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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6254
Experience:  Significant experience in all areas of employment law.
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I work in a California School District as an Instructional

Resolved Question:

I work in a California School District as an Instructional Assistant.
This year I was assigned to work in a 3rd grade class.

We have a parent volunteer who comes in once a week.

Her odor is unbareable and nauseating. It probably is her culture.

The BO smell is so pungent. Even opening the door doesn't help. I try to ignore this parent and stay away from her. The teacher perceives and told me I was rude to her and that I give her funny looks She said that is not okay.

Now, mind you, the teacher lectures at the front of the classroom and is not as close to this odor as I am at the back table near this parent who shares the table.

The teacher I work for doesn't want to hurt her feelings; says she as a parent could go after us for my reaction.

As a paid school employee why do the students and staff have to put up with this type of issue because the teacher feels we need to be kind.

There is no arguing with this teacher. She is very devoted to her faith and believes in kindness all the way around. That is good; sometimes this is not acceptable either.

Now, I didn't talk to the principal about it. It has been my experience that as an IA
the teacher is always right. So why rock the boat.

What is your suggestion and what laws are there about this?

I would like some factual information in case the discussion about this issue arises.

I appreciate you assistance.

S. Schafer
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. Are you a permanent employee, probationary, or temp? Is the smell so foul that you are unable to complete your work?
Customer: replied 2 years ago.

I am a permanent employee working 6 hours a day. I have been grandfathered back in 1999; fully benefited when the contract changed for the newhired IA's back in 1998. They are not fully benefited but on a prorated contract.

 

The question here is whether or not the colunteer parent has more rights than the employee? The teacher is adamant not to be rude to any parent no matter what.

 

The teacher I work for is really a good teacher. She is to nice of a person. Somehow

she feels she can openly say what she thinks about my behavior to me.

To me that is rude too. This a a perceptual conclusion on her part that may not be true to another person's perception. She is too much of a good samaratan that at times I don't feel it is justified.

 

I do not feel I have been rude to this parent just because I stay away as much as possible when this parent volunteers. The teacher says I make rude facial jestures.

If I do that is just my personality and I do not realize do it on purpose. Who is the teacher to tell me that I am rude and what facial remarks to make? Who is the teacher to accuse me?

 

So, my questions is whether this parent has more rights as an employee just because

she volunteers. Also, is it legal to ask her not to volunteer? To tell her why?

 

I just want to know where I stand before I say anything further to the teacher, and if it arises to the principal.

 

 

I did not go to my union because my union is not very strong and focuses on

more important issues.

 

I appreciate your help in this matter. I will be awaiting your response.

 

Respectfully Yours,

 

 

Silvana Schafer

XXXXX@XXXXXX.XXX

 

Expert:  Patrick, Esq. replied 2 years ago.
I see. I'm sorry to be the one to tell you, but you likely don't have any substantive right to be rude or express annoyance at the volunteer parent in this situation. It's not so much a question of whose rights are superior as it is that you have a requirement to carry out your duties in a professional manner, and a duty not to act insubordinate to your superiors.

In regard to your status as a permanent classified employee, the Education Code would permit your discipline or dismissal for "discourteous treatment of the public, parents or students," as well as for insubordination and disobedience of a superior. If you had been told to be courteous to this particular parent and you failed to do so, you would be in violation of all three of the above requirements and therefore may be subject to discipline or dismissal.

I understand that you may be disappointed by the answer I've given you, as it's not particularly favorable to your situation.  Had I been able to provide a more favorable answer, it would have been my pleasure to do so.

If my answer has been helpful to you, please click on the GREEN ACCEPT button directly above. I will not get credit for assisting you or receive payment for my work unless you do this. Your question will not close after you click "accept," and you will still be able to ask follow-up questions if necessary.
 
The only facts I know about your situation are the ones that you tell me, so please try to be specific and bear in mind that, occasionally, miscommunications will occur. I will do everything I can to clarify my answer if I have misunderstood your question. Also bear in mind that the law does not always read how we think it should. I ask that you be understanding if an opinion I have provided is not consistent with what you wanted to hear.
 
Finally, the information that I have provided is not legal advice. I am not acting as your attorney and my answer does not establish an attorney-client relationship between us. I encourage you to consult with a local attorney in regard to legal matters.
Customer: replied 2 years ago.

Sir,

I understand where you are coming from. However, whether I was rude or not is one person's perception. The answer you have given doesn't really answer what I am trying to find out. So, I will try to discuss it further so I don't confuse you.

 

First, I want to let you know that I will try my hardest in my future non-verbal daily communications not to seem rude to anyone. I never knew I came across rude

as this teacher seems to think.

 

It was a good thing to let me know about being rude on the job and the consequences.

 

I am not worried about my employment. In the 15 years I have been with this district, I have been an exemplary employee with a clean file. As a matter of fact I have so much documentation regarding a lot of harrassment issues that I have never pursued. So, I am not worried about my job.

 

Concerned, I asked a volunteer student that comes in daily from the High School if I was rude to this parent. She informed she did not perceive me as rude.

 

I noticed that the volunteer student was even distrubed by the odor; she moved away from this parent several times.

 

I do not feel I was rude. I was trying to make my work environment better for me and the student I work with. We were at the same table in the back of the classroom.

 

Today, I went to apologize to the teacher. I have to be honest. It wasn't a sincere apology because I feel I was not rude. I just want to work without feelings of conflict.

 

The teacher said, I offended her, the teacher. If she had a camera she would have shown me the facial non-verbal expressions. She stated, that the students haven't complained, so there is no issue.

 

I let her know that she is at the front of the class, she doesn't get the same odor

strength we do at the back of the classroom. It is absolutely nauseating and over pungent.

 

She was lecturing. She accused me of purposely opening the door when

the lawn mower outside was running. The lawn mower was not running when she was lecturing. It started about 20 minutes after I had opened the door. I never heard the lawn mower until then.

 

Is it fair for the student's and the employee's to have to endure this smell just because

the person is a parent volunteer? Just because the teacher doesn't want to offend her?

The parent is of a different culturem but so am I.

 

Anyway, I stopped any discussion with the teacher. I just said it won't happen again.

 

 

Just for information she is not my boss. The principal is. I just work in her class

with a one on one student who has learning disabilities. I did not go to the principal.

My perceptoin of the principal is that he basically backs up the teacher's no matter what. As an instructionaI, to bring an issue to his attention, is not a good idea.

 

All it would take is one parent complaining about her child enduring this smell

and then there would be a conflict between 2 parents.

 

So what I am really asking is the following:

 

Why do I have to endure this smell? I am a human being too.

 

Why do the student's have to endure this smell?

 

Is there a law that a volunteer can not be told not volunteer because they really aren't needed. There are so many parent's that come into the classroom that she really isn't needed. But this teacher likes the more the better.

 

This teacher, knowing, the situation, has encouraged this parent to volunteer more hours.

 

I just don't get it?

 

Most student's would be scared to say anything unless they brought it to their parent's attention. Especially, 3rd graders who tend to not voice certain issues.

 

 

I lknow I am coming across very frustratred. I have nothing against this parent. I think it is great what she is doing in her son't class. But sometimes, there are exceptions to the rule.

 

I am trying how to resolve this on my part. I even suggested to the teacher that I go to the library with the student I assist. She said we'll see. This student is on a modified

curriculum and can't follow the class teachings. She is at a different level and we take

it slow with her because of her extreme learning disability.

 

 

I am trying to find out if I have any rights in this matter as a paid employee.

Isn't the employee environment important? What about the student's exposure ?

 

Please reply to my situation. I don't know if I have made it clearer or more confusing.

I apologize if that is the case.

 

Most Respectfully,

 

Silvana Schafer

XXXXX@XXXXXX.XXX

 

 

 

Expert:  Patrick, Esq. replied 2 years ago.
So long as the smell is not actually harmful to your health, there is no law that would protect you in this circumstance. If the smell was harmful to your health, OSHA laws would apply and possibly other laws concerning worker safety. Body odor, however, would almost certainly not qualify.

I wish that I could tell you the law was more favorable on this point, but I trust that you will appreciate the time I have taken to answer your question and click "accept" so that I am paid for my time. Thank you kindly.
Patrick, Esq., Lawyer
Satisfied Customers: 6254
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 4 other California Employment Law Specialists are ready to help you

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