Decision 2221E – Chula Vista Elementary School District * * * OVERRULED IN PART by Bellflower Unified School District (2017) PERB Order No. Ad-447

LA-CE-5289-E

Decision Date: November 23, 2011

Decision Type: PERB Decision

 * * * OVERRULED IN PART by Bellflower Unified School District (2017) PERB Order No. Ad-447 * * *

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Perc Vol: 36
Perc Index: 88

Decision Headnotes

200.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYEE? (SEE 502 AND 1309)
200.01000 – In General

Under EERA section 3543.5, subdivision (a), “employee” includes an applicant for employment or reemployment; subsequent to charging party’s reapplication to be a support provider in the Beginning Teacher Support and Assessment (BTSA) Induction Program and retirement, charging party remained an “employee” within protection of statute given status as an applicant for reemployment.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.03000 – Activities for Nonexclusive Representative – Protected Right

Where charging party has a long history of union activism including membership on the union’s board of directors, the absence of an identifiable single instance of protected activity is not an impediment to a discrimination/retaliation charge.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.02000 – Burden of Proof; Evidence

Unlawful motive may be proven either by direct or circumstantial evidence.

502.00000 – EMPLOYER DISCRIMINATION; PERSONS PROTECTED
502.01000 – In General

Under EERA section 3543.5, subdivision (a), “employee” includes an applicant for employment or reemployment; subsequent to charging party’s reapplication to be a support provider in the Beginning Teacher Support and Assessment (BTSA) Induction Program and retirement, charging party remained an “employee” within protection of statute given status as an applicant for reemployment.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.15000 – Other

Denial of reapplication to be a support provider in the Beginning Teacher Support and Assessment (BTSA) Induction Program, with its attendant loss of pay, constitutes an adverse action.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.02000 – Disparate Treatment

Where there were 14 re-applicants for support provider positions in the Beginning Teacher Support and Assessment (BTSA) Induction Program who were found not to satisfy the one-hour per week meeting requirement and 12 out of the 14 were selected for reinstatement but charging party was not, the disparate treatment amongst similarly situated re-applicants constituted circumstantial evidence of unlawful motive.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.03000 – Departure from Past Practices or Procedures

Although retired teacher status was an explicit qualification for the support provider positions in the Beginning Teacher Support and Assessment (BTSA) Induction Program pursuant to the BTSA guidelines, the school district removed this qualification in its vacancy notice, opening the hiring process to school district employees only, thereby disqualifying charging party from the selection process; this departure from past practice constituted circumstantial evidence of unlawful motive.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.04000 – Timing of Action

Where denial of charging party’s reapplication to be a support provider in the Beginning Teacher Support and Assessment (BTSA) Induction Program occurred immediately upon charging party’s retirement and loss of union membership, the close proximity in timing between the end of charging party’s long history of protected union activism and the adverse action constituted circumstantial evidence of unlawful motive.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications

Where charging party initially was given no explanation for the action taken, but then was told she did not meet three criteria, and finally was told she was disqualified based on one criteria only, these inconsistent reasons or shifting justifications constituted circumstantial evidence of unlawful motive; where employer provides charging party with a justification for the action taken, the employer cannot then claim that it was under no obligation to provide a justification and therefore the justification cannot be evaluated to determine the employer’s true motive.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

Once the prima facie case is established, the burden shifts to the employer to prove it would have taken the same action even in the absence of the protected activity; the question becomes whether the adverse action would not have occurred “but for” the protected activity; the “but for” test is an affirmative defense which the employer must establish by a preponderance of the evidence; when conducting the “but for” analysis, PERB weighs the employer’s justifications for the adverse action against evidence of the employer’s retaliatory motive to determine whether the employer’s justification was honestly invoked; where justification given by the employer for the adverse action was that charging party’s interpersonal skills were deficient, but there was no history of deficiencies, every performance evaluation reflected superior interpersonal skills and colleagues who interacted with charging party all testified that charging party’s interpersonal skills were beyond reproach, the employer failed to establish its affirmative defense.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.07000 – Offensive Personal Characteristics

Where justification given by the employer for the adverse action was that charging party’s interpersonal skills were deficient, but there was no history of deficiencies, every performance evaluation reflected superior interpersonal skills and colleagues who interacted with charging party all testified that charging party’s interpersonal skills were beyond reproach, the employer failed to establish its affirmative defense.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

A telephone message left on charging party’s answering machine and a document memorializing statements made by the same individual in a telephone conversation with charging party the next day were admissible; even as inadmissible hearsay, the statements can be used to corroborate other evidence of retaliation under PERB Regulation 32176 and, as admissions of a party, the statements were admissible as independent evidence of retaliation under Evidence Code section 1220.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Under PERB Regulation 32136, the Board has found good cause to excuse a late filing when a party makes a conscientious effort to timely file and the late filing was caused by circumstances beyond the party’s control, such as a mailing or clerical error; if the reason for the untimely filing is “reasonable and credible,” the Board evaluates whether the opposing party would suffer any prejudice as a result of the excused late filing; where attorney was one day off in calculating the last day to file the response by incorrectly applying the 5-day extension for service by mail under PERB Regulation 32130, subdivision (c), and the weekend extension under PERB Regulation 32130, subdivision (b), and there was no prejudice to the opposing party, the attorney was found to have made an honest mistake and therefore the late filing was excused and deemed timely filed.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.02000 – Reinstatement

Reinstatement is not appropriate where the number of positions filled in any given year is dependent on the number of participating/beginning teachers in the Beginning Teacher Support and Assessment (BTSA) Induction Program and selections for the current year had presumably already been made; in such circumstances, the appropriate remedy in lieu of reinstatement is back pay.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

Where charging party was denied a position for a one-year term renewable on a year-to-year basis, and the denial was found to be retaliatory, the appropriate remedy was back pay through the current term, rather than limiting the back pay award to one year, given fact that charging party had previously served for eight consecutive years and intended to serve well into her retirement years; although the remedy reflects, in part, the length of time the case was pending before PERB, where respondent invokes the Board’s processes by electing to go to hearing following issuance of a complaint and files exceptions to the proposed decision, the respondent runs the risk that exhaustion of the Board’s administrative procedures will increase its liability in the event its appeal is unsuccessful.