Decision 1993E – Baker Valley Unified School District

Education Code sections 44948.5 and 44949, which provide for an administrative hearing to determine whether a school district employer had cause to nonrenew a certificated employee, do not supersede EERA because there is no conflict between the two statutes. PERB’s inquiry in a discrimination/retaliation case is not whether the employer had cause to take adverse action against the employee, but whether the employer took the adverse action because of the employee’s engagement in protected activity. In other words, the question is not whether the employer had a lawful reason for the adverse action but whether it took the adverse action for an unlawful reason.

Employer’s failure to give written notice of termination/nonrenewal when it verbally sought resignation of two teachers in lieu of involuntary separation did not establish a departure from past practice or procedure. Employer routinely offered teachers the option to resign without providing a written notice of nonrenewal and therefore did not single out the two teachers for different treatment because of their protected activity.

Employer’s solicitation of union president’s resignation in lieu of termination just as negotiations for new collective bargaining agreement were beginning supported an inference of unlawful motive. Timing of employer’s decision to nonrenew teacher who had served on union’s bargaining team and as its grievance chair supported an inference of unlawful motive. Decision to nonrenew was made just weeks after PERB certified impasse between union and employer and two months after teacher filed union’s first grievances during current superintendent’s tenure.

An employer’s vague or ambiguous reason(s) for adverse action support an inference of unlawful motivation. To be “vague or ambiguous,” reason must be essentially meaningless to employee under the circumstances. Employer’s statement that it would terminate teacher for classroom management problems was not vague or ambiguous because teacher had a documented history of such problems. Employer’s statement that teacher was being nonrenewed because of classroom “inconsistencies” was vague or ambiguous because employer had never discussed such problems with teacher prior to nonrenewal.

Nexus established by timing of employer’s decision to nonrenew teacher and giving of vague or ambiguous reasons for nonrenewal. Employer did not depart from past practices or procedures by offering teacher resignation in lieu of nonrenewal without providing written notice of nonrenewal. District superintendent’s alleged refusal to discuss employment concerns of two bargaining unit members with union president did not establish union animus.

Employer failed to prove it would have nonrenewed teacher absent his protected activity because teacher’s personnel file contained no documentation of performance problems and the District superintendent’s testimony that he had spoken with the teacher about performance problems was not credible.

Employer failed to prove it would have nonrenewed teacher absent his protected activity because teacher’s personnel file contained no documentation of performance problems and the District superintendent’s testimony that he had spoken with the teacher about performance problems was not credible.