Decision 2683E – San Diego Unified School District

LA-CE-6095-E LA-CE-6207-E

Decision Date: November 20, 2019

Decision Type: PERB Decision

Description:  This decision is the third in a trilogy of Board decisions involving charges filed by Emma Yvonne Zink (Zink) against Respondent San Diego Unified School District (District).  The charges, contained in two separate complaints consolidated for hearing and decision, alleged that the District retaliated against Zink for her protected activities.

Disposition:  The Board affirmed the proposed decision’s dismissal of the retaliation claims contained in the consolidated complaints.  With respect to the second complaint, the Board reversed the ALJ’s conclusions that certain written directives were not adverse actions, but reversing the ALJ as to these findings did not affect the outcome of the case because the District proved that Zink’s protected conduct was not a “but for” cause of any adverse action.

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Decision Headnotes

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

In analyzing “mixed motive” case, Board affirmed ALJ’s finding that school district established its affirmative defense that it would have proposed to reassign teacher to another school and assigned her to a “do nothing” position whether or not she had participated in protected activities. There was sufficient evidence that the school district was at least partially motivated by unlawful animus to find that the teacher’s protected activity contributed to the school district’s actions. However, the evidence demonstrated that the “unprecedented nature and volume” of parent and student complaints about the teacher’s work performance was the predominant motivation for the transfer and assignment to the “do nothing” position, thereby leading the Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s adverse actions.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.13000 – Other

In analyzing “mixed motive” case, Board affirmed ALJ’s finding that school district established its affirmative defense that it would have proposed to reassign teacher to another school and assigned her to a “do nothing” position whether or not she had participated in protected activities. There was sufficient evidence that the school district was at least partially motivated by unlawful animus to find that the teacher’s protected activity contributed to the school district’s actions. However, the evidence demonstrated that the “unprecedented nature and volume” of parent and student complaints about the teacher’s work performance was the predominant motivation for the transfer and assignment to the “do nothing” position, thereby leading the Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s adverse actions.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities

The Board affirmed the ALJ’s finding that school teacher established a prima facie case that school district was at least partially motivated by retaliatory animus when it assigned her to report for a job each day that had no duties, but that school district proved its affirmative defense by showing that it would have taken the same actions even in the absence of protected activity. The Board agreed with the ALJ that requiring a teacher to report each day for a “do-nothing” assignment is an adverse action. The Board, however, reversed the ALJ’s conclusions that certain written directives were not adverse actions, finding them to be integrally related to the “do nothing” assignment. The written directives prohibited the teacher from offering to cover classes for other teachers, entering classrooms during instructional time, visiting with teachers during preparation time, and using the school’s instructional supplies or office equipment. The directives also required the teacher to attend professional development courses in which teacher shared lesson plans, even though teacher did not have any lesson plans to share because she had no students. A reasonable employee would see management’s directives as adverse, because they were part and parcel of the “do nothing” job assignment.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities

Board found context highly relevant in determining that a reasonable employee would find requiring a teacher to attend professional development courses in which teachers shared lesson plans constituted an adverse action where the teacher was assigned to a “do nothing” position with no students and consequently had no lesson plans to share. In another context, non-punitive directives may not constitute adverse action. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 25, quoting Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12.)

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.01000 – In General

In analyzing “mixed motive” case, Board affirmed ALJ’s finding that school district established its affirmative defense that it would have proposed to reassign teacher to another school and assigned her to a “do nothing” position whether or not she had participated in protected activities. There was sufficient evidence that the school district was at least partially motivated by unlawful animus to find that the teacher’s protected activity contributed to the school district’s actions. However, the evidence demonstrated that the “unprecedented nature and volume” of parent and student complaints about the teacher’s work performance was the predominant motivation for the transfer and assignment to the “do nothing” position, thereby leading the Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s adverse actions.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
505.13000 – Other

In analyzing “mixed motive” case, Board affirmed ALJ’s finding that school district established its affirmative defense that it would have proposed to reassign teacher to another school and assigned her to a “do nothing” position whether or not she had participated in protected activities. There was sufficient evidence that the school district was at least partially motivated by unlawful animus to find that the teacher’s protected activity contributed to the school district’s actions. However, the evidence demonstrated that the “unprecedented nature and volume” of parent and student complaints about the teacher’s work performance was the predominant motivation for the transfer and assignment to the “do nothing” position, thereby leading the Board to conclude that teacher’s protected conduct was not a but-for cause of the school district’s adverse actions.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities

The Board affirmed the ALJ’s finding that school teacher established a prima facie case that school district was at least partially motivated by retaliatory animus when it assigned her to report for a job each day that had no duties, but that school district proved its affirmative defense by showing that it would have taken the same actions even in the absence of protected activity. The Board agreed with the ALJ that requiring a teacher to report each day for a “do-nothing” assignment is an adverse action. The Board, however, reversed the ALJ’s conclusions that certain written directives were not adverse actions, finding them to be integrally related to the “do nothing” assignment. The written directives prohibited the teacher from offering to cover classes for other teachers, entering classrooms during instructional time, visiting with teachers during preparation time, and using the school’s instructional supplies or office equipment. The directives also required the teacher to attend professional development courses in which teacher shared lesson plans, even though teacher did not have any lesson plans to share because she had no students. A reasonable employee would see management’s directives as adverse, because they were part and parcel of the “do nothing” job assignment.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities

Board found context highly relevant in determining that a reasonable employee would find requiring a teacher to attend professional development courses in which teachers shared lesson plans constituted an adverse action where the teacher was assigned to a “do nothing” position with no students and consequently had no lesson plans to share. In another context, non-punitive directives may not constitute adverse action. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 25, quoting Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12.)