013) PERB Decision No. 2335.)
4 The District's three motions in limine sought to exclude the testimony of
Abrahamian' s spouse, who had filed her own unfair practice charge against the District; sought
to exclude evidence and testimony related to Abrahamian's amendment to the complaint; and
sought to exclude evidence and testimony regarding the allegations which were dismissed by
the Office of the General Counsel on May 14, 2012. The parties stipulated that Abrahamian's
spouse would not testify and the District's other two motions in limine were denied.
3

motion was denied on January 15, 2013. The parties submitted their post hearing briefs
on or
before February 18, 2013. The ALJ issued his proposed decision
on
June 7, 2013.
On
June 26, 2013, Abrahamian filed forty nine (49) exceptions to the ALJ' s proposed
decision. The District requested an extension
of
time to file an opposition to Abrahamian' s
exceptions. On August 7, 2013, the District filed its opposition to Abrahamian's exceptions.
On
August 8, 2013,
PERB's
Appeals Assistant notified the parties that the filings were complete and
the matter was submitted to the Board.
FACTUAL SUMMARY
Abrahamian holds doctoral degrees in veterinary medicine and biology. He holds
teaching credentials for biology and chemistry in both Pennsylvania and California. The District
first hired Abrahamian as a probationary teacher for the 2007-2008 school year. Abrahamian
was assigned to teach chemistry and biology at Coachella Valley High School (CVHS).
Abrahamian' s first year evaluation rated him as meeting or exceeding District standards in all
categories.
During Abrahamian's tenure at CVHS, he observed and reported cheating by other
members
of
CVHS' s certificated staff during administration
of
the CST and the CAHSEE. 5
According to Abrahamian, his cheating reports proved to be a catalyst for a series
of
retaliatory
and discriminatory actions against him by the District. On or about June 1, 2011, Abrahamian
was involuntarily transferred from CVHS to West Shores High School (WSHS) for the 2011-
2012 school year.
Abrahamian's tenure at WSHS was problematic from the start. WSHS Principal
Rudy Wilson (Wilson) was unable to contact Abrahamian and was unsure
ifhe
was going to
5 We reverse the ALJ' s finding that Abrahamian reported student cheating on the CST
and CAHSEE to the District. The record clearly supports Abrahamian' s contention in his
exceptions that his reports were about teacher misconduct.
4

report for work at WSHS. Wilson was about to begin the process
of
finding a replacement for
Abrahamian when Wilson finally reached him. Abrahamian also missed several professional
development sessions that were part
of
a School Improvement Grant that WSHS had received for
2011-2012. In addition, once the school year began there arose an issue between Abrahamian
and Wilson regarding the amount
of
paper that Abrahamian needed for his students.
Abrahamian had developed an instructional packet that he wanted to issue to his students and he
was unable to issue the packet due to the restrictions on the amount
of
paper allotted to each
teacher at WSHS. Wilson doubled Abrahamian's paper allotment, but it still fell far short
of
what he needed to reproduce the packet for each
of
his students.
On September 6, 2011, Wilson held a conference with Abrahamian to discuss the paper
issue as well as other issues regarding his teaching. Wilson issued several directives to
Abrahamian regarding the use
of
his packets and his teaching methods. The "Conference
Summary" provided to Abrahamian specified that he would be subject to discipline
ifhe
failed to
follow Wilson's directives. Because Wilson did not have a background in science, he assigned
direct supervision
of
Abrahamian to WSHS Assistant Principal Richard Pimentel (Pimentel).
Thereafter, Pimentel observed Abrahamian's classes frequently and developed several concerns
about Abrahamian: Pimentel observed Abrahamian discussing his ongoing paper dispute during
class and telling WSHS student-athletes that they had to choose between being a student or being
an athlete.
Abrahamian and Wilson had a second conference on September 19, 2011. Wilson raised
Abrahamian's paper allotment to 4,500 pages per month (i.e., triple the paper allotment for all
other WSHS teachers) and issued several more directives ordering Abrahamian to stop
discussing his issues and disputes with the District and WSHS administration during class time
and to stop forcing students to choose between academics and extra-curricular activities. The
5

"Conference Summary" again specified that Abrahamian would be subject to discipline
ifhe
failed to comply with Wilson's directives. Nevertheless, Pimentel subsequently observed
Abrahamian contravening Wilson's directives by discussing the paper dispute during class time
and telling his students that the administration was trying to replace him.
On or about November 8, 2011, Abrahamian was placed on an assistance plan to improve
his classroom teaching. On November 30, 2011, Abrahamian filed his initial unfair practice
charge with PERB alleging that he had been involuntarily transferred to WSHS in retaliation for
his whistleblowing at CVHS regarding teacher misconduct during administration
of
the CST and
CAHSEE exams. On December 2, 2011, District Director
of
Human Resources,
Elaine Alexandres (Alexandres), issued Abrahamian a letter
of
reprimand. Alexandres' letter
noted a "repeated disregard"
of
Wilson's directives from the two September conferences,
reiterated those directives and warned Abrahamian that any failure to follow those directives
may result in further discipline.
On December 6, 2011, Wilson issued his own letter
of
reprimand to Abrahamian. The
impetus for Wilson's letter was an instance where Wilson provided Abrahamian information
about a student who was being bullied in his class. Abrahamian discussed the situation with the
bullied student within earshot
of
the students who were bullying him, which caused the bullied
student to stop attending WSHS. Additionally, Wilson received complaints from students about
Abrahamian's teaching. As a result, Wilson observed Abrahamian's class on two occasions.
During one
of
these observations, Wilson observed what he felt was ineffective teaching by
Abrahamian. After the second observation, a student told Wilson that Abrahamian made a
statement in class that he knew who was informing Wilson about what went on in class. These
three incidents became the subject of Wilson's letter of reprimand. The letter also informed
6

Abrahamian that he would be subject to discipline
if
he failed to comply with the directives in
the letter.
On February 15, 2012, Pimentel observed Abrahamian's class. When Pimentel entered
the class, Abrahamian told Pimentel that he was creating an uncomfortable situation for him and
that he could not teach under those circumstances. When Abrahamian asked Pimentel what he
wanted him to do, Pimentel directed Abrahamian to continue teaching. After a pause
of
about
thirty seconds, Abrahamian resumed a presentation about Charles Darwin and "survival
of
the
fittest." During the presentation Abrahamian used himself and the WSHS administration as an
example stating, "Dr. A is not the fittest because administration wants to get rid
of
him because
he will not adapt. I want you to tell your parents that administration is trying to drive Dr. A out
of
this school by being here. "6 Abrahamian also told Pimentel that he was sending a letter to his
students' parents about the administration's efforts to "get rid
of'
him. Pimentel wrote an
incident report to Wilson about the encounter. On February 16, 2012, Abrahamian was placed
on paid administrative leave pending an investigation. Abrahamian did not teach for the
remainder
of
the school year.
On June
1,
2012, the District involuntarily transferred Abrahamian to its independent
study program (ISP). Sometime during the Summer
of
2012, Abrahamian submitted two transfer
requests to fill open teaching positions at CVHS. Abrahamian was not offered either position.
In August
of
2012, Abrahamian met with Alexandres and District Superintendent Darryl Adams
(Adams) about his placement for the 2012-2013 school year. Abrahamian wanted to return to
CVHS, but Adams offered only to return him to WSHS. Abrahamian declined the offer to return
to WSHS.
6 Abrahamian referred to himself as "Dr. A" several times at hearing.
7

Although ISP follows a University
of
California approved curriculum, it does not have a
laboratory and, therefore, does not offer biology or chemistry courses. At ISP, teachers have to
teach all
of
the courses in the curriculum to the students who are assigned to them. As a result,
multiple teachers at ISP teach courses in subjects for which they are not credentialed.
PROPOSED DECISION
The complaint issued by the Office
of
the General Counsel alleged that the District
placed Abrahamian on administrative leave on February 16, 2012, because he had filed an unfair
practice charge against the District on or about November 30, 2011. On September 18, 2012, on
the first day
of
hearing, the ALJ granted Abrahamian's motion, over the District's objection, to
include Abrahamian's allegation that he was involuntarily transferred to the ISP on June 4, 2012,
in retaliation for filing his unfair practice charge. The ALJ framed the issue as, "Did the District
retaliate against Dr. Abrahamian for engaging in protected conduct?"
The ALJ noted that to demonstrate a discrimination or retaliation violation under EERA
section 3543.S(a), the charging party must show: (1) that the employee exercised rights
protected under EERA; (2) that the employer had knowledge that the employee exercised those
rights; (3) that the employer took adverse action against the employee; and (4) that the employer
took adverse action against the employee because
of
the exercise
of
those rights. (Novato
Unified School District (1982) PERB Decision No. 210.)
The ALJ concluded that Abrahamian had engaged in protected activity both when he
made allegations
of
students cheating on the CST and CAHSEE exams at CVHS and when he
filed his unfair practice charge with PERB on November 30, 2011. The ALJ also concluded that
the District knew
of
the unfair practice charge and both Alexandres and Wilson knew about
Abrahamian's cheating allegations at CVHS. The ALJ also concluded that the District's
8

placement
of
Abrahamian on paid administrative leave and his involuntary transfer to the ISP
were both adverse actions.
The ALJ then concluded that Abrahamian's cheating allegations were too remote in time
from the adverse actions to provide evidence
of
nexus, but he did conclude that the filing
of
the
unfair practice charge was in close temporal proximity to the adverse actions. The ALJ also
found that there were inconsistencies in the manner that the District handled Abrahamian' s
administrative leave and in its failure to follow its own personnel procedures. Therefore, the
ALJ concluded that Abrahamian had established a prima facie case
of
retaliation.
As Abrahamian had established a prima facie case
of
retaliation, the burden shifted to the
District to prove by a preponderance
of
the evidence that it would have taken the same actions
even
if
the charging party had not engaged in protected activity. The ALJ concluded that the
District would have placed Abrahamian on administrative leave and involuntarily transferred
him notwithstanding his protected activities. The ALJ found that the District had grave doubts
about whether Abrahamian could function effectively in the classroom and whether he was
capable and willing to follow Wilson's directives. The ALJ determined that it was these doubts
about Abrahamian, not his protected conduct that motivated the District's adverse actions.
DISCUSSION
Motion for a New Hearing
As a preliminary matter, in his statement
of
exceptions, Abrahamian asks for a new
"trial" that incorporates PERB complaints that were issued subsequent to the hearing in this case
and joins his wife as a party.7 It is unclear whether Abrahamian intends this as a motion to the
Board, or as an appeal
of
the ALJ' s ruling on his previous motion to reopen the record and
7 Abrahamian has informed us that on May 21, 2013, the Office
of
the General Counsel
issued another complaint against the District (PERB Case No. LA-CE-5785-E). In addition,
his spouse has two pending complaints against the District (Case Nos. LA-CE-5702-E and
LA-CE-5780-E).
9

amend his complaint, or as a requested remedy. Motions are normally filed with the Board agent
assigned to the proceeding, in this case, the ALJ. On January 15, 2013, the ALJ denied
Abrahamian's motion to reopen the record and amend his complaint after hearing. An ALJ's
ruling on a motion is generally not appealable unless the ALJ joins in the request and certifies
the matter to the Board. (PERB Reg. 32200 et seq.)8 That has not happened here.
While PERB regulations do not have a specific procedure for requesting a hearing
de novo, upon receiving exceptions to an ALJ' s decision, the Board may:
(
1)	
Issue a decision based upon the record
of
hearing, or
(2) 	Affirm, modify or reverse the proposed decision, order the
record re-opened for the talcing
of
further evidence, or take
such other action as it considers proper.
(PERB Reg. 32320(a).) Thus, the Board may remand a case to the ALJ for the purpose
of
taking
further evidence should it deem such action necessary. We find no compelling reason for
remanding this case for the talcing
of
further evidence. Abrahamian has been afforded a full
opportunity to present his contentions and supporting evidence in the instant case.
8 PERB Regulation 32200 "Appeal
of
Rulings on Motions and Interlocutory Matters,"
states:
A party may object to a Board agent's interlocutory order or
ruling on a motion and request a ruling by the Board itself. The
request shall be in writing to the Board agent and a copy shall be
sent to the Board itself. Service and proof
of
service pursuant to
Section 32140 are required. The Board agent may refuse the
request, or may join in the request and certify the matter to the
Board. The Board itself will not accept the request unless the
Board agent joins in the request. The Board agent may join in the
request only where all
of
the following apply:
(a) 	The issue involved is one
of
law;
(b) The issue involved is controlling in the case;
(c) 	An immediate appeal will materially advance the resolution
of the case.
10

Nor do we find it necessary or appropriate to allow Abrahamian an opportunity to
relitigate the instant case in a subsequent hearing regarding a separate unfair practice charge.
The Office
of
the General Counsel has issued a complaint regarding the District's post-hearing
conduct and Abrahamian will have an opportunity to present his case and relevant evidence at
the hearing on that complaint. With regard to joining Abrahamian's case with his spouse's,
Abrahamian' s brief states that either the Office
of
the General Counsel or the ALJ assigned to
the case has suggested that his and his spouse's post-hearing cases be joined. Thus,
Abrahamian's request is merely another request to reopen the instant case and combine it with
his and his spouse's pending complaints. We decline to do so.
Although Abrahamian claims that there is new evidence, and that certain evidence was
either not considered or misrepresented by the ALJ in writing his proposed decision, we
conclude, after a review
of
the entire record
of
hearing and the exhibits submitted by both
parties, that all evidence relevant to this case was submitted and duly considered by the ALJ.
Abrahamian has not demonstrated that there is any new admissible and relevant evidence that
would warrant remand or a new hearing in this matter. We affirm the ALJ' s denial
of
Abrahamian' s motion to reopen the record and amend his complaint after hearing.
Charging Party's Exceptions
Abrahamian takes forty nine (49) exceptions to the ALJ' s proposed decision. One
of
those exceptions is to the procedural history and twenty nine (29) are to the ALJ' s findings
of
fact. 	We conclude that the ALJ' s procedural history and findings
of
fact, including his
credibility determinations
of
the witnesses who testified, are largely accurate and supported by
the testimony and exhibits presented at hearing. While there may have been a minor inaccuracy
or two in the ALJ' s findings, those inaccuracies would not have changed the outcome of his case.
Accordingly, Abrahamian's first thirty (30) exceptions are overruled.
11

Abrahamian's next nineteen (19) exceptions are to the
ALJ's
conclusions
oflaw.
We
conclude that two (2)
of
them merit discussion. We overrule Abrahamian's other seventeen (17)
exceptions.
Protected Activity
Abrahamian takes exception to the
ALJ'
s statement that Abrahamian "claims that the
adverse actions were taken because he reported what he believed to be students cheating
on
standardized tests." In relevant part, Abrahamian takes exception to the
ALJ'
s statement that his
complaints were about student cheating. Abrahamian claims that his reports concerned teachers
cheating on the CST and CAHSEE at CVHS. In the record
of
hearing, the ALJ interchangeably
refers to both student and teacher cheating. The confusion may lie in the fact that Abrahamian
actually reported that teachers were helping and encouraging students to cheat on the CST and
CAHSEE in 2009 and 2011 at CVHS. Nevertheless, the gravamen
of
his reports to the District
school board and superintendent was that teachers were involved in, and even encouraging
cheating. Both the record
of
hearing and Abrahamian's unfair practice charge, as amended,
support his contention that his reports concerned teacher misconduct, not student misconduct,
during standardized testing at CVHS.
We conclude that Abrahamian's conduct in reporting cheating by teachers is not
protected conduct under EERA. PERB' s jurisdiction is limited to the determination
of
unfair
practices arising under EERA and the other public sector labor statutes which we administer.
Whistleblowing in California K-12 public schools is protected under section 44100 et seq.,
of
the
Education Code. It is well established under PERB precedent that we do not have jurisdiction to
enforce the Whistleblower Act or pure Education Code violations. (See Union
of
American
Physicians & Dentists (Menaster) (2007) PERB Decision No. 1918-S;Alvord Educator's
Association (Bussman) (2009) PERB Decision No. 2046; American Federation
of
State, County
12

and Municipal Employees, Council 36 (Moore) (2011) PERB Decision No. 2165-M;
San Francisco Unified School District (2009) PERB Decision No. 2040; Wygant
v.
Victor Valley
Joint Union High School Dist. (1985) 168 Cal.App.3d 319, 323.) However, PERB does have
jurisdiction to interpret the Education Code whenever it is necessary to administer EERA. (See
Barstow Unified School District (1996) PERB Decision No. 1138a; San Bernardino City Unified
School District (1989) PERB Decision No. 723.) Although an employee engages in EERA
protected activity when individually seeking to enforce rights stated in a collective bargaining
agreement (CBA) or when employees jointly prosecute alleged violations
of
workplace rights
(Jurupa Unified School District (2012) PERB Decision No. 2283, at p. 31), Abrahamian's
reporting
of
alleged cheating by teachers did not seek to enforce employee workplace rights or
rights stated in the CBA. Thus, it is not protected under EERA.
The protected activity in this case instead concerned Abrahamian's filing
of
an unfair
practice charge with PERB. As the ALJ pointed out, filing an unfair practice charge with PERB
is itself protected activity. (Proposed Dec., at p.
13
citing San Bernardino City Unified School
District (1998) PERB Decision No. 1270 [filing an unfair practice charge or a grievance is
protected activity].) Since Abrahamian has engaged in protected conduct by sheer virtue
of
filing an unfair practice charge, the merit
of
the underlying charge is not itself at issue and the
alleged protected
activity-the
reporting
of
cheating by other
teachers-need
not be addressed.
Adverse Action
Abrahamian takes exception to the ALJ' s conclusion that his consent was not required
under Education Code section 44865 prior to the District's transferring him to the
ISP.
The ALJ
determined that Abrahamian's argument was rejected in California Teachers' Association
v.
Governing Board
of
Central Union High School District (1983) 141 Cal.App.3d 606,616
(Central Union). However, the ALJ's reliance on Central Union is misplaced. Central Union
13

involved the involuntary reassignment under section 44865
of
a teacher holding a general
secondary credential. The court concluded that consent was not required for a teacher holding a
general credential since that assignment was within the scope
of
the credential. The court
distinguished, however, teachers who were being transferred to an assignment outside the scope
of
their credential.
There is good reason for the requirement
of
consent
if
a teacher is
assigned outside the scope
of
his or her expertise. Evaluation is
made on the basis
of
performance
of
the assigned task. A teacher
may be unwilling to risk a critical evaluation while teaching
outside the ambit
of
his or her credential.
(Id. at p. 612.) Section 44865 allows school districts to assign teachers outside
of
the scope
of
their credential to certain enumerated special schools or programs, including independent study,
but it may only do so with the consent
of
the teacher. The court in Central Union found that the
teacher in that case was transferred to an assignment within his credential and, therefore, his
consent was not required.
At hearing, the District presented testimony that its "credential specialist" had determined
that Abrahamian's credential allowed his assignment to the ISP without his permission.
Abrahamian submitted a copy
of
his California Preliminary Single Subject Teaching Credential
as an exhibit. Abrahamian's credential authorizes him to teach biological sciences and chemistry
"in grades twelve and below, including preschool, and in classes organized primarily for adults."
However, it is unclear, based on the testimony and exhibits, whether his credential is strictly
limited to those subjects or allows him to teach other classes. We find the conflicting evidence
presented at hearing to be inconclusive. However, because the ALJ determined that
Abrahamian' s assignment to the ISP was adverse to Abrahamian on other grounds, we conclude
that there is no need to remand the issue for further evidence.
14

CONCLUSION
We conclude with the ALJ that although Abrahamian proved a prima facie case for
retaliation, the District established its affirmative defense that it both had alternative, non-
retaliatory reasons for its involuntary transfers
of
Abrahamian and acted because
of
those
reasons. (Palo Verde Unified School District (2013) PERB Decision No. 2337 [once the
charging party presents a persuasive prima facie case that the employer acted against an
employee because
of
the employee's protected conduct, the employer must then demonstrate
persuasively that it had both a permissible (alternative and non-discriminatory) reason for its
action and that it acted because
of
this reason and not the employee's protected conduct].)
ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law, and the entire record
in the case, we conclude that the Coachella Valley Unified School District did not violate the
Educational Employment Relations Act when it involuntarily transferred Asad Abrahamian
during the 2011-2012 and 2012-2013 school years. The complaint and underlying unfair
practice charge in Case No. LA-CE-5635-E are hereby DISMISSED WITHOUT LEAVE TO
AMEND.
Chair Martinez and Member Banks joined in this Decision.
15

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ASAD ABRAHAMIAN,
Charging Party,
v.
COACHELLA VALLEY UNIFIED SCHOOL
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5635-E
PROPOSED DECISION
(June 7, 2013)
Appearances: Asad Abrahamian, on his own behalf; Fagen, Friedman & Fullfrost by Brian D.
Bock and Milton E. Foster III, Attorneys, for Coachella Valley Unified School District.
Before Eric J. Cu, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a public school employee alleges that his public school employer violated
the Educational Employment Relations Act (EERA)1 by placing him on administrative leave
and transferring him to a different assignment in retaliation for protected activities. The
employer denies any violation.
On November 30, 2010, Dr. Asad Abrahamian filed the instant unfair practice charge
with the Public Employment Relations Board (PERB or Board) against the Coachella Valley
Unified School District (District). On May 14, 2012, the PERB Office
of
the General Counsel
dismissed the allegation that the District unlawfully transferred him from Coachella Valley
High School (CVHS) to West Shores High School (WSHS) in 2011 after concluding that the
claim was untimely and that there was no connection alleged between the transfer and any
protected activity. On the same day, the General Counsel's Office issued a complaint alleging
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

that the District placed Dr. Abrahamian on administrative leave in 2012 in retaliation for his
participation in the PERB unfair practice charge process. 2
On June 4, 2012, Dr. Abrahamian moved to amend the PERB complaint to add the
allegation that the District transferred him to its Adult Education, Independent Studies (IS)
Program. That motion was taken under submission. An informal settlement conference was
held on June 25, 2012, but the matter did not settle. A formal hearing was scheduled for
September 18-20, 2012.
On September 10, 2012, the case was transferred to Administrative Law Judge Eric J.
Cu (ALJ). The parties were notified
of
the transfer by letter and were further notified to be
prepared to address Dr. Abrahamian's proposed amendments. Neither party objected.
On September 14, 2012, the District filed an answer to the PERB complaint denying the
substantive allegations and asserting different affirmative defenses. It simultaneously filed its
opposition to Dr. Abrahamian's motion to amend the complaint and three motions in limine.
On September 18, 2012, the first day
of
hearing, the ALJ granted Dr. Abrahamian's
motion to amend the complaint. All
of
the District's motions were either denied or resolved by
stipulation between the parties.3
Dr. Abrahamian finished his testimony on September 19, 2012. He requested that
PERB order additional witnesses to testify on his behalf but the ALJ denied the request. He
2 Dr. Abrahamian has appealed the partial dismissal to the Board itself. That appeal is
currently pending. This proposed decision has no effect on the outcome of that appeal.
3 One such stipulation was that Dr. Abrahamian agreed not to call his wife, Dr. Shaleh
Mazdeh, as a witness. Because of that agreement, the ALJ declined to rule on the District's
motion to exclude her testimony. The ALJ informed the parties that he would reconsider the
motion if Dr. Abrahamian later decided that Dr. Mazdeh's testimony was necessary. After the
hearing, on February 18, 2013, Dr. Abrahamian alleged that Dr. Mazdeh was precluded from
testifying. The ALJ corrected him on what transpired at the hearing.
2

did state that he would entertain a valid subpoena for witnesses if one was submitted. No
subpoenas for witnesses were submitted during the remainder of the hearing.
On September 20, 2012, the last day of hearing, the District presented its case in chief.
The ALJ informed Dr. Abrahamian that he had the right to present a case in rebuttal "to
present ... evidence that responds to the evidence that was presented here by [the District's
counsel]." Dr. Abrahamian replied that he had no additional witnesses.
On December 14, 2012, Dr. Abrahamian filed a motion to reopen the record to present
evidence of additional adverse actions occurring after the close of the hearing. That motion
was denied on January 15, 2013.
The parties filed closing briefs on or before February 18, 2013. At that point, the
record was closed and the matter was submitted for decision.
FINDINGS OF FACT4
The Parties
The District is a public school employer within the meaning of EERA
section 3543.l(k). Dr. Abrahamian is a public school employee within the meaning of EERA
section 3543.lG) and is employed at the District as a teacher. Teachers at the District are in a
bargaining unit that is represented by a union. The District and the union are parties to a
Collective Bargaining Agreement (CBA) that was not provided for the record.
4 Dr. Abrahamian frequently referenced facts in his closing brief that were not
supported by the evidence in the record. This includes, but is not limited to, incidents that
were expressly excluded from the record by rulings on objections, the ALJ's ruling on the
post-hearing motion to amend the complaint, and the General Counsel's partial dismissal of
claims prior to the issuance of the complaint. Reference to those facts will be ignored. Even
his discussion about incidents relevant to the complaint contain several details unsupported by
the record. These references will also not be relied upon in this proposed decision and will be
noted, where relevant. However, even considering these numerous unsupported factual
references, it does not substantially alter the outcome of this proposed decision.
3

Dr. Abrahamian's Teaching Experience
Dr. Abrahamian holds doctorate degrees in veterinary medicine and biology and is
credentialed to teach high school biology and chemistry in both California and Pennsylvania.
He first began teaching those subjects in 1971. He has published numerous scholarly articles
in the field of biology and pathology. He testified that he left prior teaching, in part, because
he was not assigned biology and chemistry courses.
Dr. Abrahamian's Assignment to CVHS5
Dr. Abrahamian was hired by the District as a probationary teacher on June 25, 2007.
He was assigned to teach biology and chemistry at CVHS for the 2007-2008 school year. His
wife, Dr. Mazdeh, was hired as a math teacher around the same time.
During the 2007-2008 school year, Dr. Abrahamian received a performance evaluation
rating him as meeting or exceeding the District's expectations in all categories.
Dr. Abrahamian received other performance evaluations during his tenure at the District, but
· the District did not retain any records of those evaluations for reasons unknown.
The 2011-2012 School Year
The District involuntarily transferred Dr. Abrahamian from CVHS to WSHS for the
2011-2012 school year. WSHS received a School Improvement Grant (SIG) that year which
provided additional funding for hiring and training effective teachers.
As part of the SIG, WSHS teachers received seven additional days of professional
development prior to the beginning of instruction for the 2011-2012 year. WSHS Principal
Rudy Wilson informed all WSHS faculty about the scheduled training dates. Some training
5 Allegations of adverse actions taken against Dr. Abrahamian in 2011 were dismissed
by the General Counsel's Office and are currently subject to appeal. Information relating to
Dr. Abrahamian's tenure at CVHS are described here only briefly for background purposes.
4

sessions were held at Wilson's private ranch. Dr. Abrahamian did not attend all sessions due
to a misunderstanding about when the school year began. 6
During their first meeting in mid-August 2011, Dr. Abrahamian tried to explain to
Wilson that he (Dr. Abrahamian) was transferred to WSHS after reporting that students were
cheating on standardized tests. Dr. Abrahamian believed that such cheating was one of
multiple conspiracies occurring at CVHS. Wilson requested that Dr. Abrahamian not involve
him in those issues. Around that time, Dr. Abrahamian also met with the District Executive
Director of Human Resources Elaine Alexandres to discuss his assignment. He made the same
cheating claims to her at that time.
Student instruction at WSHS began late in August 2011. Dr. Abrahamian was assigned
biology, chemistry and earth science courses. Wilson allotted 1,500 sheets of paper per month
to each teacher for photocopying instructional materials. Dr. Abrahamian requested 500 sheets
of paper for each of his 125 students, for a total of 62,500 sheets, roughly 50,000 more than
what other teachers received. 7 Dr. Abrahamian had a large packet of teaching materials
(presumably 500 pages long), that he wanted to give each student by the end of the year.8
Wilson rejected the request and expressed concern that Dr. Abrahamian's packets were
supplanting, rather than supplementing, existing District-approved textbooks and other
curriculum materials. He also said that he could not justify the cost of all the paper
6 Dr. Abrhamian references the content of those trainings and the salary he lost by not
attending in his closing brief. However, those references are not supported by evidence in the
record.
7 Dr. Abrahamian asserts in his closing brief that other teachers had unlimited access to
copy paper. These assertions are not supported by evidence in the record.
8 Dr. Abrahamian's detailed description of the content of his packets is not supported
by evidence in the record. In fact, he affirmatively decided against including his packets as
part of the evidentiary record.
5

Dr. Abrahamian was requesting. Wilson allotted Dr. Abrahamian an additional 1,500 pages to
allow him to transition to using the District curriculum.9
However, Dr. Abrahamian continued to believe that his packets were effective
instructional tools and that his paper request, over the course
of
the year, was reasonable.
He accordingly did not relent in his demands for additional paper. Around that time, parents
began complaining to Wilson about Dr. Abrahamian' s teaching. Among the complaints were
that Dr. Abrahamian did not manage instructional time effectively, that students were not using
their textbooks, and that Dr. Abrahamian's worksheets had no clear correlation to his lessons.
The First Conference Summary
On September 6, 2011, Wilson held a conference with Dr. Abrahamian about the paper
issue and about his concerns over Dr. Abrahamian's teaching. Also in attendance were WSHS
Assistant Principal Richard Pimentel, union representative Krystal Gallindo, and Dr. Mike
Jones, who oversaw implementation
of
the SIG. During the conference, Wilson expressed his
opinion that Dr. Abrahamian's behavior had a negative effect on learning at WSHS. He also
explained classrooms must be kept unlocked because SIG observers may visit and Wilson felt
it was disruptive to unlock the door during every visitation. Wilson issued Dr. Abrahamian a
number
of
directives, that were later reduced to writing in a "Conference Summary" dated
September 8, 2011. Specifically, he ordered Dr. Abrahamian to:
• 	Work directly with Mr. Pimentel on appropriate use
of
instructional time
• 	Follow the state-adopted curriculum
9 Dr. Abrahamian asserts in his closing brief that Wilson refused to provide him with
the District science curriculum. No evidence of either Dr. Abrahamian's request or Wilson's
refusal was produced for the record. Nor was evidence produced about the quality of the
District curriculum, other than Dr. Abrahamian's conclusory statements.
6

• 	Collaborate with the science department on common
assessments and objectives
• 	Use note taking instead in lieu of the packets
• 	Communicate all requests [for paper or other supplies]
through the principal
• 	Leave the entry door to the classroom unlocked and
accessible.
Wilson stated that failure to follow his directives would result in discipline.
Wilson assigned Pimentel to supervise Dr. Abrahamian directly because both had
science backgrounds. Pimentel began conducting regular observations of Dr. Abrahamian's
class. Wilson also suggested that Dr. Abrahamian observe other teachers' classroom
management techniques.
Pimentel observed Dr. Abrahamian raise his ongoing dispute over paper during class.
Dr. Abrahamian admitted saying to his class "I won't be able to give [the next chapter of
materials] to you because there is a restriction on the use of the copy machine." Pimentel also
observed Dr. Abrahamian informing student football and volleyball players that they needed to
choose between being a student and being an athlete after they had missed some class time.
Pimentel instructed Dr. Abrahamian that it was District policy to give those students the
opportunity to catch up on missed work. 10
The Second Conference Summary
On September 19, 2011, Wilson held another conference with Dr. Abrahamian. A
union representative also attended. The issue of paper and other supplies was discussed again.
10 Dr. Abrahamian asserts in his closing brief that Wilson encouraged student-athletes
to miss his class and that there was no way for students to redo missed laboratory experiments.
These facts are not supported by evidence in the record.
7

Wilson explained that the vast majority
of
SIG money was allocated for salaries, training, and
technology and only a small fraction could be spent on supplies. Nevertheless, Wilson allotted
Dr. Abrahamian an additional 1,500 sheets
of
paper, for a total
of
4,500 sheets that month.
However, Wilson directed Dr. Abrahamian to use the District curriculum and not his packets as
his primary instructional materials. 11 Wilson also directed Dr. Abrahamian not to discuss
personnel issues or his disputes with District administration, with students during instructional
time, and not to force students to choose between class and District-sanctioned extra-curricular
activities. Finally, Wilson acknowledged Dr. Abrahamian's right to voice concerns about
personnel issues, but said it was not appropriate to render unfounded accusations about
conspiracies against him. Wilson directed Dr. Abrahamian to cease doing the latter during the
school day unless he had a basis for those accusations. Those directives were included in a
second conference summary, dated September 21, 2011. The conference summary stated that
failure to comply with the directives would result in discipline.
Pimentel continued to have concerns about Dr. Abrahamian's teaching. During
subsequent observations, Pimentel heard Dr. Abrahamian say "I have run out
of
copies. I have
asked the administration a couple
of
times and they have accommodated. But I don't have any
more paper to help you." He also said that student instruction would be negatively affected
because
of
his lack
of
paper and there was not anything he could do about it. Pimentel also
observed Dr. Abrahamian state "who does not want me to be your teacher? The administration
does not want me to be your teacher."
12
Pimentel reported these concerns to Wilson.
11
Dr. Abrahamian implies that Wilson's explanations are incorrect because the District
had funds for a $9 million tablet computer initiative. However, no evidence about that
initiative was produced for the record.
12
Dr. Abrahamian admits making the first of the two quoted statements, but denies
making the second. Pimentel' s testimony is credited over that of Dr. Abrahamian because it is
consistent with other statements Dr. Abrahamian admits to making.
8

The Assistance Plan
In November 2011, Wilson and Pimentel placed Dr. Abrahamian on an Assistance Plan.
Their primary concerns were Dr. Abrahamian's poor classroom management and the lack of
quality instruction relating to the District science curriculum. Under the plan, Dr. Abrahamian
was to work with Pimentel and the WSHS science department on improving use of instruction
time and District curriculum. Wilson also instructed Dr. Abrahamian to work with three other
teachers about improving classroom management. Finally, he was to meet regularly with
Wilson and Pimentel.
Pimentel began working with Dr. Abrahamian under the terms of the assistance plan
and, for a short period of time, he felt Dr. Abrahamian's teaching improved.
The December 2, 2011 Letter of Reprimand
Wilson kept Alexandres informed about his concerns with Dr. Abrahamian. By
December 2011, Alexandres determined that the cumulative effect of Dr. Abrahamian's
conduct was worthy of formal discipline. On December 2, 2011, she issued Dr. Abrahamian a
letter of reprimand for repeatedly disregarding Wilson's directives. In the letter of reprimand,
Alexandres referenced each of the two conference summaries and Pimentel' s observation
reports. 	She reiterated the directives in the conference summaries and stated that failure to
follow the directives would result in further discipline. Pimentel was not aware that the letter
of reprimand had issued.
The December 6, 2011 Letter of Reprimand
Wilson continued receiving complaints from students about Dr. Abrahamian in
November 2011. One common complaint was that Dr. Abrahamian's classes were not
productive. Another student complained to Wilson that Dr. Abrahamian said "I know who is
9

telling Mr. Wilson everything. It is the students who are never here."13 In addition, Wilson
also received a complaint about Dr. Abrahamian's decision to publicly share confidential
information Wilson shared with him about a bullied student.14
On December 6, 2011, Wilson issued Dr. Abrahamian a second letter of reprimand. In
the letter, Wilson directed Dr. Abrahamian not to publicly disclose confidential or sensitive
student information, to observe other teachers' classroom management techniques, and to not
threaten or discourage students from reporting concerns to District administration. Wilson
informed Dr. Abrahamian that failure to follow his directives would result in further discipline.
Placement on Administrative Leave
On February 15, 2012, Pimentel visited Dr. Abrahamian's class during a science
presentation. Dr. Abrahamian admitted during the hearing that he was frustrated by what he
felt were frequent visits and said to Pimentel "this is [a] discomforting, uncomfortable situation
you are creating." He also said "I would have to sit here and wait for you to really do your
work and go before I can teach. What else do you want me to do?" He then sat down and
ceased his presentation. Pimentel directed Dr. Abrahamian to continue with his lesson.
After a brief pause, Dr. Abrahamian resumed. When the presentation came to the issue
of Charles Darwin and his theory of "survival of the fittest," Dr. Abrahamian said "let's say
Dr. A is not liked by his boss and his boss comes in and just says this is wrong, this is this, this
is that. Well, Dr. A could either leave by himself, or Dr. A could actually stay here until he is
eliminated by the system."15 Dr. Abrahamian admitted to making that statement, but said it
13 Dr. Abrahamian denies making this statement but did not confirm or deny that a
student made that complaint to Wilson.
14 Dr. Abrahamian asserts that he knew about the bullied student before being informed
by Wilson, but this information is not supported by evidence in the record.
15 During the hearing, Dr. Abrahamian referred to himself as "Dr. A."

was only a hypothetical example. However, there is no evidence in the record that he
explained the hypothetical nature of his statement to the class or to Pimentel.
According to Pimentel, Dr. Abrahamian then said "I want you to tell your parents that
administration is trying to drive Dr. A out of this school by being here." He then took out a
document and said to Pimentel that "I'm sending this letter to parents that you're trying to get
rid of me." He instructed a student to read the document out loud, but the student did not
comply. 16 Pimentel never saw the text of the document. Pimentel reported the incident to
Wilson and Alexandres.
On February 16, 2012, Alexandres issued Dr. Abrahamian a letter stating:
You are hereby placed on administrative leave with pay
effectively immediately, due to a pending investigation.
You are directed not to be on District property or in contact with
students or employees of the District. If for any reason you need
to come on any District property, please contact my office in
advance.
Dr. Abrahamian would not return to the classroom for the remainder of year.
Dr. Abrahamian's Assignment for 2012-2013
On June 1, 2012, the District involuntarily transferred Dr. Abrahamian to the IS
Program for the 2012-2013 school year. Dr. Abrahamian filed a grievance over the
assignment. In August 2012, Dr. Abrahamian met with Alexandres and other District
representatives to discuss both his pending grievance and his 2012-2013 assignment, but the
two sides did not resolve their disagreements. Dr. Abrahamian applied for health and biology
positions at CVHS, but neither application was approved.
16 Dr. Abrahamian denies that this occurred. Pimentel's testimony is credited over that
of Dr. Abrahamian because it is consistent with Dr. Abrahamian's other conduct.
11

The IS Program is part
of
the Adult Alternative Complex, which houses different
alternative education programs. The principal
of
the Adult Alternative Complex is Jereme
Weischedel. Dr. Abrahamian is one
of
three full-time
IS
teachers. There were also around
26 part-time teachers. Teachers share classroom space and meet with students one-on-one for
approximately one hour per week to go over assignments, deliver instruction, and administer
tests. The IS Program administers the same curriculum as the District's traditional classes with
some notable differences. First, a single teacher instructs each student in all subjects for that
year. 	Second, instruction is provided one subject at a time, in a concentrated form. 	Students
typically perform 20-30 hours
of
work per week for 3 weeks to complete a subject. Third, the
IS Program has no laboratory science classes such as biology or chemistry.
17
According to Weischedel, most IS students are minors that do not thrive in a traditional
classroom. Weischedel described the Adult Alternative Complex as "a very safe place,"
because students do not typically stay on campus for longer than needed to receive their
assignments and meet with instructors.
While at the IS Program, Dr. Abrahamian was required to teach subjects, such as
English, that he had no training in and had never taught before. However, Dr. Abrahamian was
just one
of
multiple teachers in the IS Program that taught subjects for which they were not
credentialed. Those assignments are permissible under the Education Code.
Dr. Abrahamian met with Weischedel on the first day
of
the 2012-2013 school year.
After observing a black dome device in some
of
the classrooms, Dr. Abrahamian expressed his
belief he was being monitored by video camera. Weischedel assured Dr. Abrahamian that the
devices were not cameras, but were used to amplify a teacher's voice during instruction,
particularly when working with students whose primary language was not English.
17
Dr. Abrahamian asserts in his closing brief that instruction at the IS Program does not
comply with State standards but this assertion is not supported by evidence in the record.
12

Unconvinced, Dr. Abrahamian affixed a piece
of
paper in front
of
one
of
the devices, only to
find the paper removed the next day. According to Dr. Abrahamian, this was evidence that the
devices were, in fact, cameras. At Dr. Abrahamian's request, Weischedel allowed
Dr. Abrahamian to share classroom space with his wife, who was also transferred to the
IS Program that year.
ISSUE
Did the District retaliate against Dr. Abrahamian for engaging in protected activity?
CONCLUSIONS OF LAW
To demonstrate that an employer discriminated or retaliated against an employee in
violation
of
EERA 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 (Novato USD).)
1.
	Protected Activity
The first element
of
a prima facie case is whether Dr. Abrahamian engaged in activity
protected under EERA.
a.
	Protected Activity Alleged in the PERB Complaint
The PERB complaint alleges that Dr. Abrahamian engaged in protected activity by
filing and pursuing the instant unfair practice charge starting on November 30, 2011. PERB
has held that participation in the PERB unfair practice charge process is protected under
EERA. (San Bernardino City Unified School District (1998) PERB Decision No. 1270.) The
District does not dispute this conclusion.
13

b. 	Protected Activities
Not
Alleged in the PERB Complaint
Dr. Abrahamian also alleges retaliation based on protected activities not described in
the PERB complaint. Namely, he claims that the adverse actions were taken because he
reported what he believed to be students cheating
on
standardized tests. PERB has held that it
may consider previously unalleged protected activities where:
(1) adequate notice and opportunity to defend has been provided
the respondent; (2) the acts are intimately related to the subject
matter
of
the complaint and are part
of
the same course
of
conduct; (3) the unalleged [issue] has been fully litigated; and
(4) the parties have had the opportunity to examine and be cross-
examined on the issue.
(Lake Elsinore Unified School District (2012) PERB Decision No. 2241 (Lake Elsinore USD),
citing County
of
Riverside (2010) PERB Decision No. 2097-M; Fresno County Superior Court
(2008) PERB Decision No. 1942-C; Tahoe-Truckee Unified School District (1988) PERB
Decision No. 668.) This is the same standard used for evaluating unalleged violations. (Ibid.)
In Lake Elsinore USD, supra, PERB Decision No. 2241, the Board found insufficient
grounds to consider a union's previously unalleged protected activities, where the activities
were not mentioned in the underlying unfair practice charge, and the employer was not
otherwise informed
of
the new retaliation theory until reading the union's closing brief.
In the present case, the District had ample notice
of
Dr. Abrahamian's cheating
complaints as well as his belief that the District was retaliating against him because
of
those
complaints. He levied that accusation against the District early and often, including multiple
times during the formal hearing. Unlike in Lake Elsinore USD, supra, PERB Decision
No. 2241, those allegations were raised in Dr. Abrahamian's underlying unfair practice charge.
The District was further put on notice when the PERB General Counsel's Office stated its
opinion that Dr. Abrahamian's cheating allegations were protected under EERA in its partial
14

dismissal letter. 18
Moreover, the ALJ overruled the District's objections to exclude evidence
of
the cheating allegations. 19
The District also questioned its own witnesses about the
relationship between the cheating allegations and the adverse actions. Accordingly, all
of
the
criteria for considering the cheating claims as protected activity are met in this case.
EERA section 3 543 expressly protects public employees' "right to represent themselves
individually in their employment relations with the public school employer." This right to self-
representation is protected only to the extent that it amounts to
"a
logical extension
of
group
activity." (Oakdale Union Elementary School District (1998) PERB Decision No. 1246, citing
Meyers Industries (1984) 268 NLRB 493, 497.) In other words, the issue raised must impact
employees generally. (Los Angeles Unified School District (2003) PERB Decision No. 1552.)
In County
of
Riverside (2009) PERB Decision No. 2090-M, the Board found that an individual
engaged in protected self-representation by complaining that unlicensed contractors were
unlawfully directing the work
of
licensed engineers like himself and his colleagues. In
contrast, in San Joaquin Delta Community College District (2010) PERB Decision No. 2091,
PERB held that an employee's complaints about reductions to his own teaching assignment
were not protected because they were made solely for his own benefit.
20
18
The District's assertion that Dr. Abrahamian's cheating allegations were dismissed
by the General Counsel's Office is not accurate. As explained above, certain retaliation claims
were dismissed, but those dismissals have no bearing on whether Dr. Abrahamian' s reports on
cheating were protected under EERA.
19The ALJ initially excluded evidence about the cheating allegations, but he later
reversed that ruling and allowed both parties to present evidence on that issue.
20
It is for this reason that Dr. Abrahamian's complaints about Wilson's directives about
paper usage and other issues concerning Dr. Abrahamian's individual personnel disputes with
Wilson are not protected under EERA.
15

In this case, Dr. Abrahamian testified that he reported concerns about students cheating
on standardized tests to the District's superintendent, its governing board, and to both
Alexandres and Wilson in June and August of 2011. As in County of Riverside, supra, PERB
Decision No. 2090-M, Dr. Abrahamian's claims relate to teachers' job duties and possible
illegal activity. These claims are therefore protected under EERA.21
2. 	Knowledge
The District admits to knowing about Dr. Abrahamian's unfair practice charge activity.
Likewise, it has not presented any evidence disputing that Dr. Abrahamian reported his
cheating concerns to both Alexandres and Wilson in August 2011. This is sufficient to satisfy
the knowledge element of a prima facie case.
3. 	Adverse Action
The third element of a prima facie case is whether Dr. Abrahamian suffered an adverse
employment action. PERB considers objective criteria when deciding whether an employer
has committed an adverse employment action. (Palo Verde Unified School District (1988)
PERB Decision No. 689.) 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 supplied;
fn. omitted.)
21 Dr. Abrahamian also filed a grievance over his transfer in June 2012. Filing
grievances is protected under EERA. (Los Angeles Unified School District (2012) PERB
Decision No. 2244.) However, this protected activity cannot form the basis for
Dr. Abrahamian's retaliation claims under these facts because it occurred after the adverse
actions. (Oxnard Union High School District (2010) PERB Decision No. 2265.)
16

In this case, the PERB complaint alleges two adverse actions. Dr. Abrahamian also
eludes to other adverse actions as well. Each will be discussed separately below.
a.
	Placement on Administrative Leave
PERB has held that "the District's imposition
of
involuntary [paid] leave is a form
of
adverse action." (Oakland Unified School District (2003) PERB Decision No. 1529 (Oakland
USD), citing California State University, Hayward (1991) PERB Decision No. 869-H;
California State University, Long Beach (1987) PERB Decision No. 641-H (CSULB).)
Therefore, placing Dr. Abrahamian on administrative leave is an adverse action in this case.
The District's arguments to the contrary are rejected.
b. 	Transfer to the IS Program
The PERB complaint also alleges that the District took further adverse action against
Dr. Abrahamian by transferring him to the IS Program for the 2012-2013 school year. Loss
of
pay or benefits are not the sole factors when considering whether an involuntary transfer is
objectively adverse to employment. (Compton Unified School District (2003) PERB Decision
No. 1518 (Compton USD).) However, where salary, benefits, and job duties remain the same,
the charging party bears the burden
of
proving the transfer caused some other negative change
to working conditions. (County
of
San Diego (2012) PERB Decision No. 2258-M.) In other
words, the charging party must "present facts demonstrating that a reasonable employee would
consider the transfer an adverse action." (Alvord Unified School District (2009) PERB
Decision No. 2021, citing Compton USD.)
In San Joaquin Delta Community College District (1982) PERB Decision No. 261
(San Joaquin Delta CCD), PERB held that an employer's reassignment of a police officer to a
groundskeeper was an adverse employment action even though his salary and benefits did not
change. Noting that the employee had extensive experience and training as a police officer, the
17

Board reasoned that a reasonable person would find the reassignment adverse because it denied
the employee the ability to pursue his chosen profession.
In this case, Dr. Abrahamian's interest in teaching biology and chemistry spans more
than 40 years. He is not only credentialed to teach these subjects, but also has two related
doctorate degrees and has authored multiple scholarly publications on these subjects.
Dr. Abrahamian also testified that he left prior school districts specifically because he was not
offered biology or chemistry courses. When the District moved him to the
IS
program, he was
no longer able to teach either course because the IS program has no laboratory sciences.
The District correctly points out that Dr. Abrahamian is qualified under the Education
Code to teach in the IS program, but this assertion misses the point
of
why the reassignment is
adverse.22 In San Joaquin Delta CCD, supra, PERB Decision No. 261, the employee was, no
doubt, legally able to perform the duties
of
a groundskeeper but the assignment was adverse
because it ended his career as a police officer. In this case, although the reassignment was not
as drastic as in San Joaquin Delta CCD, Dr. Abrahamian was nevertheless precluded from
pursuing his chosen profession as a career biology and chemistry teacher. A reasonable person
under these circumstances would find the transfer to be adverse. 23
22
Dr. Abrahamian contends that Education Code section 44865 requires the District to
obtain his consent prior to assigning him to an independent studies program. This argument
was rejected in California Teacher Association
v.
Central Union High School District (1983)
141 Cal.App.3d 606, 616. The court instead found such assignments within a school district's
discretion under Education Code section 35035. (But see Mountain Empire Unified School
District (1998) PERB Decision No. 1298 (Mountain Empire USD), [holding that the
assignment
of
a teacher to a continuation school was an adverse action because he did not have
a specific credential for that program and opposed that assignment].) He also contends that the
assignment violates the CBA between the District and the union, but did not provide evidence
of which section was violated.
23 Dr. Abrahamian also asserts that the Adult Alternative Complex was unsafe and
because he was being monitored by video camera. Dr. Abrahamian has not met his burden of
proving these conditions existed at the IS Program.
18

c. 	Other Adverse Actions
None of the conference summaries or letters of reprimand were alleged to be adverse
actions in the PERB complaint and it is not appropriate to consider them as unalleged
violations at this point. In addition to meeting the above referenced criteria for unalleged
conduct, the new claim must also be timely. (County of Riverside, supra, PERB Decision
No. 2097-M.) Here, none of those documents were discussed in Dr. Abrahamian's underlying
unfair practice charge and were only referenced generally in the District's position statements.
No real details about the documents were raised until the September 2012 hearing, which is
more than six months from the date the conference summaries and the letters of reprimand
issued. Those claims are, accordingly, untimely. (See EERA, § 3541.S(a)(l); United Teachers
of Los Angeles (Thomas) (2010) PERB Decision No. 2150.)
Dr. Abrahamian also alleges that he was constructively discharged. PERB has
previously described "constructive discharge" as when "the burden imposed on the employee
must cause, and intend to cause, a change in his working conditions so difficult or unpleasant
as to force him to resign." The charging party must also show "that those burdens were
imposed because of the employee's [protected] activities." (Palo Verde Unified School
District (1988) PERB Decision No. 689.) However, PERB has declined to find a constructive
discharge where it was not established that the employment relationship was severed. (Yuba
Community College District (2007) PERB Decision No. 1936.) Here, there is no evidence in
the record that Dr. Abrahamian's employment was terminated either by his own actions or by
the District. Therefore, there is no constructive discharge.
4. 	Nexus
The fourth element of a prima facie case is whether there is a causal connection, or
nexus, between the adverse actions and the protected activity. The existence or absence of
nexus is usually established through circumstantial evidence after considering the record as a
19

whole. (San Bernardino City Unified School District (2012) PERB Decision No. 2278, citing
Moreland Elementary School District (1982) PERB Decision No. 227.)
a.
	Timing as Circumstantial Evidence
of
Nexus
The timing between the employer's adverse actions and the protected activity is
typically an important circumstantial factor to consider in establishing nexus.
(North Sacramento School District (1982) PERB Decision No. 264.) Accordingly, PERB has
found that an adverse action occurring within two months
of
protected activities support a
finding
of
nexus. (Mountain Empire USD, supra, PERB Decision No. 1298.) In contrast,
Los Angeles Unified School District (1998) PERB Decision No. 1300, PERB held that a time
lapse
of
five or six months between the protected activity and the adverse actions did not
suggest a causal connection
Temporal proximity, while demonstrative, is not a requirement
of
a prima facie case.
In other words, '"the closeness in time (or lack thereof) between the protected activity and the
adverse action goes to the strength
of
the inference
of
unlawful motive to be drawn and is not
determinative in itself."' (California Teachers Association, Solano Community College
Chapter, CTAINEA (Tsai) (2010) PERB Decision No. 2096, quoting Metropolitan Water
District
of
Southern California (2009) PERB Decision No. 2066-M.) However, in absence
of
close timing, greater evidence
of
the employer's unlawful motive is required. (See Oakdale
Union Elementary School District (1985) PERB Decision No. 548.)
The two adverse actions in this case are close in time to Dr. Abrahamian's unfair
practice charge activity. Alexandres placed him on administrative leave in February 2012,
roughly two months from when he first filed his charge. Dr. Abrahamian was transferred to
the IS Program in June 2012, around two weeks after the General Counsel's Office issued its
complaint in the matter and scheduled the case for an informal settlement conference. This
temporal proximity supports a finding of nexus.
20

The adverse actions were not, on the other hand, close in time to Dr. Abrahamian' s
reports about student cheating. According to Dr. Abrahamian, he most recently raised the
cheating issue with the District in June and August 2011, around 6 months from when he was
placed on administrative leave and 10 months from when he was transferred to the IS Program.
This time difference does not provide circumstantial evidence
of
nexus.
b.
	Other Circumstantial Evidence
of
Nexus
Nexus is not established through timing alone. (North Sacramento SD, supra, PERB
Decision No. 264.) Other circumstantial evidence is needed to demonstrate a causal
connection between the protected acts and the adverse actions.
Other circumstantial criteria for establishing nexus could include an employer's
inconsistent or contradictory conduct. (State
of
California (Department
of
Parks and
Recreation) (1983) PERB Decision No. 328-S.) In this case, there were multiple
inconsistencies in the manner the adverse actions were handled. For example, Alexandres
stated in her February 16, 2012 letter that Dr. Abrahamian was being placed on administrative
leave "due to a pending investigation." Yet, she made no mention
of
that investigation when
testifying at the hearing about the reasons she placed him on leave. This inconsistency is
evidence
of
nexus.
The District's conduct regarding the investigation itself, was also evidence
of
nexus. In
Oakland USD, supra, PERB Decision No. 1529, the Board found circumstantial evidence
of
nexus where the employer placed an individual on administrative leave, pending an
investigation, but never informed him
of
the outcome
of
that investigation. In this case,
Alexandres admitted that the only thing she did was "gather[] the information that we already
had, and it was all there." She never discussed the leave or the investigation with
Dr. Abrahamian until after he had already been transferred to the IS Program. Even then, she
21

never formally informed him that her investigation had concluded or even that his
administrative leave ended. These inconsistencies are further evidence
of
nexus.
In addition, there is evidence the District failed to follow its own personnel procedures.
An
employer's departure from existing procedures may be evidence
of
nexus. (Santa Clara
Unified School District (1979) PERB Decision No. 104.) Dr. Abrahamian explained that he
received multiple performance evaluations during his tenure at the District, but it is undisputed
that there is only one evaluation in his personnel file.24 In addition, Pimentel,
Dr. Abrahamian's direct supervisor, testified that he never saw the December 2, 2011 letter
of
reprimand, which he found unusual given that he was Dr. Abrahamian's direct supervisor.
Around that time, Pimentel felt Dr. Abrahamian was temporarily improving at least in the area
of
his instruction. These deficiencies are accordingly notable because they tend to conceal
what might have been favorable information about Dr. Abrahamian's job performance and his
ability to follow either Wilson's directives and/or the assistance plan.
For all these reasons, Dr. Abrahamian has established a prima facie case for retaliation
notwithstanding the fact that not all
of
the protected activity occurred close in time to the
adverse actions.
5. 	District's Burden
of
Proof
If
the charging party establishes all the elements
of
a prima facie case, the burden then
shifts to the respondent to prove by a preponderance
of
the evidence that it would have taken
the same course
of
action even
if
the charging party did not engage in any protected activity.
(Santa Ana Unified School District (2012) PERB Decision No. 2235, citing Novato USD,
supra, PERB Decision No. 210; Martori Brothers Distributors
v.
Agricultural Labor Relations
Board. (1981) 29 Cal.3d 721, 729-730.) In other words, the issue is whether the adverse action
24
That evaluation was issued in 2008, prior to his transfer to WSHS. Dr. Abrahamian
was rated as meeting or exceeding District expectations in all categories in that evaluation.
22

would have occurred "but for" the protected acts. (Ibid.) The focus
of
the "but for" analysis
"is not whether the employer had a lawful reason for the action but whether it took the action
for an unlawful reason." (Baker Valley Unified School District (2008) PERB Decision
No. 1993, citing McFarland Unified School Dist.
v.
PERB (1991) 228 Cal.App.3d 166, 169.)
In Fall River Joint Unified School District (1998) PERB Decision No. 1259 (Fall River
JUSD), the Board held that an employer was justified in removing an employee from a school
site where it had legitimate concerns over how that employee's conduct affected the integrity
of
its special education program. In Coast Community College District (2003) PERB Decision
No. 1560 (Coast CCD), the Board held that a transfer was warranted where "the record was
replete with examples"
of
the employee's inappropriate confrontations with his supervisor and
his refusal to comply with directives. (See also, Scotts Valley Union Elementary School
District (1994) PERB Decision No. 1052.)
In contrast, in Chula Vista Elementary School District (2011) PERB Decision No. 2221
( Chula Vista ESD), the employer asserted that adverse actions were justified because
of
the
charging party's lack
of
"interpersonal skills." The Board, however, held that explanation was
pretext, because the evidence showed that she worked well with others and there was no
evidence that the employer previously counseled or directed her to improve in that area. In
Jurupa Community Services District (2007) PERB Decision No. 1920-M (Jurupa CSD), the
Board held that the District's asserted justifications for taking adverse actions were pretextual
because they were either overblown, trivial, or based entirely on hearsay.
In this case, Wilson's concerns with Dr. Abrahamian's work performance were well-
documented over the course of the 2011-2012 school year. There is no dispute that
Dr. Abrahamian repeatedly demanded more paper for his instructional packets even after
Wilson ordered him to either use District-approved instructional materials or have students
take notes of the information in his packets. Dr. Abrahamian maintains that Wilson "did not
23

have the ability or intention" to understand the instructional value
of
his packets, but this case
is not about whose approach to education was better. In CSULB, supra, PERB Decision
No. 641-H, the Board held that an employer's adverse actions were justified as part
of
the
employer's effort to "conduct [its education] program in the way determined by [the
supervisors'] own judgments and preferences" and because
of
the employee's expressed
"resistance to accepting directions and criticism from the supervisors." In other words, even
if
Dr. Abrahamian's packets were useful education tools, his refusal to comply with Wilson's
directives was still insubordination which may constitute a legitimate non-retaliatory basis for
the adverse actions.
The record is equally clear that Dr. Abrahamian's disputes with Wilson began to spill
over into instructional time. Dr. Abrahamian admitted to making statements to his students
implying that he could not provide them with adequate instruction because
of
the lack
of
paper
and also suggesting that the District was trying to "eliminate" him. These actions continued
after Wilson and Alexandres expressly directed Dr. Abrahamian to not discuss those matters
with students during instructional time. This was around the time that Wilson began receiving
complaints about unproductive use
of
classroom time. Unlike in Chula Vista ESD, supra,
PERB Decision No. 2221, Dr. Abrahamian was issued two counseling summaries and two
letters
of
reprimand with specific directives for improving his behavior but Dr. Abrahamian
showed no sustained improvement.25 It was at this point that Alexandres felt it necessary to
25
Dr. Abrahamian repeatedly argues that the counseling summaries and the letters
ofreprimand were "concocted" or based on "bogus" information but he offered only insignificant
evidence supporting his conclusions. For example, Dr. Abrahamian points out that he and
Wilson discussed Dr. Abrahamian's hat during the September 6, 2011 conference, but that was
not addressed in the following conference summary. This omission is inconsequential in light
of the other more serious issues included in the document. Dr. Abrahamian also argues that it
is implausible that Wilson would already have concerns about his performance so early in the
2011-2012 year. However, the timing is not suspicious under the facts presented in this case,
given how soon Dr. Abrahamian demonstrated an unwillingness to comply with Wilson's
instructions.
24

remove Dr. Abrahamian from the classroom and place him in a different teaching environment.
Because of his demonstrated lack of classroom management skills, Alexandres felt that he
might be successful providing instruction to students one-on-one in the IS Program. As in
Fall River JUSD, supra, PERB Decision No. 1259, the District's legitimate concerns about
Dr. Abrahamian's classroom behavior provides a reasonable basis for the two adverse actions.
Unlike in Jurupa CSD, supra, PERB Decision No. 1920-M, evidence about these issues
came from student and parent complaints,26 Wilson and Pimentel's personal observations, and
from Dr. Abrahamian' s own testimony. For instance, Dr. Abrahamian and Pimentel testified
relatively consistently that Dr. Abrahamian became frustrated and stopped instruction during
Pimentel's February 15, 2011 classroom observation. When Pimentel directed him to
continue, Dr. Abrahamian admits to making an oblique reference to the District's effort to
eliminate his employment. Dr. Abrahamian also admitted making prior references to the paper
issue and the District's plan to remove him from the classroom.
Dr. Abrahamian argues that the adverse actions in this case were not justified because a
majority of his students at WSHS demonstrated average or above-average proficiency in
biology and chemistry standardized tests in the 2011-2012 school year. This argument is
unpersuasive for at least three reasons. First, the evidence about student performance is
incomplete. It is unclear from the record whether the subject matter of those tests were
covered during Dr. Abrahamian' s classes. Nor is it clear to what degree he, or his
replacement, were responsible for the test scores. In addition, contrary to Dr. Abrahamian's
assertion in his closing brief, there was no evidence of whether these scores indicated any
improvement in student performance. Second, there is no evidence in the record about student
16 Dr. Abrahamian asserts in his closing brief that 40 parents of students were pleased
with his performance as a teacher, but evidence of those parents' opinions was not produced
for the record. Even if it was, the record would show that different parents had conflicting
views of Dr. Abrahamian's teaching.
25

performance in earth sciences, another course taught by Dr. Abrahamian that year. Third, and
most significantly, even
if
Dr. Abrahamian was directly responsible for improving student
performance on test scores, it would not change the fact that he intentionally disobeyed several
of
Wilson's directives. In Coast CCD, supra, PERB Decision No. 1560, the Board recognized
that the charging party in that case was a "very capable instructor," but nevertheless found his
transfer was justified due to his inappropriate confrontations with his supervisor and others.
The same reasoning applies here. Dr. Abrahamian's performance as a teacher does not insulate
him from action by the District where it has other legitimate concerns about his behavior.
Based on a review
of
the record as a whole, it is concluded that the District would have
placed Dr. Abrahamian on administrative leave and transferred him notwithstanding this
protected activities. The District's concerns with Dr. Abrahamian's behavior persisted
throughout the 2011-2012 school year. It is true, as mentioned above, that there were some
inconsistencies in how the District handled the situation. But this case is not a referendum
of
the District's personnel practices. Rather, evidence about those practices is only relevant to the
extent that it provides insight into the District's underlying motives.27 In this case, any
discrepancies in how the District handled its concerns about Dr. Abrahamian do not
overshadow the legitimacy
of
the concerns themselves. The substantial record in this case
shows that the District had serious doubts about whether Dr. Abrahamian could function
effectively in the classroom and whether he was capable or willing to follow Wilson's
directives. It was those doubts, and not Dr. Abrahamian's unfair practice charge activity or his
reports about student cheating, that precipitated the adverse actions. The District has therefore
27
In Regents
of
the University
of
California (2012) PERB Decision No. 2302-H, the
Board recognized that the issue in a retaliation case is not whether the employer's actions were
justified or were taken for "good cause," but whether retaliation was the true motive for the
adverse actions. (Citing City
of
Santa Monica, supra, PERB Decision No. 2211-M.)
26

met its burden
of
proving that it would have taken the same adverse actions even without
Dr. Abrahamian's protected activities.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-5635-E,
Asad
Abrahamian
v.
Coachella Valley Unified School District, is hereby DISMISSED.
Right to Appeal
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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
27

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).)
28