Decision 2675E – Lake Elsinore Unified School District

Under Educational Employment Relations Act section 3541.5, subdivision (b), the Board “shall not have the authority to enforce agreements between the parties, and shall not issue a complaint on any charge based on alleged violation of any agreement that would not also constitute an unfair practice under this chapter.” Because the Board had no power to enforce a disputed settlement agreement, it could not act on charging party’s “Motion to Review Settlement Agreement Due to EERA Violations and [to] Compel the [Respondent] to Lawful [sic] Comply with the Terms and Conditions of the Agreement.” (p. 3, fn. 3.)

In finding that charging party engaged in protected activity by volunteering to participate in the
Peer Assistance and Review program, the attached proposed decision relied on Jurupa Unified School District (2012) PERB Decision No. 2283. In that case, a teacher engaged in protected activity by filing complaints under the collective bargaining agreement seeking to enforce the agreement’s evaluation and nondiscrimination provisions. (Id. at p. 16.) Here, charging party was not attempting to enforce the collective bargaining agreement but merely exercising a right provided to her under the agreement. Thus, Oakdale Union Elementary School District (1998) PERB Decision No. 1246, in which an employee engaged in protected activity by exercising her right under the agreement to report workplace safety issues, provides more apt support for the proposed decision’s finding. (p. 10, fn. 7.)

To establish a prima facie case that an employer has discriminated or retaliated against an employee in violation of EERA section 3543.5, subdivision (a), the charging party must show that: (1) the employee exercised rights under EERA; (2) the employer had knowledge of the employee’s exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the adverse action because of the exercise of those rights. (p. 7.)

PERB uses an objective test to decide whether an employer’s action is adverse to an employee.
The question is “whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment.” [Citation.] Employer’s denial of employee’s request to be placed on a five-year evaluation cycle was not objectively adverse because no reasonable teacher would infer that such a decision reflected some deficiency in employee’s qualities as a teacher. Specifically, it was undisputed that employer never approved such requests unless and until he had the opportunity to evaluate the employee at least once. Since employer had no such opportunity with the employee, his decision was consistent with his practice. In light of the record evidence, employee’s request amounted to one for special treatment, i.e., employer would have to suspend his normal practice in order to place
her on a five-year evaluation cycle. Under these circumstances, the employer’s decision not to
create an exception but instead to follow its existing practice did not amount to an adverse
action. (pp. 8-9.)

School administrators’ five-minute informal observation of teacher’s classroom during the first week of school was not an adverse action. Despite teacher’s assertion that administrators had never before observed his classroom during the first week of school, there was ample evidence in the record that such informal observations were routine and commonplace. Such visits were also expressly allowed under the collective bargaining agreement evaluation article, whether or not an employee was due for formal evaluation. There were no facts demonstrating any impact by the informal observation, let alone a negative one, on teacher’s employment interests. (Adopting proposed decision at p. 44.)

A heated exchange during a non-disciplinary meeting without any further impact on employment conditions does not amount to an adverse action. (Adopting proposed decision at p. 45.)

Requiring a consecutive year evaluation of a permanent employee who had previously been rated as meeting required standards signals a performance deficiency and is therefore an adverse action. (Adopting proposed decision at p. 49.)

Administrator’s admission that he did not hold a pre-observation conference with teacher as required by the collective bargaining agreement and that he gave her an unsatisfactory mark on her evaluation without a second observation, which may have been contrary to the collective bargaining agreement, were departures from established procedures that may have indicated unlawful motivation. (Adopting proposed decision at pp. 52-53.)

Once a charging party has established a prima facie case of retaliation by a preponderance of the evidence, the burden shifts to the respondent to prove: (1) that it had an alternative nondiscriminatory reason for the challenged action; and (2) that it acted because of this alternative non-discriminatory reason and not because of the employee’s protected activity. Simply presenting a legitimate reason for acting is not enough to meet the burden. The respondent “must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” [Citation.] Where there is evidence that the respondent’s adverse action was motivated by both lawful and unlawful reasons, “the question becomes whether the [adverse action] would not have occurred ‘but for’ the protected activity.” [Citation.] The “but for” test is “an affirmative defense which the respondent must establish by a preponderance of the evidence.” Here, the evidence showed that the employer acted because of performance concerns rather than to punish protected activity. Because the weight of the evidence supported the employer’s stated reasons for its action, there was no evidence that those reasons were a pretext for retaliation. (Adopting proposed decision at pp. 53-54, 57.)

Even if employer’s decision not to place employee on a five-year evaluation cycle could be considered an objectively adverse action, employer established that it would have denied employee’s request to be placed on a five-year evaluation cycle regardless of her protected activities. Indeed, the same evidence of consistent practice that disproved the alleged adverse nature of the decision proves that it was not taken because of charging party’s efforts to vindicate her rights or those of her colleagues. Employer did not treat employee any differently than he treated other bargaining unit members. While employee may have believed she was denied a five-year evaluation cycle because of her protected conduct, the record establishes that such conduct had nothing to do with the decision. (p. 9.)

Employer established its affirmative defense that it would have scheduled employee for consecutive evaluations even in the absence of protected activity, based solely on concerns relating to employee’s performance. The ALJ correctly weighed the employer’s evidence in support of its affirmative defense against the evidence supporting charging party’s prima facie case and concluded that the employer would have followed the same course of action even absent any protected activity. (p. 10.)

In light of the concerns raised by the allegations in charging party’s motion that the employer breached the parties’ settlement agreement and that some of the terms of the agreement violated charging party’s rights under the Educational Employment Relations Act, the Board denied charging party’s request to withdraw the charge in this case. (p. 3, fn. 3.)

After the close of the record, one of the charging parties attempted to introduce new evidence. The Board found that the ALJ correctly rejected the charging party’s proffered evidence since she did not file a motion to reopen the record. On exceptions, charging parties again referred to the rejected exhibits without following the proper procedure for making them part of the evidentiary record and thus the Board, like the ALJ, declined to admit or rely upon them. (p. 9, fn. 6.)