Kent School District, Decision 14143 (EDUC, 2025)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Khadijah Al-Shami, complainant.

Daman Hunter, Associate Superintendent, for the Kent School District.

On May 6, 2025, Khadijah Al-Shami (complainant) filed an unfair labor practice complaint against the Kent School District (employer). The complaint was reviewed under WAC 391-45-110.[1] The complaint included approximately ten attachments but no statement of facts. A deficiency notice issued on May 14, 2025, notified Al-Shami that a cause of action could not be found at that time. Al-Shami was given a period of 21 days in which to file and serve an amended complaint or face dismissal of the deficient allegations. On May 27, 2025, Al-Shami filed an amended complaint.

ISSUEs

The amended complaint alleges the following:

Contract violations

Employer discrimination in violation of RCW 41.56.140(1) [and if so, derivative interference in violation of RCW 41.56.140(1) within six months of the date the complaint was filed, by giving a lower evaluation in the mid-year evaluation in retaliation for exercising protected activity in filing a grievance on December 7, 2024.

Employer discrimination in violation of RCW 41.56.140(1) [and if so, derivative interference in violation of RCW 41.56.140(1) within six months of the date the complaint was filed, by violating the evaluation process as set forth in the collective bargaining agreement in retaliation for exercising protected activity in filing a grievance on December 7, 2024.

Employer discrimination in violation of RCW 41.56.140(1) [and if so, derivative interference in violation of RCW 41.56.140(1) within six months of the date the complaint was filed, by investigating the complainant in retaliation for exercising protected activity in filing a grievance on December 7, 2024.

Employer discrimination in violation of RCW 41.56.140(1) [and if so, derivative interference in violation of RCW 41.56.140(1) within six months of the date the complaint was filed, by interfering with their application for a principal position in retaliation for exercising protected activity in filing a grievance on December 7, 2024.

Employer discrimination in violation of RCW 41.56.140(1) [and if so, derivative interference in violation of RCW 41.56.140(1) within six months of the date the complaint was filed, by violating the evaluation process as set forth in the collective bargaining agreement in retaliation for exercising protected activity in filing a grievance on March 30, 2025.

Employer discrimination in violation of RCW 41.56.140(1) [and if so, derivative interference in violation of RCW 41.56.140(1) within six months of the date the complaint was filed, by investigating the complainant in retaliation for exercising protected activity in filing a grievance on March 30, 2025.

Employer discrimination in violation of RCW 41.56.140(1) [and if so, derivative interference in violation of RCW 41.56.140(1) within six months of the date the complaint was filed, by interfering with their application for a principal position in retaliation for exercising protected activity in filing a grievance on March 30, 2025.

The allegation in the amended complaint that the employer discriminated against Al-Shami by investigating him in retaliation for exercising protected activity in filing a grievance on March 30, 2025, states a cause of action under WAC 391-45-110(2) for further case proceedings before the Commission.

The remaining discrimination allegations and contract violation allegations do not state a cause of action and are dismissed.

Background

Khadijah Al-Shami is an assistant principal for the employer. On December 6, 2024, Al-Shami sent an email to the employer’s human resources director, Daman Hunter, to “reach out about an issue concerning his leadership practice as an indigenous person.” The employer responded. In that response, the employer provided its nondiscrimination policy and procedure for “review and awareness.” The employer stated that if Al-Shami wished to file a complaint under that policy, Al-Shami would need to file a written statement. On December 7, 2024, Al-Shami responded that they would like to file a complaint and submitted a written statement.

On March 28, 2025, Al-Shami received a mid-year evaluation from Principal Katharine Geiss. Al-Shami received a basic rating. Al-Shami alleges the evaluation was late, lacked timely observations, written evidence and an opportunity to respond. The complaint alleges that the evaluation violated provisions of the collective bargaining agreement and was retaliation for filing the December 7, 2024, complaint.

Al-Shami filed a grievance regarding the evaluation on March 30, 2025. The grievance alleged that the evaluation was retaliatory and procedurally defective in violation of the collective bargaining agreement. In that submission, Al-Shami stated that the complaint was filed “pursuant to the Kent Principals Association Collective Bargaining Agreement (2023–2025), Board Policy 5010: Nondiscrimination, and civil rights protections under RCW 42.41 and Title VII of the Civil Rights Act.” On May 6, 2025, Al-Shami submitted a step 2 grievance to human resources pursuant to the collective bargaining agreement.

Al-Shami applied for a principal position with the employer on May 5, 2025. Al-Shami interviewed for the position on May 20, 2025, but withdrew their candidacy on May 24, 2025. Al-Shami alleges that they withdrew their application “in protest and under coercive and retaliatory conditions.” Specifically, Al-Shami alleges that Nina Shoening and Kathy Emerick are “closely aligned with Principal Geiss, who was subject to Al-Shami’s grievance. Al-Shami alleges that they were subject to an investigation on or about May 22, 2025, regarding complaints that occurred following a conversation Al-Shami had with Schoening.

Al-Shami also alleges that their end-of-year evaluation was procedurally defective and violated the collective bargaining agreement. On May 6 and May 10, 2025, Al-Shami submitted an appeal to the superintendent regarding the employer’s response to Al-Shami’s December complaint.

Analysis

Applicable Legal Standards

Contract Violations

The Commission does not assert jurisdiction to remedy violations of collective bargaining agreements through the unfair labor practice provisions of the statute. City of Walla Walla, Decision 104 (PECB, 1976). Allegations that the employer and/or union violated a CBA are not matters that the Commission can address. Remedies for contract violations must be sought through the grievance and arbitration machinery within the contract, or through the courts. Thus, the portions of the complaints alleging violations of the CBA by the employer do not state causes of action with the Public Employment Relations Commission. Lake Washington School District, Decision 6312 (EDUC, 1998).

Discrimination for Protected Activity

It is an unfair labor practice for an employer to discriminate against employees for engaging in union activity. RCW 41.56.140(1). An employer unlawfully discriminates against an employee when it takes action in reprisal for the employee’s exercise of rights protected by chapter 41.56 RCW. University of Washington, Decision 11091-A (PSRA, 2012); Educational Service District 114, Decision 4361-A (PECB, 1994). The complainant maintains the burden of proof in discrimination cases. To prove discrimination, the complainant must first set forth a prima facie case establishing the following:

1.         The employee participated in an activity protected by the collective bargaining statute or communicated to the employer an intent to do so;

2.         The employer deprived the employee of some ascertainable right, benefit, or status; and

3.         A causal connection exists between the employee’s exercise of a protected activity and the employer’s action.

Ordinarily, an employee may use circumstantial evidence to establish the prima facie case because respondents do not typically announce a discriminatory motive for their actions. Clark County, Decision 9127-A (PECB, 2007). Circumstantial evidence consists of proof of facts or circumstances which according to common experience give rise to a reasonable inference of the truth of the fact sought to be proved. See Seattle Public Health Hospital (AFGE Local 1170), Decision 1911-C (PECB, 1984).

In response to a complainant’s prima facie case of discrimination, the respondent need only articulate its nondiscriminatory reasons for acting in such a manner. The respondent does not bear the burden of proof to establish those reasons. Port of Tacoma, Decision 4626-A (PECB, 1995). Instead, the burden remains on the complainant to prove either that the employer’s reasons were pretextual, or that union animus was a substantial motivating factor behind the employer’s actions. Port of Tacoma, Decision 4626-A.

Application of Legal Standards

Al-Shami’s amended complaint pins the discrimination allegations complaints to two instances of protected activity: the December 7, 2024, complaint, and the March 30, 2025, grievance. Al-Shami alleges both constitute were grievances and were protected activity by chapter 41.56 RCW. However, the December 7, 2024, complaint, which was submitted with Al-Shami’s original unfair labor practice complaint, does not state that it is a grievance filed pursuant to the collective bargaining agreement. Rather, Al-Shami states in the December 7 complaint that it was a complaint under the employer’s nondiscrimination policy. In contrast, the March 30, 2025, grievance clearly states that it was being filed as a grievance pursuant to the collective bargaining agreement. While PERC assumes all facts are true and provable at this stage, that does not require PERC to ignore conflicting information in supporting documents filed with an unfair labor practice complaint. Spokane County, Decision 6804 (PECB, 1999).

Al-Shami’s December 7, 2024, complaint under the nondiscrimination policy was not protected activity pursuant to a statute administered by PERC. Thus, any allegations in the amended complaint of retaliation for filing that December 7, 2024, complaint do not state a cause of action within PERC’s jurisdiction,

In contrast, the filing of the contractual grievance on March 30, 2025, is protected activity under chapter 41.56 RCW. However, not every instance of the alleged actions states a cause of action. Al-Shami alleges in the amended complaint that the employer violated the collective bargaining agreement, including doing so as retaliation for Al-Shami filing their March 30, 2025, contract grievance. PERC does not have jurisdiction to address contract violations. Thus, the portions of the complaints alleging violations of the CBA by the employer do not state causes of action with the Public Employment Relations Commission. Lake Washington School District, Decision 6312.

The allegations in the amended complaint that the employer discriminated against Al-Shami by interfering with Al-Shami’s application for a principal position as retaliation for filing a grievance likewise does not state a cause of action. Al-Shami withdrew their application but, other than alleging they were subject to an investigation, does not allege facts showing that the employer interfered with Al-Shami’s application in retaliation for filing the March 30, 2025, grievance. The allegation in the amended complaint regarding the investigation states a cause of action, but the remaining allegations do not.

Order

1.                  Assuming all of the facts alleged to be true and provable, the discrimination allegation of the amended complaint states a cause of action, summarized as follows:

Employer discrimination in violation of RCW 41.56.140(1) [and if so, derivative interference in violation of RCW 41.56.140(1) within six months of the date the complaint was filed, by investigating the complainant in retaliation for exercising protected activity in filing grievances on March 30, 2025.

This allegation will be the subject of further proceedings under chapter 391-45 WAC.

2.                  The respondent shall file and serve an answer to the allegation listed in paragraph 1 of this order within 21 days following the date of this order. The answer shall

(a)               specifically admit, deny, or explain each fact alleged in the amended complaint, except if the respondent states it is without knowledge of the fact, that statement will operate as a denial; and

(b)               assert any affirmative defenses that are claimed to exist in the matter.

The answer shall be filed and served in accordance with WAC 391-08-120. Except for good cause shown, if the respondent fails to file a timely answer or to file an answer that specifically denies or explains facts alleged in the amended complaint, the respondent will be deemed to have admitted and waived its right to a hearing on those facts. WAC 391‑45‑210.

3.                  The allegations of the amended complaint concerning discrimination for filing the December 7, 2024, complaint are DISMISSED for failure to state a cause of action.

4.                  The allegations of the amended complaint alleging discrimination by violating the collective bargaining agreement and interfering with the principal hiring process in retaliation for filing the March 30, 2025, grievance are DISMISSED for failure to state a cause of action.

5.                  The allegations of the complaint concerning violations of the collective bargaining agreement are DISMISSED for failure to state a cause of action.

ISSUED at Olympia, Washington, this  24th  day of June, 2025.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

MICHAEL P. SELLARS, Executive Director

Paragraph 3 of this order will be the final order of the agency on any defective allegations, unless a notice of appeal is filed with the Commission under WAC 391-45-350.