Empire Union School District (PERB 1650E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

EMPIRE TEACHERS ASSOCIATION,
Charging Party, Case No. SA-CE-2023-E

Vv. PERB Decision No. 1650

EMPIRE UNION SCHOOL DISTRICT, June 29, 2004

Respondent.

Appearances: California Teachers Association, CTA/NEA, by Priscilla Winslow, Attorney,
for the Empire Teachers Association; Littler Mendelson by Matthew J. Ruggles, Attorney, for
Empire Union School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Empire Union School District (District) to a proposed
decision (attached) of the administrative law judge (ALJ). The ALJ’s proposed decision found
that the District violated the Educational Employment Relations Act (EERA)’ by retaliating
against three teachers for their protected activities, and by this conduct, also violated the rights
of the Empire Teachers Association (Association).

The Board has reviewed the entire record in this matter, including the proposed
decision, the District’s exceptions and the Association’s response. The Board finds the ALJ’s

proposed decision to be free of prejudicial error and adopts it as the decision of the Board

itself, subject to the discussion below.

'RERA is codified at Government Code section 3540, et seq. Unless otherwise noted,
all statutory references are to the Government Code.

DISCUSSION
Did the District, when it issued a negative evaluation to JoAnne DeMattos (DeMattos),
discriminate against her because
of
her protected activities, thereby violating EERA
section 3543.S(a)?
It
is undisputed that DeMattos signed her evaluation on May 9, 2000. Thus, DeMattos
knew as
of
that date that she had received a low mark in the category
of
professional relations.
Despite this knowledge, this unfair practice charge was not filed until February 27, 2001, more
than eight (8) months later.
The statute
of
limitations under EERA is six (6) months. (EERA sec. 3541.5(a)(l).)
It
is well-settled that the limitations period begins to run once a charging party knows or should
have known
of
the conduct underlying the charge. (Fairfield-Suisun Unified School District
(1985) PERB Decision No. 547.) In the proposed decision, the ALJ found the allegation
involving DeMattos' evaluation to be timely because it was not until November 2000, that
DeMattos discovered facts leading her to believe that her low mark was due to unlawful
retaliation for her protected activities. In reaching his holding, the ALJ acknowledged the long
line
of
cases which have held that a charging party's belated discovery
of
the legal significance
of
the underlying conduct does not excuse an otherwise untimely filing. 	(See UCLA Labor
Relations Division (1989) PERB Decision No. 735-H (UCLA); California State Employees'
Association (Darzins) (1985) PERB Decision No. 546-S (Darzins).) However, the ALJ
believed that in Peralta Community College District (1998) PERB Decision No. 1281 (Peralta),
the Board had reversed UCLA and Darzins, and their progeny.
2

The Board has reviewed the decision in Peralta and agrees that it can be read to conflict
with the rule set forth in UCLA and Darzins. Specifically, that Peralta can be read to hold that
it is the discovery
of
the conduct, not its legal significance, that triggers the limitations period.
The Board does not believe, however, that the Board in Peralta intended such an interpretation.
Notably, there is no mention in the Peralta decision about UCLA or Darzins. Had the previous
Board intended to overrule those cases, it surely would have noted the significant departure
from precedent. Further, neither the Peralta Board or any Board thereafter has ever interpreted
that case to have overruled UCLA and Darzins. To the contrary, even after Peralta, the Board
has repeatedly cited to UCLA and Darzins with approval. 	(See, e.g., Oakland Unified
Education Association, CTA (Rossmann, et al.) (1999) PERB Decision No. 1307; Teachers
Association
of
Long Beach (Filinuk, et al.) (1999) PERB Decision No. 1312; State
of
California (Department
of
Corrections) (1999) PERB Decision No. 1366-S; Trustees
of
the
California State University (1999) PERB Decision No. 1367-H; United Teachers
of
Los Angeles (Hopper) (2001) PERB Decision No. 1441; State
of
California (2001) PERB
Decision No. 1459-S.) Accordingly, the Board finds that Peralta did not reverse the rule set
forth in UCLA and Darzins regarding the triggering
of
the limitations period. To the extent
that Peralta can be read to conflict with UCLA and Darzins, and their progeny, it is overruled.
With respect to the present case, it is clear that DeMattos knew
of
the conduct, the low
mark on her evaluation, giving rise to the unfair practice more than six months before the
charge was filed. 	What DeMattos discovered in November 2000 was evidence that her low
mark may have been motivated by her protected activities. Under UCLA and Darzins, such a
discovery does not re-start the limitations period. Accordingly, the allegation
of
discrimination
arising from DeMattos' May 2000, evaluation must be dismissed as untimely.
3

Did the District, by its November 17, 2001, memorandum to DeMattos, interfere with
employee rights guaranteed by EERA in violation
of
Section 3543.5(a)?
EERA section 3543.5(a) prohibits both discrimination and interference with protected
activities. With respect to DeMattos, the complaint charged the District with violating EERA
section 3543.5(a) under both a theory
of
discrimination and interference. Because the
proposed decision found that the District had discriminated against DeMattos, the ALJ did not
address the alternative theory
of
interference. As the Board has overturned the ALJ's finding
of
discrimination, the Board must now address whether the District interfered with DeMattos'
protected rights.
Here, DeMattos inquired
of
Melva Rush (Rush), the principal
of
Teel Middle School, as
to how she could improve her rating in the area
of
professional relations on her upcoming
annual evaluation. On November 17, 2001, Rush responded as follows:
By not following established procedures, problems are difficult to
address in a timely and efficient manner. Issues that you carry to
Price Club and to ETA meetings, for example, before they have
gone through channels at the site, waste the time
of
people
involved, and can result in misunderstandings, and frustration.
(Emphasis added.)
By this letter and her other actions2, Rush made it clear to DeMattos that DeMattos'
performance ratings would be contingent
of
her not bringing issues directly to the Association.
Such a policy interfered with DeMattos' protected right to bring her workplace grievances to
the Association. As a result, the Board finds that the District violated EERA section 3543.5(a)
by its actions discussed above.
2Rush's other actions demonstrating her anti-union animus are thoroughly set forth in
the proposed decision.
4

ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
case, it is found that the Empire Union School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.S(a) and (b), by
discriminating for and/or interfering with the exercise
of
protected activities by JoAnne
DeMattos, Kim Davis and Marj Whinery and by denying the Empire Teachers Association
(Association) the right to properly represent its members in their labor relations with the
District.
Pursuant to EERA section 3541.S(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Discriminating against employees for the exercise
of
their protected rights
and/or interfering with those protected rights.
2. Denying to the Association rights guaranteed to it by EERA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Assign Kim Davis, at her request, to a sixth-grade honors class as soon as
practicable, but no later than the start
of
the 2004-2005 school year.
2. Discard the letter ofreprimand issued to Marj Whinery on November 22,
2000, and delete all references to it in all District records.
3. Within ten
(1
O)
workdays following the date this decision is no longer
subject to appeal, post at all locations where notices are customarily posted, copies of the
notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
the District, indicating that the District will comply with the terms of this Order. Such posting
5

shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure the Notice is not reduced in size, altered, defaced or covered with any other
material.
4.	
Written notification
of
the actions taken to comply with this Order shall be
made to the Sacramento Regional Director
of
the Public Employment Relations Board in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on the Association.
Chairman Duncan and Member Whitehead joined in this Decision.
6

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. SA-CE-2023-E, Empire Teachers
Association
v.
Empire Union School District, in which all parties had the right to participate, it
has been found that the Empire Union School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.S(a) and (b).
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A.	
CEASE AND DESIST FROM:
1.	
Discriminating against employees for the exercise
of
their protected
rights and/or interfering with those protected rights.
2.	
Denying to the Empire Teachers Association rights guaranteed to it by
EERA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Assign Kim Davis, at her request, to a sixth-grade honors class as soon
as practicable, but no later than the start
of
the 2004-2005 school year.
2. 	Discard the letter
of
reprimand issued to Marj Whinery on November 22,
2000, and delete all references to it in all District records.
Dated: 	EMPIRE UNION SCHOOL DISTRICT	
---------
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
EMPIRE TEACHERS ASSOCIATION,
Charging Party,
V.
EMPIRE UNION SCHOOL DISTRICT,
Res ondent.
UNFAIR PRACTICE
CASE NO. SA-CE-2023-E
PROPOSED DECISION
(2/13/03)
Appearances: California Teachers Association, CTA/NEA, by Priscilla Winslow, Attorney, for
Empire Teachers Association; Littler Mendelson, by Matthew J. Ruggles, Attorney, for
Empire Union School District.
Before Allen R. Link, Administrative Law Judge.
PROCEDURAL HISTORY
On February 27, 2001, the Empire Teachers Association (ETA) filed an unfair practice
charge with the Public Employment Relations Board (PERB) against the Empire Union School
District (District). The charge alleged violations of the Educational Employment Relations Act
(BERA or Act). 1 On October 30, 2001, the General Counsel of PERB, after an investigation of
the charge, issued a complaint alleging violations of subdivisions ( a) and (b) of section
3543.5.2
1 All section references, unless otherwise noted, are to the Government Code.
BERA is codified at section 3540 et seq.
2 Subdivisions (a) and (b) of section 3543.5, in pertinent part, state:
It shall be unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees,
to discriminate or threaten to discriminate against employees,
or otherwise to interfere with, restrain, or coerce employees
because of their exercise of rights guaranteed by this chapter. ...

On November 19, 2001, the District filed its answer to the complaint. The answer
denied all material allegations and propounded various affirmative defenses. 	On
November 28, 2001, an informal conference was held in an unsuccessful attempt to arrive at a
mutually agreeable solution. On May 20, 21, 22, 23, 24, and July 8, 2002, a formal hearing
was held before the undersigned. With the filing of the briefs by each side, the matter was
submitted for a decision on November 26, 2002.
INTRODUCTION
Three ET A activists, after exercising protected activities, were given negative
personnel documentation by Teel Middle School (Teel) Principal Melva Rush (Rush).
Charging party alleges such documentation was a direct result of their protected activities. The
respondent insists that, in each case, there were legitimate non-union related reasons for Rush's
acts, and that the employees' protected activities had nothing to do with the documentation
they received.
FINDINGS OF FACT
Jurisdiction
The parties stipulated, and it is therefore found, that the charging party is an employee
organization and an exclusive representative and the respondent is a public school employer,
within the meaning of the Act.
Background
The District encompasses K-8 students and has six sites in and around the city of
Empire, just south of Modesto. Teel is the only middle school. It has a population of 1,200 to
1,300 students and employs approximately 56 teachers.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
2

The ET A represents all District certificated employees, and during the subject time
period, the parties were operating under the auspices of a collective bargaining agreement
(CBA) that expired on June 30, 2001.
Rush's First Three Years
Rush became the principal of Teel at the start of the 1994-95 school year, after having
previously worked with Superintendent Robert W. Price, Ed.D. (Price),3 in another school
district. Almost immediately she irritated the teaching staff with, what they believed, was an
autocratic, uncommunicative, management style. Various employees, according to Dave
Loucks (Loucks), ET A's co-president, referred to her style as "panic management," and a
pattern of "trying to get things done as things were due or just shortly thereafter." The teachers
turned to ET A for assistance in acquiring some input into decisions that were affecting them on
a daily basis. After a number of failed attempts at improving communications, they asked the
ETA leadership to permit them to take a vote of no confidence during her first year.
Loucks, who taught for twenty-years at Teel before transferring to another District
school during the 1999-2000 school year, discouraged the no-confidence vote. He urged the
teachers to give Rush "time to get organized, get her feet wet and learn the ropes in our
district." He did tell Rush that, in the teachers' opinion, she communicated poorly and seemed
disorganized. Louck's comments did not seem to have any effect on Rush's management
style.
Sometime during her second year, ETA asked Price to conduct a survey of teachers
about Rush's capabilities as a principal. After the District rejected this request, ETA
conducted its own survey. 	Loucks reported that the survey showed that there was a widespread
3 Price, in addition to his duties as the District's superintendent, teaches various courses
to prospective educational administrators at California State University, Stanislaus.
3

concern over Rush's management style and communication. The results were shared with both
Price and Rush.
Price contends that the District itself conducts a bi-annual "effective schools profile"
survey for each of its schools. There are individual surveys for certificated employees,
classified employees, students, and parents. Teel's population was surveyed during the
1995-96, 1997-98, and 1999-2000 school years. Teel's positive scores increased between
1995-96 and 1997-98. However, they fell dramatically in 1999-2000, in six of eight
categories, to levels that were appreciably lower than those in 1995-96.
During Rush's third year, 1997-98, complaints continued about her poor
communications skills, lack of collaboration with teachers, and her unilateral changes in
academic programs. These changes directly affected the teachers' abilities to teach and they
were upset over having no input into them.
California School Leadership Academy
Price, Rush, Loucks, and four ETA Teel teacher representatives met with Price during
the 1996-97 school year. ET A described the reasons it believed Rush was a poor
communicator. Both ET A and Price agreed that a third party could be helpful in addressing
the problems at Teel. The parties jointly chose the California School Leadership Academy
(CSLA)4 to facilitate progress in two areas, i.e., staff communications and student academic
progress. This CSLA system consisted of creating a team made up of Rush, a number of Teel
department chairs, Loucks, Monica Corriea (Corriea), and some classified employee
representatives. According to Price, the initial goal at Teel, as set by the CSLA 	was to
provide a coach to help Rush strategize new methods of communication, and provide input and
4 According to Price, CSLA's mission, in general, is to provide professional
development in the area of leadership at school sites and districts.
4

feedback on how to make the teacher meetings more effective. However, Price stated in an
April 1, 1999, letter to the Teel CSLA team that neither he, nor the CSLA facilitator, recall any
agreement that improving the administrative leadership was an initial CSLA objective. In his
testimony he listed CSLA's objectives as (1) organizational management issues and (2) student
educational performance. He also stated that the project eventually emphasized instructional
objectives.
The team was originally scheduled to operate for a two-year period. However, nine of
the twelve teacher participants resigned their CSLA membership after a year-and-a-half when
they realized that Rush's communication style had not changed and that the CSLA facilitator
was not even trying to bring about this result.
Rush complained that one of the original purposes was to enhance Tee l's
communications, not just hers. She believed that the teacher team members refused to change
their own communication style; they just wanted to change hers.
During the governing board's (board) "Hear the Public" session on May 4, 2000,
Ed Bearden (Bearden), the District's board chair at the time, stated that it was "pretty
that it (CSLA) didn't help a bit. As a matter of fact, it may even [have] made things a little bit
worse."
Department Chair/Liaison Realignment
Near the end of the 1998-99 school year, Rush had a full-day meeting with the
department heads to set the calendar for the next year. The very next week, when the eighth
grade teachers were attending a Great America trip with their students, Rush told the remaining
5

teachers that there would no longer be any department chairs. They were to be replaced with
liaisons, who would represent teaching teams.5
She populated the new system with liaisons of her own choosing. Most of the
department chairs had been ETA members selected by their peers. Accordingly, these chairs
were viewed by the teachers as spokespersons to the administration on issues such as
curriculum, school policies, student discipline, and budget. Most of the liaisons were not ETA
members and were not representatives of their peers. Rush made this major change in the
school's communication structure with no input from either the teachers or the CSLA team. In
response, the teachers placed a large poster at the school site to solicit signatures protesting this
change. 	Shortly thereafter the poster was presented to the board. 	There was no evidence
submitted regarding a board response to this presentation.
One of the requirements of becoming a liaison was to agree to continue the CSLA
process. None of the former department chairs or other resigned members of the CSLA team
wanted to continue that process, so they did not apply for a liaison position. At this time, the
District committed Teel to CSLA for a second two-year term, with the liaisons as the CSLA
team members.
Louck's Address to the Board
In July 1999, Loucks addressed the board about Teel's morale problems, as well as
ET A's disillusionment with the CSLA process. He complained of (1) Rush's inability to
adequately communicate with her staff, (2) CSLA's refusal to attempt to get her to change,
5 The team teaching system refers to teams that consist of five teachers from four
disciplines, two in English, one each in science, math and social studies. This team is
responsible for the entire academic curriculum for a finite group of students.
6

(3) academic programs unilaterally being changed with neither input from the teachers, nor
adherence to the communication principals espoused by CSLA, (4) the unilateral change in
Teel's bell schedule,6 and (5) the "infamous vocabulary list" issue.
SAT -9 Vocabulary List
The first three issues had been the subject of grievances and conflict throughout most of
Rush's tenure at Teel. The fourth issue was the subject of a grievance. The last issue
concerned a relatively new teacher passing out a vocabulary list to her colleagues with the
statement that they could use this list to prepare their students for an upcoming standardized
SAT-9 test. When the teacher was asked where she obtained the list, she rather quietly said
that she looked over her students' shoulders when they were taking the test the year before.
Carol Eneboe (Eneboe ), a retired twenty-eight year District teacher, remembers being at
the Teel faculty meeting in 1998-99 when she heard the teacher make these statements. Both
Rush and Price were present when this teacher passed out her list of vocabulary words.
Eneboe knew that Rush heard the teacher make this statement, because she (Rush) said, "we'll
just pretend we didn't hear that and go on with what we're doing and go ahead and use them,"
or words to that effect. Eneboe stated that she was five feet away, and that Rush was ten feet
away, from the teacher at the time the words were said. Rush strenuously denied either
hearing such a statement from the teacher or making such a statement to the group.
Once the test was given, the teachers realized that the listed vocabulary words were
on the test. When they became aware of this, the teachers became concerned about
tainted test results and their part in them. Eneboe states that she knows of two unnamed
6 The bell schedule matter concerned a Rush unilateral decision that required teachers
to be in their classrooms when the first "passing" bell sounded. This was an issue that
primarily concerned the first period of the day and the first period after lunch. Prior to Rush's
change, teachers were only required to be in their classrooms when the final or "tardy" bell
sounded. There is a four to five minute period between the two bells.
7

teachers who called the District about the matter. In addition, Loucks called the state
Department of Education. Rush contended that she brought the matter to the administration's
attention. However, Eneboe stated that Rush did so only after another teacher came to her and
complained the words she received were listed in exactly the same order as those in the test.
These calls triggered a state-directed investigation, conducted by the District itself. The
results were confidential, as they potentially involved personnel actions. In a July 8, 1999,
address to the board, Loucks referenced this incident when he said "[i]nstead of the
superintendent being pleased with our honesty he stated we overreacted to the situation."
Price's Response to Louck's Presentation
Price responded to Louck's board presentation with a July 19, 1999, letter to him
explaining that it "has long been the policy of the Board to hear only those complaints
regarding employees that are processed in accordance with established district policy." He
referenced Item #4 of the board's agenda under the "Hear the Public" section of the meeting .
. . . No oral presentation shall include charges or complaints
against any employee ... regardless of whether or not the
employee is identified in the presentation by name or by another
reference which tends to identify. All charges or complaints
against employees shall be submitted to the governing board
under provisions of governing board policy.
Price said that Loucks' complaints to the board had identified employees
by name or position and contained issues that have not been
processed through appropriate administrative channels. . . . I can
only assume you knowingly and deliberately decided to violate
Board Policy. This shows disrespect for the Board and its
policies. It is also generally injurious to the welfare of all
employees of the District, including the teachers you represent as
a leader 	the Empire Teachers Association.
Other avenues of protest and complaint are clearly open to you ....
8

...
Both employees mentioned by name or position in your letter
have been sent copies
of
your letters for their attorneys to review.
I understand that whether or not your comments are actionable
under civil statutes is still under review
....
If
you believe that your concerns are valid and would like to have
the issues you raised investigated, you need to pursue a remedy
through appropriate channels. I remind you again
of
the Board's
established process for resolving complaints regarding district
employees. 	[Emphasis added.]
Louck believed that "appropriate administrative channels" required him to bring all
issues to the principal first, then to Price and then, and only then, were they to go to the board.
Loucks insists that he had done exactly that with almost all
of
the issues he touched upon in his
July 1999 address to the board.
Louck's Honors Class Assignment
While attending the above-mentioned Great America trip, Louck learned that his
literature honors class would be taken away from him at the end
of
the 1998-99 school year.
He had been teaching this class for seven years. Concurrent with his reassignment, the course
content was changed from literature to language arts, with an emphasis on writing. He insisted
that his reassignment from the honors course caused him to spend 50 percent
of
his teaching
time outside
of
his credentialed area.
The District claims that Loucks was taken out
of
the program because he admitted that
he was not comfortable teaching writing, and it was necessary to enhance the writing program
for honor students. However, Rush admitted, on cross-examination, that she does not know
when Loucks told her that he was uncomfortable teaching writing, whether it was before or
after she removed him from the honors class.
9

District's Complaint/Communication Policies
Many
of
the core issues in this case concern employees being accused
of
not following
the proper District complaint policies. In order to properly understand the actions
of
the
parties, it is necessary to describe and examine the subject policies. There are four avenues
available for District employees
if
they are dissatisfied with work site circumstances. They are
(1) the grievance procedure, (2) discussion(s) with his/her immediate supervisor(s), either
individually or through ETA, (3) the Price Club, and ( 4) the District's complaint procedure.
Grievance Procedure
The parties' grievance procedure consists
of
filing a grievance alleging a violation
of
the CBA and submitting it up the chain
of
command until it receives a final decision from the
governing board.
Price Club
CBA Article X in its entirety states:
Confer Meetings
The Superintendent and his/her representatives shall meet
monthly at a mutually convenient time after the instructional day
with the Association President(s) and one representative from
each school to confer on matters
of
mutual concern.
These meetings are called the "Price Club." The purpose
of
this "club" is to permit
Price to learn
of
employee concerns and to informally resolve as many
of
them as possible.
Both sides seem comfortable with the manner in which this system worked. The meetings are
informal, but Price insists that any matter brought to this meeting must be previously discussed
principal. The subject is then discussed only
if
the principal was unable to
previously resolve the matter. Any matter not resolved by the Price Club can be
the board. Price believes that failure to notify the site principal of the matter before it is
10

brought to the Price Club is a breach
of
a teacher's professional responsibility, that may
appropriately be reflected with a lowered rating in an evaluation.
In addition, Price believes quite strongly that personnel issues, including complaints
about administrator(s), should be kept confidential. He also believed that a general complaint
about a principal would constitute a personnel issue, because it is specifically against an
employee. Consistent with this belief, such matters would not be an appropriate topic for the
Price Club. However, Price said that
if
the teachers came to him with a complaint against a
principal, and they had previously discussed it with her, he would either discuss it at the Price
Club, or depending "on the sensitivity
of
the issue or we might set up another time to discuss it
more privately."
The dividing line between whether or not an employee concern is a personnel issue, in
Price's view, seems to be based on a determination
of
whether the complaint is primarily
aimed at procedures and policies or the individual.
District Complaint Procedure
On March 11, 1999, a veteran Teel teacher, JoAnne DeMattos (DeMattos), addressed
the board with a series
of
complaints regarding her sense
of
distrust and dissatisfaction with
Rush. This letter will be discussed in detail infra. Shortly thereafter, Price wrote to the Teel
CSLA team to instruct them to use the Parent/Community Complaint procedure, as set forth in
District Administrative Regulation (AR) section 1312. l(a),
if
they had a complaint against
another District employee. This is the first time there is any record
of
Price directing
employees to use this procedure for a complaint against another employee.
On January 24, 2000, ten months later, Price wrote a board memo to remind all
certificated staff of various problem resolution processes available to them, i.e., grievances,
Price Club, Interest Based Bargaining and "complaint procedures." The memo said that the
11

board would ultimately hear any formal complaints that were unresolved at the lower levels. It
went on to state:
We believe that such complaints must be reviewed and
investigated, but because they involve confidential matters
surrounding employee performance, we strongly believe that such
matters are best resolved through the established confidential
complaint procedures .
. . .Therefore, we are referring the issues raised at the Board
meeting in open session [complaints about Ms. Rush raised
by
Teel staff at a November 4, 1999, board meeting] back to our
established complaint resolution process. Any staff members
who are inclined to use the "Hear The Public," section
of
a
regular Board Meeting to bypass other problem solving processes
and bring a personnel matter directly to the Board are not
adhering to personnel practices established in Board policy
....
[P]ersonnel issues are not appropriately discussed in a public
forum. 	[Emphasis added.]
The public complaint procedure, located in District AR section 1312.l(a), references
only parent/community member complaints against an employee and not staff complaints
against an administrator. Accordingly, ET A asked Price for a clarification
of
his directive. On
March
1,
2000, Price once again referred the teachers to AR section 1312.l(a), stating this was
the process to be utilized by members
of
the staff with a complaint against another staff
member(s).
AR Section 1312. l(a) states, in pertinent part:
Community Relations
Parent/Community Complaints Concerning School Personnel
Whenever appropriate, complaints by parents, guardians and/or
other members
of
the community should be made directly by the
complainant to the person against whom the complaint is lodged.
the complaint is not or cannot be resolved at this level, the
complainant should direct the complaint to the employee's
administrative supervisor, or principal. If the complaint, after
review by the supervisor, remains unresolved, the complainant is
requested to put the complaint into writing and the supervisor
shall refer the written complaint, together with the supervisor's
12

report and analysis
of
the situation, to the superintendent or
his/her designee. 	[Emphasis added.]
The regulation goes on to explain what information should be in the written complaint
and briefly describes the process by which a complainant could appeal a preliminary decision
to the board itself.
Price stated that everyone, teacher, parent, or member
of
the community, who wanted
to pursue a complaint against an employee past the principal level, would have to use the
parent/community complaint process and submit their complaint in writing. However, John D.
Berry Ph.D., deputy superintendent, admitted that parents who had complaints about Rush in
1998 or 1999 were not told that they must put their complaints in writing in order to have them
considered. On the other hand, employees were always required to put their complaints in
writing in order for the board to consider them.
In an August 22, 2000, seventeen-page memo to "All Teel Staff," Price responded to an
ETA allegation that the District had directed the teachers to a complaint form that did not exist.
Price's response, in pertinent part, is
A review
of
all written documents regarding complaints indicate
that no employee has ever been referred by administration to a
complaint form. 	We have consistently referred employees to a
complaint resolution process that is clearly defined in policy.
Each Teel employee has received a copy
of
this policy. 	In order
to facilitate the perceived need for a form, the district has
developed a form for employees to use in seeking resolution
of
complaints. 	[Emphasis in original.]
The new form omitted the parent/community references and set forth a process for the
complainant to move through the same three step process as set forth in the grievance
complain directly to the involved employee, appeal to supervisor(s), and,
eventually, to the board. There was no form for either parents or staff prior to this time. At a
13

negotiations session on November 13, 2000, ETA, referencing the proposed complaint form,
said "as far as we are concerned, this looks good."
In his August 30, 2000, "welcome back" message to Teel employees, Price referenced
the turmoil at the school at the end of the previous school year, and set forth a program to
resolve it. His message, in pertinent part, is as follows:
The 1999-2000 school year ended on a less than positive note
with the submission to the Board of a list of complaints from
several Teel teachers. Under separate cover I have sent the
Board's response to the issues brought forward by ET A ....
Those teachers who sent individual letters or e-mail messages ...
have also been sent an individual response. These responses
represent the Board's final decision and the district considers
these issues resolved/ closed ....
The vast majority of concerns reviewed by the Board at their
June 22 nd meeting dealt with issues that had remained unresolved
over long periods of time. We have reviewed complaint
resolution procedures and developed a form to be used by any
employees who wish to file a complaint against other employees.
The Board believes that using the established complaint
resolution procedures allows employee complaints to be resolved
in a manner that respects the rights of all those involved. I
strongly encourage the use of this process to promote the
resolution of conflicts at the site. Guidelines for lodging
complaints include:
• 	Informal discussion of issues with those involved. Most
issues can be resolved at this level. If a conflict persists after
discussion with those involved, the complaint procedures
should be initiated at the next level.
• 	Individuals involved need to initiate the complaint procedure.
It is not appropriate or efficient for staff to take on the issues
of others.[7]
• 	The Board is very interested in resolving complaints that
follow established procedures. They [sic]do not believe it is
ever appropriate to bring complaints forward in public.
7 Price testified that he did not intend that these two sentences would preclude ET A
from filing a complaint against an employee/administrator.
14

In order to proceed with the orderly operation
of
Teel Middle
School, we need to leave past actions in the past and move
forward together. I encourage the use
of
the new complaint form
to resolve complaints at the earliest possible time and as close to
the source
of
the problem
as
possible. Likewise, I encourage the
use
of
the grievance procedure whenever a disagreement over
contract language occurs. The use
of
these procedures will
ensure a structured review
of
all disagreements and encourage the
resolution
of
grievances and complaints in a timely manner,
respecting confidentiality and due process. 	[Emphasis added.]
Summation
Prior to August 2000, the District's policies concerning employee complaints about
administrators were vague and internally inconsistent. Any attempt by a teacher to speak to
the board during its "Hear the Public" session was met with negativity and a referral to
"established procedures." However, the "established procedures," on their face did not apply
to staff members. The teachers were encouraged to use the Price Club, but not for complaints
about their principal. They could file grievances, but not lobby the board about the merits
of
those grievances. The net effect
of
this system was to deny the teachers any viable means to
complain about any
of
their supervisor's actions.
The creation
of
the new form would seem to add some certainty to this process, but
there was no evidence proffered regarding whether it provided any effective alternatives to the
above-described circumstances.
Vote
of
No Confidence
-May
2000
In May 2000 the ETA asked all Teel teachers, ETA members and non-members alike,
to vote as to whether they had any confidence in their principal. ETA reported that eighty-nine
percent
of
fifty teachers8 voted for a declaration
of
no confidence in Rush. A few days later,
8 Although the evidence repeatedly references fifty-four teachers voting, the voting
roster (Respondent Exhibit DD) shows that only fifty voted.
15

on May 3, ETA sponsored a leafleting at Teel's annual Open House night to inform the parents
of their vote. ET A presented the no confidence resolution to the board at its May 4 meeting.
In a May 10, 2000, memo to the ET A executive board, Price complained of ET A's no
confidence vote, decrying its
... attempt to make the evaluation of a site principal a public
process .... Neither I nor the Board will be intimidated into
abandoning established district evaluation and/or complaint
procedures by the presence of the media or the use of concerted
activities regarding Ms. Rush. . . . 	I do believe that such a
campaign is unprofessional and unethical and may also be illegal.
... repeated attempts to discuss these personnel issues in the public arena have
been made by some staff. Such disruptive, disrespectful, and illegal actions
cannot and will not be tolerated. [Emphasis added.]
May 4 Board Meeting
At the May 4, 2000, board meeting there was an extended "Hear the Public" session.
The single-spaced verbatim partial transcript of the parent/teacher comments covered twenty-
four pages. The entire dialogue concerned circumstances at Teel. Many of the participants
asked the board to sit down with the teachers and parents and work out a solution to Teel's
problems. Most of the participants were complaining about various aspects of Rush's tenure as
principal, although there were several comments in support of her.
Shortly thereafter, in a May 16, 2000, memo, California Teachers Association
Executive Director John Uelmen, asked Price for an open forum to "look for solutions to the
problem." In response, Price offered to forward any and all Teel teacher complaints to the
board. 	On June 5, ETA sent Price an extensive list of complaints with accompanying
documentation. On August 22, Price, on behalf of the board, responded to, and basically
the complaints. As a part this response the board voted 5-0 to express their
confidence in Rush.
16

Permissible Statements at Board Meetings
On a number
of
occasions Price told employees who had addressed the board at its
"Hear the Public" session, to use the complaint process instead
of
speaking directly to the
board. 	When asked
if
it was inappropriate for employees to ever bring their complaints
directly to the board, Price testified as follow:
Q 	[by ALJ]
	...
Are you telling them they can't bring up
their complaints with the principal in front
of
the board
of
...
directors?
A
	I'm
not telling them they can't,
I'm
telling them the
board's preferred method ofresolving complaints is through their
established procedure. They certainly have a free speech right
to
...
say what they want during "Hear the Public", but the board
does not want to respond to complaints that are delivered in that
way. They want them in writing so they can respond to the
written complaint.
Price acknowledged the employees' free speech rights to bring up whatever issue they
wish before the board. However, he also stated that
if
the issue involves a personnel matter the
board will not enter into a discussion with the speaker.
Price also stated:
Q
	...
if
teachers came to the board and complained about
the communications problems at Teel Middle School and alleged
that those communications problems were due to the managerial
of
the principal, would you consider that a personnel
A
	...
Not necessarily, no.
Price also stated that
if
ETA wants a resolution
of
its complaints against Rush, it should
not bring it up at board meetings. 	On the other hand,
if
all they want to do is air complaints, it
is not proper or professional, but not illegal due to their free speech rights, to do so.
17

With regard to whether a teacher's address to the board, without going through the
complaint process, merited a lowered "Professional Relations" rating in an evaluation, Price
first testified that he did not believe that such ratings should be lowered.
Later he said that it would be proper to have those ratings lowered on their evaluations.
The next day he said the lowered ratings would not be appropriate.
Student Failure Rates
In 1995-96 Rush's emphasis was on teachers whose student failure rates were too high.
She called a number of teachers into her office and asked them why their percentage of Ds and
Fs was higher than what she felt was proper. Because "too high" was never defined, Loucks
asked Rush to issue a memo explaining her grading standards. ETA believed that this would
enable the teachers to better understand what was expected of them. Rush refused to issue
such a memo, stating that teachers could individually come and talk to her if they had
questions or concerns. She was willing to discuss her standards one-on-one, but not in a
memo.
ETA raised the grading issue at both Teel department meetings and at the Price Club.
Eventually Price came to Teel to discuss the matter. 	One teacher, Kate Archangel (Archangel),
an eighth grade English teacher and ETA activist, seemed to be the focus of Rush's concerns,
ostensibly because of a high failure rate in her general population classes, but not in her honors
Rush did not explain to Archangel what was an acceptable level of failing grades; she
just wanted her level to drop appreciably.
Archangel discussed her grading policies with Rush and, although she disagreed with
some of the principal's approaches to solving the problem, she modified her policies as best
she could. Throughout this entire time Archangel was in compliance with the District's written
grading policies. Archangel talked to and solicited advice from her fellow teachers about the
18

issue, consulted with ETA, and eventually brought the matter to the Price Club. Rush accused
her of causing trouble by discussing this subject with other teachers and by taking the matter to
the Price Club. She also threatened to remove Archangel from her honors class assignment if
she did not bring down the number of her failures. Although the number of her failing grades
diminished, Rush eliminated her honors class assignment at the end of the 1995-96 school
year.
When asked if she had had any earlier conflicts with Rush, Archangel responded:
A 	Yes, my first interaction with Ms. Rush was over
misrepresentation of moving a student from my class to a team
member's class without talking to me about it. I went in to speak
to her about that and she said that yeah, that she had moved the
student and that she hadn't really talked to anybody about it
except the parent. I asked her if she talked to the other team
member, whose class she move[ d] the student into, she said no.
However, I found out a day or so later that she had indeed spoken
to this other teacher about it before she had moved the student.
And when I went back to ask her about that, I don't recall exactly
what she said about why she misinformed me but, the next day
after that the other teacher told me that she had been chastised for
speaking, for telling me the truth about the matter and that what is
said in the office from now on is supposed to stay in the office.
Rush Hour
Early in the 1998-99 school year, ETA approached Rush about the possibility of setting
up monthly meetings with Teel's ETA representatives. This monthly meeting would enable the
parties to discuss employee concerns at the local level. It was conceived, in part, because
many ET A members were afraid to speak to Rush individually, and because the Price Club
seemed to work well at resolving disputes quickly and informally at the District level.
They suggested the meetings be called the Rush Hour, paralleling the Price Club pun.
Rush felt the term "Rush Hour" was sarcastic and meant to poke fun at her, but she could not
explain why the term "Price Club" was not similarly derisive.
19

Rush declined to set up such meetings. In her view, meeting with ETA representatives
should only be on an as-needed basis, and there were already procedures in place for the ET A
to voice its concerns, i.e., the Price Club and the CBA grievance procedure. She told ETA that
she did not want it speaking for the teachers at Teel, because she did not think it represented
the interests of all teachers.
Rush's further justification for declining to establish a Rush Hour was that there were
already individual procedures in place at Teel, e.g. individuals could e-mail her, call her, or
come in and speak with her.
In asking her to reconsider her position, the Teel ETA representatives wrote Rush,
... It is possible that sometimes issues might cross over between
your teaching staff and union members' interests, but not always.
Therefore, it is not always possible or appropriate to bring these
issues through the channels suggested by you.
Other site administrators meet with union representatives in a
cooperative and casual manner. It appears to be successful and
eliminates issues being forwarded to the Price Club.
The ETA representatives prepared a list of issues of concern to be used in a hoped-for
meeting with Rush in November of 1998. This list, in abbreviated fashion, is as follows:
( 1) Ventilation systems need regular service to promote clean air
environment, (2) Rain gutters need to be cleaned out to avoid
mold, mildew and potentially ruinous effect on floors and
carpeting, (3) Request for NCR copies of monthly attendance
sheets, (4) Serious concerns about Deputy Mason's
unprofessional behavior toward teachers and students,
(5) Request for clarification ofrequirements for SIP days, SST
and staff meetings, etc., (6) Request for clarification of
independent study procedures, (7) Request for EUSD Policies and
Procedures and State Education Code documents to be kept
current and available to teachers, and (8) Confirm or dispel rumor
that teachers must have student corroboration of their version of
events in an incident/disciplinary report.
20

In her response Rush described what she believed to be the proper method ofresolving
employees' concerns, as follows:
If a staff member(s) has a question/concern, he/she should first
discuss the issue with the person/persons directly involved. If the
matter is not resolved at that level, the next step is to meet with
site administration. If the matter is still not resolved, the next
step is to meet with district level administration. If someone is
uncomfortable meeting with administration, he/she may bring a
colleague.
The Rush Hour was never implemented at Teel. Price states that he does not know of
any other District school that has a monthly meeting that is equivalent to the Price Club.
Academic Senate
In June 1999, in another attempt to create an avenue of communication between the
Teel teachers and the administration, ETA created a new body, the Academic Senate. ETA
believed that under the liaison system there was no communication between the various
academic disciplines and Rush. Therefore, it created this new body which was aligned along
academic discipline lines. Various teachers, representing academic departments, were elected
to the Senate in late October 1999. In November, the Senate held numerous meetings and tried
to meet with Rush. She gave them a single audience, at which time she told them that the
issues they were raising should go through the liaisons.
DeMattos
Background
DeMattos has been teaching reading and language arts at Teel since 1984. She was
described by Price as not just a good teacher, but an "excellent teacher." She is currently
teaching an honors class at Teel. She serves as Teel's ETA site representative, which requires
her to represent the teachers to Rush. In addition, she served as a Teel representative to the
three years from 1997-98 through 2000-0 l.
21

Allegations of Failure to Previously Discuss Matters with Rush
The District cited four instances in which it contends that DeMattos failed to discuss
matters with Rush prior to bringing them to the Price Club. In an abbreviated fashion, these
matters are: (1) the report card revision committee, (2) Carol Braden's (Braden) overcrowded
classroom, (3) annual goals, and (4) an allegation that the liaisons failed to communicate
properly. Each of these issues will be discussed below.
Report Card Revision Committee
On February 22, 2000, DeMattos brought to the Price Club the fact that several Teel
teachers who had volunteered to serve on a District report card revision committee had been
told that their assistance was not needed. DeMattos later learned that sometime between the
request for volunteers and the February Price Club meeting Rush decided that the school's
report card would not be revised.
Overcrowded Classroom
In October 2000 DeMattos brought up the issue of Braden's overcrowded classroom.
DeMattos contended that Braden very clearly said that she had spoken to Rush. In addition,
Braden discussed the subject at a sixth grade meeting and the minutes of those meetings
always go to Rush. Price said Rush did not know anything about the issue. The District
contends that once Price contacted Rush on the matter, it was resolved quickly and amicably.
The CBA states that the overloaded teacher is entitled to specified additional amounts
of either (1) classroom clerical aide time, or (2) budgetary funds for instructional materials or
equipment.
Rush insisted that she was monitoring the overload situation, but that Braden had not
yet sent anything to her in writing about her preference of aide time or budgetary funds.
22

Shortly after this October 2000 Price Club meeting, Braden told DeMattos that Rush
admitted that she (Rush) forgot that Braden had talked to her about the matter. And yet, in her
testimony, Rush replied in the affirmative when the District's attorney's asked her if this was
an example of DeMattos failing to follow proper procedures.
Annual Goals
In September 2000, DeMattos, at a Price Club meeting, raised the issue of whether a
principal can include annual goals in a site plan over the objections of a department. DeMattos
had been told by Corriea that she (Corriea) had discussed the issue with Rush. Later DeMattos
learned that Corriea was in error, and that the first time the issue was discussed with Rush was
a month after the September Price Club meeting.
DeMattos admitted that sometimes, due to time restraints, she takes things to the Price
Club based on assertions by her fellow teachers that they have discussed the issue(s) with
Rush, rather than personally checking with Rush to determine if she has been previously
notified of the issue.
Vickery Liaison Issue
Jessica Vickery (Vickery), a probationary Teel teacher had a complaint about the
liaisons not properly communicating with her. The District pointed out that ET A brought up
Vickery's issue, even though Vickery never requested it do so. However, Corriea believed
Vickery brought it to ETA, because it was discussed at a Teel 	meeting. The District
contended that this incident supports its contention that DeMattos and ET A bring up issues that
are not really valid employment issues and are designed to do no more than "stir up trouble."
Address to Board
On March 11, 1999, DeMattos addressed the board at its meeting. She read a letter that
addressed to Price and Rush. Her letter, in pertinent part, is as follows:
23

In all the years I have taught for this school district, I have never
felt so compelled to describe my perception
of
the atmosphere
and climate
of
this school. And I do so now 	not out
of
any
desire to make a personal attack, because I appreciate the support
this principal has given to activities in my classroom, but
because, in talking to many
of
my colleagues, I am getting a
sense
of
distrust and dissatisfaction with the leadership
of
this
school. And, although, many fear to say it aloud, the existence
of
CSLA during the past two years has made absolutely no change
in this leadership style, nor has it created any different
communication venue at this site .
. . . [M]any feel our professional judgement has come to mean
and stand for very little in the decision making process.
Increasingly, we are being "told" what to do and how to do it.
...
. . . I understand the frustration that has occurred over the
controversy concerning the passing bell. The handling
of
this
situation is seen as one more attempt by the administration to
control and direct teachers instead
of
discuss, compromise, or
achieve consensus, and this has everything to do with leadership
style
....
The District, in its brief, stated that the primary purpose
of
the letter was to "express
Ms. DeMattos' personal opinion
of
the issue
of
the passing bell." It rejected her
characterization
of
her remarks as being on behalf
of
either ETA or the other Teel teachers.
Shortly after DeMattos delivered her remarks, a statement in support
of
her comments
was sent to Price, Rush, and the board. The statement, in pertinent part, states:
Teel staff members would like to express their great respect and
admiration for JoAnne DeMattos. She had the courage and
tenacity to write a letter to both Ms. Rush and Bob Price
expressing her dismay over the state
of
affairs, the leadership,
and the morale at Teel Middle School.
We would like to thank JoAnne for publicly expressing what
most
of
us are afraid to stand alone and say. Her concerns
certainly reflect the feelings of many of the staff, who, for
reasons
of
their own, will not, or can not, voice them publicly.
Instead, they are looking for new jobs. Currently, at least 26% of
the teachers are actively looking for other jobs. Others are
considering leaving; several more would leave if their
circumstances permitted.
24

The statement was signed by thirty-three Teel staff members.
Price's Response
Price responded to DeMattos' address in a memo dated March 17, 1999. He first
chastised her for not giving him a chance to respond before reading her comments publicly.
He then stated, in direct contradiction to the view expressed in the District's brief, that it
appeared to him that her memo was "primarily in regard to issues of others, rather than your
personal concerns." Price admonished DeMattos "not to own the expressed pain of others."
With regard to her complaints about poor communication at Teel, Price stated
... In terms of improving communication, there was an
agreement by the CSLA team and Teel staff to follow established
procedures addressing issues through normal supervisory
channels. Not one of these unhappy colleagues you refer to has
given me the professional courtesy of appealing any decisions
made by site administration during the past school year, despite
repeated offers from me to hear any appeals. Do you believe that
this is professional conduct?
In his closing paragraph he again states that he
would encourage you not to own the expressed pain of others.
In response to DeMattos' complaints about Rush's unilateral bell schedule change, he
wrote that any discussion before the board of a matter in a pending grievance is inappropriate.
However, in his testimony, there were a series of questions, answers, objections and
rulings about whether he still believed it was inappropriate to discuss a grievance in the
board's "Hear the Public" portion of its meetings. Eventually Price testified that despite the
like it to happen another way, "I pretty much have a neutral view."
DeMattos testified, without rebuttal, that all of the matters she referenced
March 11 address to the board had previously been discussed at the Price Club, so she was at a
loss to know what he meant when he said he had not been given the courtesy of prior
knowledge of her complaints.
25

Rush's Response
Rush also complained, in a March 19, 1999, letter to DeMattos, of not having been
given a prior copy of her remarks to the governing board. 	Once again DeMattos said that all of
the issues in her March 11 letter had been previously discussed with Rush.
Near the end of her response Rush included the following statement:
I must admit that I was extremely surprised that you would read
your letter in the open session at the Board of Trustees meeting
on March 11, 1999, without first affording me the professional
courtesy of an opportunity to respond. Further, if you were
dissatisfied with my response then your next step should have
been to meet with or correspond with Dr. Price. The processes
are in place to help resolve employee issues in this district in a
professional manner. I encourage you to use them appropriately
in the future.
Evaluation - 2000
Two months later, in her May 9, 2000 evaluation of DeMattos, Rush gave her a "does
not meet" rating in the area of professional relations, with the following comment attached:
This is an area that needs improvement. You need to learn to
utilize the communication processes in place in the district in
order to work on resolution of problems and concerns.
Rush testified that there were two major reasons for DeMattos' lowered rating: (1) her
March 11, 1999, letter to the governing board, and (2) her failure to follow the "prior
notification" Price Club rule.
DeMattos, on May 11, 2000, submitted her evaluatee's comments in rebuttal to Rush's
evaluation. The first substantive paragraph states:
In response to Item D [Professional Relations], I would like to
state 	I have tried many avenues of communication in order to
solve problems and discuss concerns. I have talked to the
administrator one on one, and with other teachers. I have raised
issues at language arts department meetings. I have taken issues
to Price Club. Finally, I have written letters and spoken at board
meetings, not out of a desire to create or promote a negative
atmosphere at our school, but to bring attention to issues that
26

have been raised. I have always thought and I still believe that
if
this administration would listen, discuss, and actually consider
teacher input that many problems could be resolved and many
of
the processes we have to work through would be more positive
and effective.
	If
I haven't used the correct communication
processes, then I regret to say, I
don't
know what they are.
DeMattos expanded on her evaluation rebuttal comments in her testimony when she
stated she spoke to Rush (1) personally, in her role as DeMattos, the teacher, (2) personally, as
DeMattos, the ETA representative, (3) personally, as a part
of
a group
of
teachers, and (4) in a
group format at ( a) language arts meetings, (b) literacy meetings, and (c) grade level meetings.
Rush was not responsive to any
of
these approaches. DeMattos did not know what else she
could do to try to work with Rush to solve the teachers' problems.
DeMattos was asked
if
she believed that she was given a low rating in professional
relations because
of
"these communication issues on campus." She replied
A 	The only reason I could possibly think
of
had to do with
my job
as an ETA rep, that was the only thing I could think
of
that that had to do with.
Q 	So, when you got the evaluation, you understood that to
be a criticism
of
you in your role as an ETA rep, is that right?
Yes, well, that I spoke and represented teachers. --
[ALJ] 	The answer is yes or no.
THE WITNESS: 	Yes.
In October 2000, DeMattos was informed that due to her "does not meet" professional
responsibility rating the previous year, she would be evaluated in all areas the next year, rather
than bi-annually as is usually the case for California tenured teachers. This additional
evaluation caused DeMattos to revisit the reasons she had been marked down when she
believed she had followed all of the appropriate communications procedures.
27

She decided to ask Rush to explain
why
she received her "does not meet" rating, to
better enable her to avoid being "marked down again." She wrote to Rush as follows:
...
Please let me know (in writing) specifically what I failed to
do and what I should attempt to do differently this year so that I
will be able to meet your expectations.
Rush responded on November 17, 2000 as follows:
...
By
not following established procedures, problems are
difficult to address in a timely and efficient manner. Issues that
you carry to Price Club and to ETA meetings, for example, before
they have gone through channels at the site, waste the time
of
people involved, and can result in misunderstandings, and
frustration. (Emphasis added.)
Shortly thereafter DeMattos received a very positive 2000-2001 evaluation from
Assistant Principal Michael Hermosillo (Hermosillo), with no negative ratings or comments
of
any kind.
Meeting
of
Rush and Teel ETA
Rush's attitude toward ET A activities was made apparent in an October 31, 2000,
meeting she had with DeMattos, Corriea, who is another Teel ETA teacher representative, Jan
Hastings (Hastings), a California Teachers Association staff director, and Teel Vice-Principal
Lisa Gonzalez. ET A requested the meeting to discuss various issues that the teachers raised at
an earlier ETA meeting.
DeMattos remembers that Rush was visibly upset at the beginning
of
the meeting. It is
her belief that Rush was upset because ET A had typed up various issues in an agenda format
and was speaking on behalf of
all
of
the teachers. 	Corri ea remembers Rush stating it was not
to 	things in writing. She also remembers that Rush directed some
comments directly at her (DeMattos), insisting that those particular issues were DeMattos'
personal gripes. Rush commented that "this is an example of why you were marked down."
DeMattos believes that this comment refers to her evaluation rating on professional relations.
28

Contemporaneous ETA notes describe the beginning
of
the meeting as follows:
The principal' s immediate response was her disappointment/
dissatisfaction that staff issues
of
concern were being presented in
writing by the ET A organization. 	She indicated these issues
would be better addressed
by
having any/each individual with a
concern speak directly to her (in her office) in the presence
of
an
ET A rep
if
desired. While this may be successful for some, many
teachers feel more comfortable having ETA represent their
various concerns, including those involving miscommunication at
the site, and in fact it is ETA's responsibility to do so. This was
supported by CT
A's
director. 	[Emphasis added.]
During this meeting, Rush accused Corriea and DeMattos
of
"stirring up conflict," and
insisted that teachers should come to her individually rather than having their concerns
presented by their union. Hastings' contemporaneous notes, and a subsequent "follow-up"
letter written by the ETA Executive Board to Rush, confirm these remarks. 	Rush denied
making these statements, but admits saying that for timeliness reasons ETA should just refer
employees with problems to her.
In addition, DeMattos, at the same general time, attended a teachers' meeting in which
she was accused, by Rush,
of
creating problems and not trying to solve problems when all she
did was ask questions. In one such instance she merely asked for any available research on a
program she was being asked to integrate into her curriculum. She wanted to know how the
program had worked in the past. Rush accused her
of
being negative and not attempting to
solve problems.
Davis
Background
Kim Davis (Davis) was a Teel English teacher for eleven years, from 1990 to 2001, an
ETA representative from 1993-94, and its treasurer from 1994 to the present time. ETA
executive board meetings were held in her classroom for many years, and Rush would
occasionally ask her about union matters. Shortly before March 29, 2000, she formally
29

requested a transfer to any
of
the District schools other than Teel. She has since left Teel and
now works at Capistrano Elementary School, another school in the District.
No-Tell Day
CBA Article VI.5 is entitled "Personal Leave - Partial Payment." Section A grants
employees the right to request the District to grant them a maximum
of
three partially paid
personal work days
of
leave for "pressing personal reasons that do not qualify" for specified
necessity leaves. 	Section B, in its entirety, is as follows:
Two 	days
of
the above three (3) may be taken by the
employee without having to specify the reason. However, the
employee may not use these two (2) days for purposes
of
entertainment, vacation or concerted activities. Prior to taking
these two (2) days, notice to the District shall be provided in the
same manner as in the case
of
an employee taking sick leave.
(Emphasis added.)
On March 15, 2000, Davis accompanied her students when they attended a week-long
session at the Foothills Horizon Outdoor Education Camp (camp) in the Sonora area. 	This is
an educational site in the mountains about an hour-and-a-half from the District. Davis had no
educational duties, as these were assumed by the camp's staff, which is employed by the
County Office
of
Education. Her role, along with the other attending Teel teachers, was to
supervise the students. While at camp, Davis took a CBA-sanctioned "no-tell" day off for the
purpose
of
attending a job interview in a neighboring district. She was absent from the camp
from 9 a.m. to 2 p.m. She arranged for a colleague, Sandra Burdick (Burdick), who is also a
District credentialed teacher, to replace her for the few hours she (Davis) spent at the job
interview. Burdick herself was on a "no-tell" day when she substituted for Davis.
Deputy Superintendent Berry said that while a teacher ordinarily may use a "no tell"
day to cover an absence from school, the usual substitute service notification procedure does
not lend itself to supplying substitutes for the camp, due to its distance from the District.
30

There are no written rules, CBA language or District policy, with regard to the proper
manner
to take a "no-tell" day
off
when assigned to the camp. Davis said that although she did not tell
Rush
of
her plans, she "mentioned" them to the school secretary. However, the secretary
testified that she told Davis that she should let Rush know she was leaving.
Burdick also used a "no tell" day when she covered for Davis. The District contends
that Burdick was attending the camp as a "volunteer," not as the result
of
a District assignment.
When pressed on the issue, Davis testified
that"
...
in retrospect I probably did not think it
through as well as I should have."
For her actions in this matter, Davis was given a letter
ofreprimand by
Berry. She filed
a grievance over the letter. On appeal, Price slightly modified the letter's wording, and re-
issued it to her on June 2, 2000.
Davis' letter
ofreprimand
is not one
of
the allegations set forth in this case's complaint,
as it was issued on June 2, 2000, more than six months prior to the date the charge was filed,
February 27, 2001, with PERB. However, evidence regarding this matter was accepted into
evidence as it impacts the question
of
whether or not there was a pattern or practice
of
union
animus at Teel during the subject period
of
time.
Another teacher, Steven Cleek (Cleek), also took a no-tell day while at the camp. There
was no evidence proffered regarding the details
of
his absence. He also received a letter
of
reprimand. In an October 18, 2000, Price Club report, Price, in response to an inquiry,
confirmed that Cleek was "replaced by a full time intern teacher."
Comments to Press at Open House
On May 3, 2000, at Teel's open house, ETA leafleted the attending parents,
them
of
its no confidence vote on Rush. When a Modesto Bee reporter came to the school, she
was referred to Pam Wright (Wright) and Davis. Davis was quoted in the local paper the
31

following day as saying that Rush does not listen to her
staffs
comments and "she
micromanages and when somebody questions her decision she publicly ridicules you
and
dresses you down."
Evaluation-2000
On May 10, 2000, Davis received her bi-annual evaluation. The category
of
"Professional Relations" was marked as "does not meet" with the following explanation:
In the past I have felt that you have been open with
me
regarding
concerns and issues. In the past few months I have observed a
lack
of
communication and candor between us.
If
you have an issue or problem, we need to work together in a
professional manner towards resolution.
When Davis met with Rush just before the end
of
the 1999-00 school year to learn why
she had been marked down in the area
of
professional relations, Rush told her that she did not
appreciate her staff talking to the newspaper. In her testimony, Rush did not deny making this
statement
~
she simply could not recall whether she made it or not.
Rush stated that the camp incident was her reason for giving Davis a low evaluation
mark in professional relations. She further stated that she did not reference this incident in the
evaluation because a grievance was pending and she did not want to impact that process.
Davis' evaluation is not one
of
the allegations set forth in this case's complaint, as it
was issued on May l 0, 2000, more than six months prior to the date the charge was filed,
February 27, 2001. 	However, evidence regarding this matter was accepted into evidence as it
impacts the question
of
whether or not there was a pattern or practice
of
union animus at Teel
at the subject period
of
time.
Removal From Honors Class
A second allegedly retaliatory act occurred at the end of the 1999-00 school year when
Davis was informed that she would not be teaching the sixth grade honors reading class she
32

had taught for the previous three years, and would be given a class
of
low achieving readers.
She had not taught this student level prior to this time. The District explained that there were
not enough incoming sixth graders to make up two honors classes.
Historically, there had always been two sixth grade honors classes at Teel. One was
exclusively populated by honors students, the other included mixed honors and high achieving
students. The latter class usually had two-thirds honors students.
Rush had to determine which
of
the two 1999-00 honors class teachers, Davis or
Marilyn Rice (Rice), would teach the honors reading class in 2000-01. Rush said that Rice, the
school's Student Activities Director, also teaches a leadership class and has an extra
preparation period during which her students go to another sixth grade teacher. Because Davis
did not have this daily interruption in her schedule, Rush made the decision that it would be
better to assign the Corrective Reading Program Comprehension class to Davis so the below-
grade level students would not be required to "float" between two different instructors. 	In
other words, the advance honors students were better suited for Rice's schedule, because they
had a greater ability to adapt to her shifting schedule.
ETA believes this explanation is pretextual because Teel had, historically, its largest
grade class ever. In the 2001-02 seventh grade, populated by 2000-01
's
sixth graders,
there are two honors classes, with both classes having honors and high achieving students. Teel
School Psychologist Tracy Manzoni (Manzoni) said that for the past five years Teel has had
two honors classes in both sixth and seventh grade, with the only exception being the 2000-01
Davis stated that she had several students in her 2000-01 class that had been
recommended for honors, but, for some unknown reason, were not assigned to the honors
class. 	In the past, she had a "mixed" class, which included honors students and others whose
33

parents specifically requested Davis as a teacher, often because she had previously taught the
student's older sibling(s).
On May 5, 2000, Rice wrote a letter to Price. In it she included the following two
sentences:
I, personally, am appalled at the unprofessional behavior of some
of our teachers
and
In closing, I just want you to know I am a Ms. Rush supporter
and I am embarrassed by the behavior of some of my colleagues.
This letter was written shortly after Rush chose Rice, rather than Davis, to teach the
honors class in 2000-01. This letter of support of Rush is in contrast with a petition Rice
signed in March 1999.
Shortly after DeMattos wrote her March 11, 1999, letter to the board about Rush
decrying "one more attempt by the administration to control and direct teachers instead of
discuss, compromise, or achieve consensus," Rice signed a petition thanking DeMattos for her
expression of dismay over "the state of affairs, the leadership, and the morale at Teel."
Clearly the various Teel teachers were being pressured to either support ETA or Rush.
Rice solved the problem by publicly expressing support for both sides.
Manzoni also wrote Price expressing confidence in Rush and stating that she was
"ashamed and embarrassed by recent action taken by 	members."
Partner-Teacher Non-Selection
A third allegedly retaliatory act occurred when Davis' two requests to be a partner-
teacher in the fall of 2000 were ignored by Rush. The District's partner-teacher program pairs
a veteran teacher 	a new one in the same discipline to help the latter "learn the ropes," such
as dealing with report cards, parent conferences, and general familiarization with the site. The
34

extra duties earn the teacher a $175 annual stipend, and Davis had performed these tasks for
the three previous years.
Rush
failed to give Davis an explanation for
her
failure to be re-appointed,
but she
testified that she
made
this decision for two reasons: (1) the June 2000 letter
ofreprimand,
and
(2)
Davis'
request, in March 2000, to transfer to another District school.
	Rush concluded that
Davis did not make a good candidate for a partner-teacher because she was not a
proper
role
model, and it was
not
clear that Davis would stay at the school for the entire year.
Although Rush never told Davis
why
she did not select her for the partner-teacher
program, she did tell
her
that new sixth grade teachers were not going to
be
assigned to the
classroom area near her because Rush believed she was a negative influence.
Whinery
Background
Marj Whinery (Whinery) has been a Teel physical education (P.E.) teacher for twenty-
six years. She was an ETA co-president with Loucks in the early 1980's, and has periodically
been an ET A site representative, most recently for the 1999-00 school year. 	She had
been
a
department chair prior to that system's demise, and had also had been a member
of
the
Academic Senate in 1999-2000. On May 4, 2000, Whinery, along with other ETA members,
addressed the governing board concerning the negative personnel atmosphere at
Evaluation-2000
In May 23, 2000, Whinery received an evaluation that contained negative comments.
Although she was not marked down in the area
of
professional relations, in fact she was given
no rating at 	in this category, the evaluation contained the following narrative:
I am very concerned that in a few cases you have chosen not to
follow established procedures for dealing with issues or concerns
regarding administration. For example, issues should not be
35

brought forward during staff meetings that have not been
addressed at the individual level. [Emphasis added.]
Whinery believes that the reference to staff meetings concerns an attempt on her part,
along with several other teachers, to ask questions at a staff meeting about student discipline.
She felt comfortable raising the issue because "student discipline" was an item on Rush's
meeting agenda. Rush sent each of the inquiring teachers a memo informing them that they
could not "bring up" an item at a staff meeting unless they discussed it with her beforehand.
Although the evaluation was prepared by Assistant Principal Kirkland-Jones (Kirkland-
Whinery was told by her that Rush directed her to insert the cited language. The reason
the "does not meet" box was not checked was because Kirkland-Jones did not personally
observe the allegedly "unprofessional" behavior.
Whinery's evaluation is not one of the allegations set forth in this case's complaint, as
it was issued on May 23, 2000, more than six months prior to the date the charge was filed,
February 27, 2001. However, evidence regarding this matter was accepted into evidence as it
impacts the question of whether or not there was a pattern or practice of union animus at Teel
during the subject period of time.
The next year Whinery was told she was going to be evaluated again. She went to Rush
to inquire as to the reason for this additional evaluation. Rush told her it was because she had
a 	not meet" rating in her previous evaluation. She disagreed and asked Rush to
check her records. Rush never re-contacted Whinery, and shortly thereafter she (Whinery) was
contacted by Assistant Principal Hermosillo with regard to her new evaluation.
Whinery asked Rush for a list of the things she could do to improve. She stated that if
she did not know what she did wrong, she could not keep from doing it again. 	She never
received any sort of a response from Rush. Eventually, her 2001-02 evaluation missed several
statutory and CBA deadlines and was never completed.
36

Letter to the Board
On May 31, 2000, Whinery sent a letter to Ed Steele, the governing board's president.
In it she expanded and personalized many of the complaints ETA had expressed at the May 4
governing board meeting. These complaints included her belief that (l) Rush retaliates against
teachers who criticize her, (2) Teel discipline is dispensed on a disparate basis, (3) the CSLA
process had broken down, and (4) there was a general decline of teacher morale at Teel. 	When
asked why she wrote this letter, Whinery said:
Because we were very frustrated at Teel with the lack of
communication and how to do things to get things accomplished.
We were going around in a circle, things would be brought to Ms.
Rush, we would take it to Dr. Price at the Price Club and then it
would come back to us. And it was our understanding that the
next level would be to go to the school board with our concerns.
On August 22, 2000, Price responded to Whinery's letter, with a copy to Rush. His
response paralleled his above described August 22 letter to "All Teel Staff." (See pp. 13
and 16.)
Rainy Day Multipurpose Room Conflict
Teel's multipurpose room is used as both a cafeteria and a gymnasium. 	Ordinarily P.E.
classes are held outside, but on rainy or very cold days they use this room. Historically, there
have been conflicts between cafeteria and custodial staff on one side and the P.E. teachers on
the other, with regard to the use of the room immediately before and after the lunch period.
On October 26, 2000, it rained at Teel, which caused the P.E. department to use the
multipurpose room for its activities. Immediately prior to lunch, the P.E. teacher in charge, not
Whinery, was having difficulty controlling the students, and they did not leave the room until
before the period was over. Later that day, each of Teel's 	teachers received
an e-mail from Hermosillo, one of Teel' s assistant principals, who had joined the staff eight
weeks previously. The e-mail read, as follows:
37

Starting tomorrow, 10/27 the only periods that the gym will be
available for P.E.on rainy or real cold days will be periods 1, 2,
& 8. Please make the necessary adjustments to your schedules.
Thank you! Michael H.
This directive represented a major change in the policy set forth the previous year by
Rush when she sent, on January 24, 2000, the following memo to all Teel P.E.teachers:
Just a reminder that the custodial staff need [sic] a minimum of
20 minutes 9
[ ] to set up for lunch inside the multipurpose room.
This means that on a regular day schedule, they will need to start
set-up at 11 :30 a.m. On minimum days, they will need the same
20 minutes. You and your students may stay in the cafeteria as
long as there is space for activity to proceed safely. However,
there may be noise and distractions due to the need for set up for
lunch .... [ Emphasis added.10]
Whinery spoke to the other P.E.teachers and they decided that she should reply to
Hermosillo on behalf of the department. They then entered into a series of reciprocal e-mail
messages, with Whinery' s first message stating:
Since no complaints were directed to us and we have ALWAYS
used the gym the period before lunch and the period after lunch
we will continue with this practice. The decision to ban us from
the gym directly affects approximately 350 students and their
education. I know the members of the school board are student
advocates and would probably be upset if they knew that these
students are not allowed to use our facilities. We have it on good
authority that Steve can set up in 9 min.and that sometimes the
students wait outside for 5 to 10 min.before being served and no
9 Even this twenty-minute period was earlier than the historic time period . Whinery
contends that prior to Rush's arrival it was accepted that a few (three or four) minutes before
the "dressing" bell was adequate. The dressing bell rings at eight minutes before the end of the
period. Therefore, the historic time for the P.E.students to leave the multipurpose room was
eleven to twelve minutes before the end of the period, instead of Rush's twenty minutes.
10 On February 17, 2000, three and one-half weeks after Rush wrote her note setting
down the "twenty minute - but stay as long as there is space to proceed safely" rule, the
cafeteria staff and Whinery had a dispute. The dispute concerned whether her class left in
sufficient time for the room to be set up for lunch. A memo was sent to Rush describing the
incident and quoting Whinery as saying "we have a problem that needs to be addressed." This
incident occurred eight months before the Hermosillo-Whinery correspondence and does little
more than confirm that there was an ongoing conflict between the cafeteria and the P.E.
teachers.
38

one has been in the gym to hinder the set up. Marj
(Capitalization in original.)
Hermosillo responded twenty-four minutes later, stating:
The decision was brought to me from Melva and I executed it.
	If
want to disregard this order thats [sic] your decision, but I
would not advise it. All it would do is make things worse. I
would hope that we can work together and find a compromise,
and hopefully a solution that we can all live with and one that
would be in the best interest
of
all involved. As
of
this writing
I'm
meeting with Melva to discuss this and other issues, such as
the bell schedule. I will need the P.E. department's input since it
seems that this program is impacted the most.
	I'm
asking you
and your colleagues in the P.E. department to please be patient
and work with me on this, and hopefully when the smoke clears
we'll
have a solution that we can all feel comfortable with.
Thank you. 	[Emphasis added.]
Whinery responded a little over an hour later, as follows:
"Work together and find a compromise". How can that happen
when we do not even know why we were banished in the first
place.?? We have no Dept. Chair to be our advocate and we
never have a Dept. Mtg. to come to a compromise. This needs to
be cleared up NOW since this is the time
of
year when it is cold
and wet. Marj 	[Capitalization in original.]
Three and one-half hours Hermosillo responded, as follows:
The P.E. Dept will have an answer tomorrow afternoon
concerning this issue. In the meantime
I'm
working on
permanent solution to this problem, please bare [sic] with me.
Thank you. 	[Emphasis added.]
Whinery and the P.E. department agreed to Hermosillo's request and did not use the
multi-purpose room the next time it rained.
A compromise was eventually worked out on November 1, 2000. With regard to the
period before lunch, the P.E. staff agreed to help the custodians set up the tables as soon as the
dressing bell rang. With regard to the period after lunch, the P.E. teachers agreed to wait until
room 	been cleaned up before letting their classes into the room.
39

Whinery met with Rush on November 6, before the reprimand was issued and assured
her that she would never be insubordinate. She also told Rush that she had been speaking for
the entire P.E. department in her communications with Hermosillo. Rush acknowledged
Whinery's November 6
th
statement about the nature
of
her communication with Hermosillo,
said that she had only Whinery's word that this was true.
Letter
of
Reprimand
Rush, on November 22, 2000, after learning
of
the above-described e-mail exchange,
issued Whinery a letter
of
reprimand. This letter inaccurately, or at least partially inaccurately,
references the previous year's solution
of
"P .E. classes leaving twenty minutes before the end
of
the period before first lunch," ignoring the additional stipulation that students could stay as
long as there was space for activity to proceed safely. Rush's letter goes on to state that on
Wednesday, October 25
...
after several reminders from administration for the need to
vacate the gym in a timely fashion before first lunch this
[previous year's] approach did not work because P.E. staff
refused to cooperate and students were not cleared from the gym
until eight minutes before lunch began. Unfortunately, this
uncooperative response has occurred frequently enough with P.E.
staff that the Teel administration issued a directive to the Physical
Education Staff on October 26, 2000 stating that the gym could
not be used during periods 3, 4, 5, 6 and 7 on rainy or extremely
cold days
....
This directive was a necessary and reasonable step,
in view
of
the need
of
the school to adequately and safely serve
its student population, and the recalcitrance
of
the physical
education teachers in working with other team members to
implement an effective solution. 	[Emphasis added.]
Whinery's written rebuttal, attached to the letter ofreprimand, in pertinent part, states:
This letter confuses me. In the letter there are many complaints
concerning the p.e. dept. I am not the p.e. dept. I feel I am being
harassed because I was the dept. chair at one time and I still
speak for the p.e. dept. from time to time when issues arise. I ask
questions, I try to find the logic in some decisions being made
hurt the educational process. 	I am then targeted and sent
"see me" notes and given a letter for my file.
40

Whinery claims that the subject e-mail was sent on behalf
of
all
of
the members
of
the
P.E. department. The District points out that the other members
of
the department were not
copied on any
of
Whinery's e-mails. When questioned on this subject, Whinery responded as
follows:
Q 	Why didn't
you have other members
of
the PE department
chime in with their support,
if
they in fact supported this
decision?
A 	Well,
if
I knew I was getting a letter
of
reprimand, I would
have had them do that.
Q 	Why
didn't
you do it afterwards in your response?
A 	There's no reason to drag other people into
my
business.
The District's attorney questioned Whinery regarding her initial response to Hermosillo,
as follows:
Q
	If
he [Hermosillo] was raising the issue
of
insubordination, why didn't you affirm that that was not the case
in your response you sent about 18 minutes later?
A 	I don't know.
Q 	Did you talk to the whole PE department about your
10:15 a.m. response, before you sent it?
A 	Yes, I consulted the PE department prior to every
response.
Q 	Okay. So, in that 18 minutes you got a hold
of
to ask them, and you guys formulated a response and you made
it?
A 	They're only a phone call away.
Between the fifth and sixth days of the formal hearing, all of Teel's P.E. teachers
prepared a document that retroactively confirmed that Whinery spoke on their behalf in her
41

e-mails with Hermosillo. As the objective
of
the formal hearing is to evaluate and analyze
actions and attitudes at the time they occurred, this letter was
of
insufficient probative value
and was not admitted into evidence.
No other members
of
the P.E. department were given reprimands.
ISSUE
1.	
Did the District, when it issued a negative evaluation
to
DeMattos, discriminate
against her because
of
her protected activities, thereby violating subdivision ( a)
of
section
3543.5?
2.	
Did the District, when it reassigned Davis from an honors- to a below- grade
class, discriminate against her because
of
her protected activities, thereby violating
subdivision (a)
of
section 3543.5?
3.	
Did the District, when it denied Davis a position as a partner-teacher,
discriminate against her because
of
her protected activities, thereby violating subdivision (a)
of
section 3543.5?
4.	
Did the District, when it issued a letter
of
reprimand for insubordination to
Whinery, discriminate against her because
of
her protected activities, thereby violating
subdivision (a)
of
section 3543.5?
5. 	Did the District, when it issued any
of
the above alleged negative personnel
actions, deny to ETA any rights guaranteed to it by the EERA, thereby violating subdivision
3543
CONCLUSIONS OF LAW
In Novato Unified School District (1982) PERB Decision No. 210 (Novato), the Board
set forth the test for retaliation or discrimination in light of the National Labor Relations Board
(NLRB) decision in Wright Line, Inc. (1980) 251 NLRB 1083 [105 LRRM 1169] enforced in
42

part (1st Cir. 1981) 662 F. 2d 899 [ 108
LRRM
2513].
	Under
Novato, unlawful motivation
must
be proven in order to find a violation.
In order to establish a
prima
facie case, the charging party must
first prove that the
subject employees engaged in protected activity.
11
Next, it must prove that the person(s) who
made the decision(s) that resulted in the harm were aware
of
such protected activity. Lastly, a
nexus
or
connection must be demonstrated between the employer's conduct and the exercise
of
a protected right, resulting in harm or
potential harm to that right.
Proving the existence
of
unlawful motivation can be difficult. PERB acknowledged
that when it stated the following in Carlsbad Unified School District (1979) PERB Decision
No. 89, at page 11:
Analysis
Unlawful motivation, purpose or intent is essentially a state
of
mind, a subjective condition generally known only to the charged
party. Direct and affirmative
proof
is not always available or
possible. However, following generally accepted legal principles
the presence
of
such unlawful motivation, purpose or intent
may
be established
by
inference from the entire record. 	[Fn. omitted.]
There is little doubt that DeMattos, Davis and Whinery engaged
in protected activities.
They all participated in various ETA activities, including serving as officers, representatives to
the Price Club, Academic Senators, spokespersons at an ETA leafleting, representatives at
meetings with Rush, speaking to the board on behalf
of
ETA issues and grievances, and/or
hosting ETA board
of
directors meetings in their classrooms. Nor is there any doubt that both
11
In relevant part, section 3543 grants public school employees:
(a)	
...
the right to form, join, and participate in the activities
of
employee organizations of their own choosing for the purpose
of
representation on all matters
of
employer-employee relations
...
.
(b) Any employee may at any time present grievances to his
..
.
employer, and have such grievances adjusted,
...
43

Rush and Price, the primary decision-makers in this case, were aware
of
such protected
activities. Therefore, the first two elements
of
the Novato test are satisfied.
The remaining element is whether a nexus exists between the administrators'
knowledge
of
these activities and the negative personnel action(s) taken.
Price
Although the evidence sets forth many incidents
of
animus towards ET A on the part
of
the administrators in this case, the most obvious concerns the Price Club. This meeting is a
creation
of
the CBA, a bilaterally created contract.	
It
obligates the District superintendent to
meet each month with
ETA's
president(s) and specified teacher representatives.
First, the Price Club is not a meeting
of
teachers with their second level supervisor; it is
in many ways an informal negotiating session to discuss "matters
of
mutual concern." These
matters concern various aspects
of
the employees' terms and conditions
of
employment.
	If
the
ETA representatives that attend these meetings do not bring items to Price in the manner that
he feels is appropriate, he has every right to tell ETA that it is not following the rules and to
take whatever action the process permits.	
It
must also be remembered that the Price Club
"rules," like the ground rules for negotiations, are to be determined bilaterally, not handed
down from management by fiat.
Even though Price can negotiate certain ground rules for Price Club meetings and
subsequently complain about any ETA failure to follow these rules, he can not negatively
impact the individual representatives' employment records for violating these rules. This is
true whether the impact takes the form
of
lowered ratings on evaluations or negative
from the board to such representatives. To put it another way, the evidence clearly shows no
instances of any employee being guilty of a "failure to communicate properly" at the Price
Club because there were no employees at the Price Club, only ETA representatives. Their
44

employment status cannot be impacted by actions taken while they are in a purely ET A
representative status.
Secondly, the governing board has a "Hear the Public" session during each
of
its
meetings. Members
of
the public can stand up and address the board on whatever subject they
feel is appropriate. Price explained that he understands that freedom
of
speech protects the
right
of
everyone, employees included, to speak their mind. After an extended discussion
during the formal hearing, Price finally concluded that, although he would like it to be
different, he was "neutral" about whether the teachers' employment status could be negatively
affected for lobbying the board on a pending grievance(s). By analogy, the employees have
the same right to be free
of
any potential negative employment status impact for any statement
made to the board with regard to any other complaint(s).
This conclusion does not require the board to enter into a discussion with, or even
comment on, the employee(s)' complaints. However, it cannot impact the speaker(s)'
employment record(s) due to such presentation.
Three separate Price responses to various ET A actions support an inference
motivation on his part.
1.
	Price's May 10, 2000, letter to the ETA executive board complained about its
"no confidence" vote in Rush.
Price was upset over ET A's May 2000 vote
of
no confidence in Rush and the
subsequent publication
of
such vote to both parents and the board. He wrote a letter to the
ETA executive board stating that the use
of
concerted activities regarding Rush was
"unprofessional, unethical and may be illegal."
Price was correct when he said the no confidence vote was a concerted activity.
a concerted activity such as a no confidence vote by a union is time-honored and
45

perfectly legal. Publishing the results
of
such an action is also legal. The evidence supports a
conclusion that the notification
of
the vote to the board was done in a restrained polite manner.
There was no evidence ETA's leafleting was done in anything other than an orderly manner.
There was no evidence that anything connected with either
of
these concerted activities was
unprofessional, unethical, disruptive, disrespectful or illegal. Price's attempt to label ETA's
activities with negative adjectives, suggests an improper attempt at intimidation for its
protected activities, and supports an inference
of
unlawful motivation on Price's part.
2.
	Price's March 17, 1999, letter to DeMattos admonishes her for (1) not giving
him an opportunity to respond before reading her comments to the
board,
and (2) owning the
"expressed pain
of
others."
In the first place, DeMattos and numerous Teel teachers have been telling him, for eight
years, that Rush's autocratic, uncommunicative, method
of
managing is intolerable: she
rewards her favorites and punishes anyone that does not adopt an obsequious manner. Price
may not agree with these teachers; he can call them malcontents and troublemakers, but he
certainly cannot, with any credibility, insist that they have not brought these issues to him time
Secondly, DeMattos has every legal right, as an ET A representative, to own the
"expressed pain
of
others." That is what unions do. Employees band together to speak with a
collective voice in an attempt to improve their terms and conditions
of
employment.
3. 	Price's July 19, 1999, response to Louck's board presentation chastises him for
including charges against an employee and includes a veiled threat of legal action.
Price told Loucks that "[ o]ther avenues of protest and complaint are clearly open to
you," and yet these other avenues consist of no more than repeated references to a policy that,
on its face, has never included employees as potential complainants. In addition, for six years
46

policy (1994-2000) included no form that would permit a teacher to know that this was the
process by which they could "protest and complain."
Rush
The record is replete with evidence supporting Rush's attitude towards ETA and its
representatives. Some examples, and this list is not exhaustive, are set forth below.
1. 	Rush refused to set up a Rush Hour, because (a) she did not want ETA speaking
for the teachers as she does not believe it represents all of them, and (b) employees can come
to her if they have a problem.
2. 	Rush chastised a teacher who admitted to a colleague that Rush had told her
about an impending student transfer. In expressing this attitude, Rush implied that the teacher
should have lied to her colleague, under the guise of some personal standard of "what is said in
the office, stays in the office."
3. 	Rush made a strongly negative comment at the October 31, 2000, meeting with
DeMattos, Corriea, and Hastings regarding ETA's typed agenda. 	She insisted that it was not
necessary to put the issues in writing, thereby suggesting that this heightened level of formality
was beyond the realm of proper behavior for employees and/or ETA.
4. 	Rush also commented at the above-referenced meeting about specified issues
being DeMattos' personal gripes. This was a meeting with ETA, not DeMattos. The issues
were ETA' s, and they should have been treated as such.
5. 	Rush's November 17, 2000, letter to DeMattos told her to go through channels
(meaning Price and Rush) before taking issues to
of Rush's attitude towards ETA and its representatives. It demonstrates a complete lack of
understanding of the rights granted to employees by the EERA.
47

6. 	Rush, on several occasions, accused various ETA representatives of "stirring up
trouble/ when they brought issues forward, insisting that the teacher(s) most directly involved
did not authorize ET A to raise the issue.
One of ET A's primary roles is to protect their CBA. If Rush is ignoring this
employment contract on any issue, for example, not paying for, or delaying payment of~
student overload monies, ET A not only has a right, but an obligation, to bring it to the
District's attention. This is true regardless of whether or not the individual teacher wants ETA
to do so.
7. 	Rush insisted that teachers should come directly to her if they have a problem,
and that, due to timeliness concerns, ETA should just refer teachers with complaints to her.
8. 	Rush's attempt to evaluate Whinery for a second consecutive year based on a
nonexistent "does not meet" rating the previous year and then refusing to explain the obvious
discrepancy.
Based on the foregoing examples, it is quite clear that Rush has a strong animus
towards ET A, in general, and to its teacher representatives, in particular. These examples also
support an inference of unlawful motivation on the part of Rush towards DeMattos, Davis,
Whinery.
This same evidence dictates a finding that any credibility conflicts between her and
these three teachers, and to Loucks, Archangel, and Corriea, are resolved against Rush and in
favor of the six teachers.
ISSUE NO, l
Did the District, when it issued a negative evaluation to DeMattos, discriminate against
her because of her protected activities, thereby violating subdivision (a) of section 3543.5?
48

The District insists that this charge is barred by section 3541.S(a)(l) which prohibits
PERB from issuing a complaint "in respect of any charge based on an alleged unfair practice
occurring more than six months prior to the filing of the charge." The statute of limitations
begins to run on the date the charging party obtains actual or constructive knowledge of the
subject conduct. 	(Fairfield-Suisun Unified School District (1985) PERB Decision No. 547;
Regents of the University of California (1990) PERB Decision No. 826-H; Regents of the
University of California (1993) PERB Decision No. 1023-H.)
Even actual knowledge must "clearly inform" the charging party of the alleged
unlawful act. DeMattos signed her evaluation on May 9, 2000. The charge was filed on
February 27, 2001. She testified at length on what her thoughts were when she received the
document. When asked if she knew why she was given the low mark in the category of
professional relations, she said, "the only reason I could possibly think of had to do with my
job as an ETA rep." Shortly thereafter she agreed with the District's counsel that she
understood this rating to be a criticism of her role as an ET A representative.
The general tenor of her testimony was that she arrived at this conclusion only because
she could not think of any other reason for the low rating. In her testimony she manifested no
certainty for this conclusion; it was just that she could think of no other explanation.
In California State Employees Association (Darzins) (1985) PERB Decision No. 546-S
and UCLA Labor Relations Division (Regents of the University of California) (1989) PERB
5-H, the Board, relying on specified NLRB cases, stated that the section
3541 	1) six-month period commences on the date the conduct constituting the unfair
practice charge is actually discovered, rather than the date of discovery of the legal
significance of that conduct. 	However, in Peralta Community College District (1998) PERB
Decision No. 1281 (Peralta CCD), the Board reversed those decisions when it stated that the
49

six-month period did not begin to run until the charging parties learned of the disparate
treatment that formed the basis of the charge.
With regard to the instant case, on May 9 DeMattos learned she was given a "does not
meet" rating in professional relations. 	She had a belief that it was somehow connected to her
role as a ET A representative, but she had no facts upon which to base this belief.
On November 17, in response to a request from DeMattos to explain the reasons for her
low mark, Rush stated it was a direct result of not following established procedures such as
taking issues to the Price Club and to ETA meetings. This memo cleared up any ambiguity
about her low mark. She no longer had to speculate about the reasons for it. It was at this time
that she first knew that Rush's low mark was a result of disparate treatment and in retaliation
for her protected activities. As in Peralta CCD, this disparate treatment is the basis of the
instant charge. Therefore, the relevant date is the date that DeMattos learned of this treatment.
Based on the foregoing, it is concluded that the six-month limitation period began to run on
November 17, not May 9, 2000. These facts dictate a conclusion that the complaint in this
case is not barred by section 3541.S(a)(l ).
When Rush's ETA animus is combined with her letter of November 17, 2000, in which
she chastised DeMattos for carrying issues to the Price Club and to ET A meetings before they
go her (Rush), there is more than adequate evidence to support a conclusion that DeMattos'
lowered rating was in retaliation for her protected activities. Therefore, it is concluded that
when Rush gave DeMattos a lowered rating. the District violated subdivision (a) of
.5.
50

ISSUE NO. 2.
Did the District, when it assigned Davis from an honors- to a below-grade class,
discriminate against her because of her protected activities, thereby violating subdivision (a) of
section 3543.5?
Prior to getting into the issue of the honors class assignment, the issue of Davis'
evaluation must be analyzed. Granted, this occurred more than six months prior to the filing of
the charge and any directive on this matter is outside of PERB's jurisdiction. However, when
evaluating the actions of the parties in the issues that are properly within PERB' s jurisdiction,
it must be noted that Davis' evaluation was fraught with the same retaliatory motivation as set
forth supra in DeMattos' evaluation. Rush stated that she lowered Davis' mark because of the
camp "no-tell" leave incident; Davis stated that Rush told her that she did not appreciate her
talking to the press at the open house leafleting. Neither of these reasons provide a valid
justification for a lowered evaluation rating. The press contact was discussed supra, and the
"no-tell" leave incident is described, in detail, infra.
With regard to the honors class assignment, Rush insisted there were two reasons that
Davis was not assigned to this class. First, there were insufficient students to populate two
sixth grade honors classes. Second, the various schedules of Davis and Rice supported her
decision to give the one remaining honors class to Rice.
There are a number of evidentiary facts that support a conclusion that Rush's reasons
are not credible. These facts are: (1) the eight separate examples supra establish that Rush has
animus towards 	representatives, such as Davis; (2) there had been both a sixth and
seventh grade honors class for at least the past five years, 1997-98 through 2001-2002, with the
exception of the 2000-2001 sixth grade; (3) the 2000-01 sixth grade class was the most
populous class that had ever entered Teel; ( 4) Davis was aware of several 2000-01 sixth
51

graders who had been recommended for honors, but had never been so designated; (5) Rice's
letter of support for Rush, as opposed to Davis' comments to the press, provided Rush with
one more opportunity to support an ally and negatively impact an opponent, (6) the decision to
take the honors class away from Davis occurred within a month of ET A's no-confidence vote,
Davis' comments to the press, and various negative statements about Rush made by ETA
representatives to the board.
Due to all of the above, it is concluded that Rush's reasons for failing to give Davis an
honors class in 2000-01 were pretextual, and therefore, they support a conclusion that this
decision was the result of unlawful motivation.
ISSUE NO. 3
Did the District, when it denied Davis a position as a partner-teacher, discriminate
against her because of her protected activities, thereby violating subdivision (a) of section
3543.5?
Rush stated that Davis was not selected as a partner for two reasons, i.e., her June 2000
letter ofreprimand and her March 2000 request for a transfer from Teel.
Davis was given a letter of reprimand for failing to notify Rush of her decision to take a
"no-tell" 	when she was at the camp.
The CBA states that an employee shall notify the District of his/her option to take a
"no-tell" day "in the same manner as in the case for employees taking sick leave." It was
understood that the proper procedure for an employee to notify the District when taking sick
leave was to call the District's substitute service (sub service) as soon ass/he was aware that a
substitute was going to be necessary. 	Once the employee notified the sub service, s/he was on
authorized leave from work until the next morning, or twenty-four hours later.
52

There is nothing in the (1) CBA, (2) District policies, (3) directives from either Price or
Rush,
or
(4) instructions to the teachers prior to 'their leaving for camp, modifying any
of
the
rules concerning the usual method
of
taking a day
of
sick leave.
	If
Davis had ( 1) taken ill
in
the middle
of
the night, (2) had someone come to the camp and take her to her family
physician in Empire, (3) called the sub service, and (4) failed to show up the next
morning
for
her camp duties, she would have fulfilled all written prerequisites for obtaining paid sick leave.
Under these circumstances she would have been legitimately absent with leave for twenty-four
hours.
Instead she (1) notified the camp director she would be gone for a few hours,
(2) obtained her own substitute, a fully tenured District teacher, and (3) was absent for only
five, rather than twenty-four hours. The evidence is clear that she had no academic duties
throughout the day, and only student supervision duties during the evening. She missed only a
part
of
the former and returned to full duty for the latter. Therefore, there was no substantive
loss to the District as a result
of
her brief absence.
Granted, she initially lied when Berry asked her about her absence. However, the CBA
states that such leave may be taken by the employee without having to specify the reason. 	She
should not have been asked for the reason for her absence, other than whether or not she took
the leave for any
of
the three prohibited reasons, which she did not.
The District has not developed and manifested a procedure for taking sick leave or a
no-tell day while at camp. Therefore, the employee is entitled to use reason and act
She did 	that. She violated no written procedures. She left no student
unsupervised.
No employee wants to tell his current supervisor thats/he is out looking for a new job.
This was especially true with Rush, given her animus towards ETA and its representatives.
53

The evidence strongly suggests that if any other employee had been sick and taken exactly the
same steps Davis took, s/he would not have been given a letter ofreprimand. 12 The evidence
supports a conclusion that the letter of reprimand was the direct result of Davis' protected
activities.
Due to this conclusion, Rush's first reason for faiiing to give Davis partner-teacher
status is without credibility. The second reason is more problematical. A partner-teacher
shepherds the new teacher in his/her activities throughout the school year. If the senior partner
is not going to be available for any substantial part of that year, the value of the partnership is
seriously diminished.
The charging party states, in its brief, that the "transfer request arose and presumably
was rejected the previous spring." Therefore, it contends that Rush's reliance on this request
was misplaced. However, there was no evidence proffered with regard to the time of this
denial and counsel's argument is not evidence.
There is little doubt that Rush did not want Davis to partner her new hirees, but there is
insufficient evidence to support a conclusion that she failed to select her for this role because
of her protected activities.
ISSUE NO. 4
Did the District, when it issued a letter of reprimand for insubordination to Whinery,
discriminate against her because of her protected activities, thereby violating subdivision
section 3543.5?
12 There was evidence of another employee being given a letter ofreprimand for
leaving camp at the same time as Davis. There were no details proffered regarding the
circumstances of this other teacher's absence. There was also a brief reference, in a Price Club
report, to this other employee being replaced by an intern teacher. The reference did not
explain whether this employee left the District or just Teel. In any case, there is insufficient
evidence in the record to draw a conclusion about any parallels between the two teachers'
camp circumstances.
54

Conclusions set forth supra with regard to (1) Rush's animus toward ETA and its
representatives, and (2) her improper use of employees' evaluations to discriminate against
for their protected activities are incorporated by reference into the analysis of this issue.
Whinery has been a District P .E. teacher for twenty-six years. During that time she,
like all other P.E. teachers in schools with a single multipurpose room, has been involved in
turf wars with the cafeteria and custodial personnel on rainy and cold days.
Rush issued a directive on January 2000 to all Teel P.E. teachers. 	It stated that the
custodial staff needed twenty minutes to set up for lunch, but the teachers could stay in the
room "as long as there is space for activity to proceed safely." Ten months later, the P.E.
teachers received a terse memo from Hermosillo, the new assistant principal, banning them
from the multipurpose room for five of the eight periods of each rainy or cold day. Whinery
checked with the other P.E. teachers and they agreed that she should let this newcomer know
that they have always used the gym during the periods surrounding the lunch and they will
continue to do so. Hermosillo wrote back stating that he was given his orders by Rush, herself,
and that they would disregard her instructions at their peril. With Hem1osillo leading the way,
the parties discussed the matter and eventually a reasonable mutually agreeable solution was
reached. 	In the interim, Whinery and the rest of the P.E. teachers did not use the room during
the periods and days prohibited in the Hermosillo/Rush initial memo.
Even in the short period of time I observed Whinery, it became clear that she has a
strong, assertive personality, without any obvious guile. She has been the elected leader of the
P.E. teachers for many years. The fact that Rush unilaterally took away her role as department
not 	her position as the natural leader of her peers. She is v~,cAH•~i
speaking for the department. I have no doubt that her peers are comfortable with her role as
their spokesperson. There is also little doubt that Rush is aware of this situation.
55

In addition, an examination ofWhinery's correspondence with Hermosillo makes it
quite clear that he was speaking to the entire departmental faculty, not just Whinery. His
memos consistently reference group actions, i.e., (1) "a solution that we can all live with,"
"one that would be in the best interest
of
all involved," (3) "we need the P.E. department's
input," (4)
"I'm
asking you and your colieagues in the P.E. department," (5) "solution that we
can all feel comfortable with," and (6) "the P.E. Dept. will have an answer tomorrow
afternoon." These Hermosillo phrases make it quite clear the he knew he was corresponding
with the entire department and not just one renegade teacher.
Seven findings
of
fact support an obvious conclusion: (1) Rush has a strong animus
towards ETA's representatives, (2) Rush improperly attempted to negatively affect Whinery's
evaluation five months earlier, (3) Whinery wrote a May 31, 2000, letter to the board president
setting forth various Rush inadequacies, (4) Whinery is acknowledged as both the historic and
leader
of
the P .E. teachers, ( 5) there was an initial outburst to a new administrator who
may not have been aware
of
the history behind the lunch period use
of
the room, followed by
dialogue and compliance with the directive, (6) Rush insisted that there was no reason to
believe that Whinery's e-mails to Hermosillo were from all
of
the teachers, citing only
Whinery's failure to copy the other P.E. teachers in support
of
this belief, despite the tenor and
phraseology
of
Hermosillo's e-mail messages, and (7) Rush used these circumstances to give
Whinery, and only Whinery, a letter
of
reprimand.
All
of
these facts lead to an irrefutable conclusion that Rush's letter
of
reprimand to
Whinery was unlawfully motivated, as it was a direct result
of
her protected activities.
56

ISSUE NO. 5
Did the District, when it issued any
of
the above alleged negative personnel actions,
deny to ET A any rights guaranteed to it
by
the EERA, thereby violating subdivision (b)
of
section 3543.5?
To establish a violation
of
subdivision (b)
of
section 3534.5, ETA must estabiish a
denial
of
its rights separate and apart from those
of
the involved employees.
ET A, like all unions and associations, has a protected right to elect leaders and
spokespersons and have them communicate with their fellow employees.
	If
one
of
these
leaders or spokespersons is subjected to discrimination, in any manner, it thwarts the
union's
ability to have its members voluntarily step into leadership roles and communicate with their
fellow employees. Therefore, discrimination against one
of
its leaders is a denial
of
the right
of
that leader's employee organization to properly represent the members
of
its bargaining
unit, a right guaranteed by the Act. Therefore, based on the foregoing, it is concluded that the
District, when it discriminated against DeMattos, Davis and Whinery, it simultaneously
violated subdivision (b)
of
section 3543.5.
SUMMARY
Based on all
of
the foregoing, it has been concluded that the District violated
subdivisions (a) and (b)
of
section 3543.5 when it discriminated against DeMattos, Davis, and
Whinery for their exercise
of
protected activities and denied ETA the right to properly
represent its members in their labor relations with the District.
REMEDY
PERB, in section 3541.S(c) is given:
...
the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action, including but not limited to the reinstatement
57

of
employees with or without back pay, as will effectuate the
policies
of
this chapter.
In order to remedy the unfair practice
of
the District and prevent it from benefiting from
its unfair labor practices, and to effectuate the purposes
of
the Act, it is appropriate to order it
to cease and desist from (1) discriminating against employees for the exercise
of
their
protected rights, and (2) denying ETA rights guaranteed to it
by
the Act.
It
is also appropriate that the District be required to post a notice incorporating the
terms
of
this Order at all District sites where notices are customarily placed for certificated
employees. This notice shall be subscribed by an authorized agent
of
the District, indicating
that it will comply with the terms therein. The notice shall not be reduced in size, defaced,
altered, or covered by any other material. Posting such a notice will provide employees with
notice the District has acted in an unlawful manner and is being required to cease and desist
from this activity.	
It
effectuates the purposes
of
the Act that employees be informed
of
the
resolution
of
the controversy and will announce the District's readiness to comply with the
ordered remedy. (See Placerville Union School District (1978) PERB Decision No. 69.) In
Pandol and Sons v. Agricultural Labor Relations Board (1979) 98 Cal. App. 3d 580,587 [159
Cal.Rptr. 584], the California District Court
of
Appeals approved a similar posting
requirement. 	(See also National Labor Relations
v.
Express Publishing Co. (1941) 312 U.S.
426 [8 LRRM 415].)
PROPOSED ORDER
Based on the foregoing findings
of
fact, conclusions
of
law and the entire record in this
case , it is found that the Empire Union School District (District) violated the Educational
Employment Relations Act (Act), Government Code section 3543.5(a) and (b). Therefore, it is
hereby ORDERED that the District, its administrators, and representatives shall:
58

A. 	CEASE AND DESIST FROM:
1.	
Discriminating against employees for the exercise
of
their protected
rights. 
2.	
Denying to the Empire Teachers Association (ET A) rights guaranteed to
it by the Act.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE PURPOSES OF THE ACT:
1.	
Delete the (1) "does not meet" rating in the area
of
professional relations
in
JoAnne DeMattos' (DeMattos) May 2000 evaluation, and (2) comment attached to such
rating. In addition, delete all ancillary references to this "does not meet" rating in the District
files. 
2.	
Insert a rating
of
"meets" expectation level in the area
of
professional
relations in DeMattos' 2000 evaluation.
3. 	Assign Kim Davis, at her request, to a sixth-grade honors class as soon
as practicable, but no later than the start
of
the 2003-2004 school year.
4. 	Discard the letter
of
reprimand issued to Marj Whinery on November 22,
2000, and delete all references to it in all District records.
5,	
Within ten ( l 0) workdays
of
service
of
a final decision in this matter,
post at all District sites where notices are customarily placed for certificated employees, copies
of
the notice attached hereto as an Appendix. This notice must be subscribed by an authorized
agent
of
the District, indicating that it will comply with the terms therein. 	Such posting shall
be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
to insure that the notice is not reduced in size, altered, defaced, or covered by any other
material.
59

6.	
Upon issuance
of
a final decision, make written notification
of
the
actions taken to comply with this Order to the Sacramento Regional Director
of
the Public
Employment Relations Board (PERB or Board) in accordance with his instructions. Continue
to report, in writing, to the regional director thereafter
as
directed. All reports to the regional
director shall be concurrently served on the charging party herein.
It is further Ordered that all other aspects
of
the charge and complaint are hereby
DISMISSED.
Pursuant to California Code
of
Regulations, title
8,
section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close
of
business
on the last day set for filing or when mailed by certified or Express United States
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
close 	business on the last day for filing together with a Facsimile Transmission Cover
60

Sheet which meets the requirements of California Code of Regulations, title 8,
section 32135(d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b ),
and 	see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Allen R':Link
Administrative Law Judge
61