Los Angeles Unified School District (PERB 2390E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SONDRA DAVIS,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5557-E
PERB Decision No. 2390
August 26, 2014
Appearances: 	QWT Consultancy by Jimmie LaVerne Thompson, Consultant, for
Sondra Davis; Office
of
the General Counsel by Richard Ettensohn, Assistant General
Counsel, for Los Angeles Unified School District.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Sondra Davis (Davis) to the proposed decision
(attached)
of
a PERB administrative law judge (ALJ). The ALJ concluded that Davis had not
established a prima facie case
of
retaliation under the Educational Employment Relations Act
(EERA)1, and that even
if
she had, the Los Angeles Unified School District (District or
LAUSD) had met its burden
of
establishing that it would have terminated her employment and
taken other adverse actions for reasons other than her protected conduct.
We have reviewed the entire record in this matter including the proposed decision, the
hearing record, Davis' exceptions and the District's response thereto. The ALJ's proposed
decision is well-reasoned, adequately supported by the record and in accordance with
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

applicable law. Accordingly, the Board adopts the ALJ's proposed decision as the decision
of
the Board itself subject to our discussion below
of
Davis' exceptions.
PROCEDURAL HISTORY
On April 29, 2011, Davis filed an unfair practice charge against the District alleging an
unspecified violation
of
EERA2 and several other state and federal laws: viz. the California
Labor and Education Codes and the Federal Americans with Disabilities Act (ADA). On
May 31, 2011, the District filed its initial position statement. On March 16, 2012, Davis filed
her first amended charge. 	On April 2, 2012, the District filed its response. On April
6,
2012,
PERB's Office
of
the General Counsel dismissed Davis' charges concerning the California
Labor and Education Codes and the Federal ADA and issued a complaint alleging that the
District violated EERA section 3543.S(a) by taking adverse employment actions against Davis
because
of
her exercise
of
EERA protected rights.
On April 18, 2012, the District filed its answer denying the allegations that Davis
engaged in conduct protected by EERA and denying that it took the adverse employment
actions against Davis because she engaged in protected conduct. The District also alleged
seven (7) affirmative defenses. Informal conferences were held on May 29, July 24 and
August 23, 2012, but the matter was not settled. On August 29, 2012, the District moved to
amend its answer to add three more affirmative defenses, which motion was ultimately
granted. A formal hearing was held on October 22-24, 2012.
On February 28, 2013, the ALJ issued his proposed decision. On April 15, 2013, Davis
filed her statement
of
exceptions. On May 3, 2013, the District filed its response to Davis'
2 Los Banos Unified School District (2007) PERB Decision No. 1935 (where charging
party fails to allege that any specific section of the Government Code has been violated, a
Board agent, upon a review of the charge, may determine under what section the charge should
be analyzed).
2

exceptions. On May 9, 2013, PERB's Appeals Assistant notified the parties that the filings
were complete and the matter was placed on the Board's docket.
FACTS
Sojourner Truth is a District school site. Sojourner Truth's first floor houses a
classroom for Central High School and its second floor houses a classroom for Tri-C
Community Day School (Tri-C): a special education program. Janet Seary (Seary) is the
principal for both Central High School and Tri-C. Davis began working as a special education
assistant for Tri-C in 2004. In July
of
2010, Hiawatha Givens (Givens) became the new
special education teacher at Tri-C. (Proposed Dec., pp. 2-3.)
. 	On August 5, 2010, Seary directed Davis to watch the front door
of
Sojourner Truth
every morning from 7:45 a.m. to 8:30 a.m. to insure that only staff, students and parents
entered the building. Davis objected to the assignment on the grounds that shefelt it placed
her life in danger. 	Seary then told Davis she could perform the assignment from behind the
locked door. 	(Proposed Dec., p. 4.)
Early in the 2010-2011 school year, several issues arose between Davis and Givens.
Givens testified that Davis refused to follow instructions, was argumentative with him,
undermined his authority in the classroom and that Davis interacted poorly with the students.
The differences between Davis and Givens became the subject
of
several meetings with
Assistant Principal Janine Antoine (Antoine) during the 2010-2011 school year. During the
Fall semester, Givens began documenting his interactions with Davis via memoranda, which
he sent to Antoine. In November
of
2010, Davis scheduled a parent conference for one
of
Givens' students without notifying Givens who was subsequently unable to be away from his
classroom to meet with the parent. 	(Proposed Dec., pp. 4-6.)
3

Concurrently, several incidents occurred between Davis and Tri-C students. On
November 9, 2010, Davis confronted a student who yelled profanities at Davis and threatened
to slap her after she directed the student to pick up a piece
of
paper he had dropped. On
December 6, 2010, two students confronted Davis, cursed at her, threatened to assault her and,
according to Davis, attempted to set her on fire by spraying flammable liquid at her feet while
attempting to light the liquid. (Proposed Dec., pp. 6-7.)
On December 8, 2010, Seary called Davis and Antoine into a meeting to discuss the
numerous reports that Givens had sent Antoine about Davis's failure to follow his directions
and Davis's work performance. 	Seary warned Davis that failure to correct her behavior could
result in discipline. Also on December 8, 2010, Seary received a memorandum from Antoine
regarding the November 9, 2010, incident between Davis and the student and an e-mail from
District Special Education Coordinator Veronica Njoku (Njoku) regarding an incident where
Davis had scheduled a conference between a parent and Givens, but had failed to notify
Givens. (Proposed Dec., pp. 7-8.)
On or about January 20, 2011, Davis was injured at work when a chair she was sitting
on broke. Davis' injury made it painful for her to stand for long periods
of
time or to walk up
and down stairs. Upon the advice
of
her union, the Service Employees International Union,
Local 99 (SEIU), Davis subsequently saw a doctor who placed limitations on her ability to
walk or climb stairs. Sometime on or after February 9, 2011, the District considered Davis
completely disabled because the District was unable to accommodate Davis' work place
restrictions. (Proposed Dec., pp. 8-9.)
On or about March 3, 2011, Seary sent Davis a "Notice of Unsatisfactory Service" with
a recommendation for dismissal. On March 30, 2011, Davis filed a response disputing the
allegations in the notice and requesting an administrative review meeting. On May 11, 2011,
4

Davis was dismissed from employment. On May 23, 2011, Davis appealed her dismissal to the
District Personnel Commission. On April
7,
2012, a hearing officer recommended that Davis'
dismissal be rescinded and that she be placed on suspension without pay. (Proposed Dec., p. 9,
Respondent's Exhibits 22 and 27.)
PROPOSED DECISION
The ALJ applied PERB's four-part test to determine whether an employer has
discriminated or retaliated against an employee in violation
of
EERA section 3543.S(a):
(1) the employee exercised rights protected under EERA; (2) the employer had knowledge
of
the exercise
of
those rights; (3) the employer took adverse action against the employee; and
(4) the employer took the action because
of
the exercise
of
those rights. (Novato Unified
School District (1982) PERB Decision No. 210 (Novato).)
The ALJ determined that Davis exercised rights protected under EERA when she
expressed safety concerns on August 5, 2010, over her assignment to monitor the front door
of
Sojourner Truth; when Davis reported to the District Police Department a threat that a student
had made to her on December 6, 2010; and when Davis sought
SETIJ
assistance on February 7,
2011, regarding the injury she suffered when her chair broke. Additionally, the ALJ
determined that two more
of
Davis' activities were protected.3
3 Though not alleged
in
the PERB complaint, Davis' report
of
a student threat on
November 9, 2010, and attendance by a representative
of
Davis' union at the December 8, ·
2010, meeting with Seary were also deemed protected conduct by the ALJ under Lake Elsinore
Unified School District (2012) PERB Decision No. 2241 (analogizing unalleged protected
activities as further bases for a retaliation claim to unalleged violations, the Board has
considered the following factors: 	(1) adequate notice and opportunity to defend has been
provided the respondent; (2) the acts are intimately related to the subject matter of the
complaint and are part of the same course of conduct; (3) the unalleged issue has been fully
litigated; and ( 4) the parties have had an opportunity to examine and cross-examine on the
issue).
In addition, the Board has considered events that fall outside of the statutory limitations
period, but that shed light on alleged violations as relevant background information.
(San Diego Unified School District (1991) PERB Decision No. 885.)
5

Regarding employer knowledge, the ALJ noted that Seary and Antoine both testified
that they were aware
of
Davis' safety complaints and
of
the presence
of
a union representative
at the December 8, 2010 meeting with Davis. However, the ALJ determined that District
administrators were not aware that Davis had requested assistance from SEIU regarding her
injuries from the broken chair.
The ALJ determined that the District had taken three adverse actions against Davis:
(1) the December 8, 2010, meeting wherein Seary raised the possibility that Davis could be
disciplined; (2) the March 3, 2011, notice
of
unsatisfactory service; and (3) Davis' dismissal
from employment.
Regarding nexus, the ALJ determined that the adverse actions occurred in temporal
proximity to Davis' protected activities, but he found no other nexus factors. 	The ALJ
considered, and found the evidence insufficient to establish, that the District: (1) conducted an
inadequate investigation
of
Given's complaints about Davis' work performance; (2) failed to
follow its own procedures in giving Davis notice on December 8, 2010, that failure to improve
her work performance could result in discipline; (3) demonstrated animus toward Davis by
assigning her to work outside
of
her classification;' (4) failed to inform her that her conduct
could result in discipline; and (5) terminated Davis to avoid suspending students, which would
impact the District's funding for Sojourner Truth. In addition, as part
of
the nexus analysis,
the ALJ rejected Davis' assertion that the District's witnesses were not credible.
The ALJ determined that Davis had failed to meet her burden of proving a nexus
between her protected activities and the District's adverse actions. The ALJ concluded,
therefore, that Davis had failed to establish a prima facie case of retaliation. Additionally, the
ALJ determined that the District established its affirmative defense that retaliation was not the
motive for the District's actions taken against Davis. The ALJ found that Davis had a history
6

of
inappropriate confrontations with both Givens and students and that the District was
dissatisfied with Davis' work performance since at least August
of
2010. The ALJ therefore
dismissed Davis' charge
..
EXCEPTIONS4
Davis' first exception regards Seary's directive that Davis monitor the front door
of
Sojourner Truth from 7:45 a.m. to 8:30 a.m. every morning. Davis argues that her work
performance should not be evaluated on the basis
of
security related duties that are outside her
job classification.
Davis' second exception refers to an event that occurred on November 9, 2010, where a
student threatened to slap Davis and, subsequently, Davis entered into a confrontation with the
same student. This incident was the subject
of
a memorandum sent by Antoine to Seary,
almost one month later, on December 8, 2010, the same day Davis met with Seary and Antoine
to discuss her work performance issues. Davis maintains that the timing
of
this memorandum
demonstrates that the District was purposefully gathering information to justify disciplining
her. Davis also asserts that Antoine's failure to report the incident to the District police
violated the District's policy regarding such incidents and that Antoine's conduct was
unlawfully motivated by the District's desire
of
minimizing student absences through
suspensions that would affect the District's program funding.
Davis' third exception refers to a December 6, 2010, incident where she claims two
students attempted to set her on fire. According to Davis, this incident is further evidence that
the District covered-up and did not report bad student behavior in violation
of
District policy.
Davis also maintains that she engaged in protected activity and self-representation by reporting
Davis' exceptions are neither numbered nor clearly identified as individual
exceptions. We number and parse them into discrete segments for the sake of our discussion.
7

the November 9 and December 6, 2010, incidents to law enforcement and she did so "with the
Districts [sic] involvement and full-knowledge." (Charging Party's Exceptions,
p.
8.)
In her fourth exception, Davis objects to the ALJ's finding that:
Seary informed Davis that failure to correct her behavior could
lead to discipline. Davis asked for written proof
of
the
accusations made against her. At some point, LAUSD provided
her with a copy
of
the parent's written complaint. No discipline
was issued at the December 8, 2010 meeting.
(Proposed Dec., p. 8.) Davis denies that she received adequate notice at the December 8, 2010,
meeting with Seary and Antoine that discipline was imminent or that the issues discussed at the
meeting were to be used to level charges against her. Davis also denies receiving any written
allegations from Seary.
In her fifth exception, Davis claims that the testimony
of
one
of
her witnesses
corroborates her testimony regarding her fall from a broken chair. Davis does not cite to any
specific point in the transcript
of
hearing or the proposed decision.
In her sixth exception, Davis claims that the findings
of
the District personnel
commission hearing officer support her contention that she never received any warning from
Seary or Antoine that her failure to improve her work performance would result in discipline
and that Seary and Antoine never provided Davis with expectations for her performance
improvement.
Davis also includes in her exceptions a section entitled "Additional Offer
of Proof'
wherein Davis alleges that: (1) Seary provided inconsistent testimony; (2) there was no record
of
prior discipline of Davis; and (3) the ALJ failed to mention the testimony of one
of
Davis'
witnesses which she claims corroborated Davis' own testimony regarding her workplace
injury.
8

In its opposition to Davis' exceptions, the District maintains that Davis' appeal should
be dismissed based on her failure to comply with PERB Regulation 32300. 5 Alternatively, the
District urges the Board to dismiss Davis' appeal, because she completely failed to address or
refute the ALJ' s nexus analysis.
DISCUSSION
Davis fails clearly to state specific issues
of
procedure, fact, law or rationale to which
each exception is taken (ptate
of
California (Department
of
Youth Authority) (1995) PERB
Decision No. 1080-S) and, except for one instance, fails to identify the page or part
of
the
decision to which each exception is taken. (California State Employees Association
(O'Connell) (1989) PERB Decision No. 726-H.) Davis failed to comply with the technical
5 PERB Regulations are codified at California Code
of
Regulations, title 8,
section 31001 et seq. PERB Regulation 32300 provides:
(a) A party may file with the Board itself an original and five
copies
of
a statement
of
exceptions to a Board agent's proposed
decision issued pursuant to Section 32215, and supporting brief,
within 20 days following the date
of
service
of
the decision or as
provided in section 32310. The statement
of
exceptions and
briefs shall be filed with the Board itself in the headquarters
office
....
The statement
of
exceptions or brief shall:
(1) State the specific issues
of
procedure, fact, law or rationale to
which each exception is taken;
(2) Identify the page or part
of
the decision to which each
exception is taken;
(3) Designate by page citation or exhibit number the portions
of
the record,
if
any, relied upon for each exception;
( 4) State the grounds for each exception.
(b) Reference shall be made in the statement of exceptions only
to matters contained in the record of the case.
(c) An exception not specifically urged shall be waived.
9

requirements
of
PERB Regulation 32300. While that may be a sufficient basis to dismiss
Davis' appeal, Davis provides at least minimally adequate notice
of
the issues she seeks to
raise on appeal. Therefore, we consider Davis' exceptions.
Since the ALJ determined that Davis satisfied the first three elements
of
the
Novato test, we need not consider any exception relating to additional protected conduct,
employer knowledge or adverse actions. The relevant considerations are whether Davis'
exceptions refute the ALJ' s determination that there was no nexus between her protected
activity and the District's adverse actions; or whether Davis' exceptions overcome the
District's affirmative defense that it had a non-discriminatory reason for its actions and acted
because
of
its non-discriminatory reason and not because
of
Davis' protected activity.
(Palo Verde Unified School District (2013) PERB Decision No. 2337.)
The substance
of
Davis' first exception was considered and rejected by the ALJ who
found.unpersuasive Davis' assertion that she was assigned work out
of
her classification
because
of
her protected activities. The ALJ determined that:
The job description for Davis's position lists [the] assisting
teacher in a variety
of
capacities such as implementing lessons,
directing activities, maintaining records, and supervising
students. This is generally consistent with the clerical and
student supervision duties Givens assigned to her. Furthermore,
the job duties assigned to Davis [appear] to have been borne more
out
of
necessity than animus for her protected activity.
(Proposed Dec., p. 16.) While not specifically mentioning the door-monitoring assignment, the
ALJ found that the small staff at Sojourner Truth typically took on tasks that fell outside the
strict parameters
of
each
of
their job descriptions out
of
necessity, and not out
of
animus for
protected activities. Davis does not contend that Seary assigned her to monitor the door at
Sojourner Truth out of animosity for her protected conduct, nor was there any indication that
Davis engaged in protected conduct prior to expressing concern regarding the August 8, 2010,

door monitoring assignment. Nor did the charges brought by the District against Davis
mention any interaction between Davis and Seary. The dismissal charges solely refer to
alleged job performance issues and alleged insubordination that arose between Davis and
Givens. The door monitoring assignment was not described
in
the dismissal charges as a basis
for finding Davis' job performance deficient. Therefore, we conclude that this exception lacks
merit.
Davis' second exception makes two arguments.6 First, Davis' exception implies that
Antoine was reluctant to impose student discipline in accordance with the District's discipline
policy in order to minimize absences from student suspensions and therefore avoid a loss
of
program funding. 	This argument was specifically rejected by the ALJ who determined that
there was no evidence submitted to support this assertion. Moreover, as the ALJ stated:
Even
if
there was such evidence, it would only suggest that
LAUSD's motive for dismissal was something other than
retaliation for EERA-protected activity, something PERB lacks
jurisdiction to address.
(Proposed Dec., p. 19.) We agree with the ALJ that there was no evidence submitted that the
District disciplined Davis to avoid suspending Sojourner Truth students. Moreover, we agree
that
if
such evidence existed it would not have provided a nexus between the District's adverse
actions and any EERA-protected conduct by Davis.
In addition, Davis' second exception contends that the timing
of
Antoine's December 8,
2010, memorandum regarding the November 9, 2010, incident is suspicious. According to
Davis, "(r)espondent purposely gathered information against Davis in this incident to justify its
intent to discipline her." (Charging Party's Exceptions, p. 3.) However, Davis has not shown
6 The District urges us to dismiss Davis' second exception because, by Davis' own
admission, the incident referred to was not mentioned in the PERB complaint. However, the
exception involves two exhibits which were introduced at hearing and were the subject of
direct and cross examination. Therefore, the incident is properly before us.
11

that Antoine's memorandum represented a departure from standard District policy or that it
involved disparate treatment. The memorandum was introduced at hearing and Davis took the
opportunity to cross-examine Antoine about the memorandum. Yet no testimony was elicited
regarding the timing
of
the memorandum or standard District procedures. On December
8,
2010, an e-mail was also sent, from Njoku to Antoine regarding a parent-teacher conference
that Davis had scheduled in November
of
2010 without notifying Givens. It is likely that both
the Antoine memorandum and the Njoku e-mail were prepared to document instances
of
Davis' improper behavior and/or poor work performance for the December 8, 2010 meeting.
Absent any evidence
of
retaliatory purpose or deviation from District policy, the timing
of
the
memorandum and e-mail is unremarkable. We conclude that Davis' second exception lacks
merit.
Davis' third exception seeks to again introduce evidence for her assertion that the
District did not report student misconduct to avoid the loss
of
funding. As we stated in our
discussion
of
Davis' second exception, no credible evidence was submitted that the District
disciplined Davis to avoid suspending students, and even
if
such evidence had been submitted
it would tend to prove that the District was motivated by reasons other than Davis' protected
conduct.
In addition, the ALJ found that Davis was not a credible witness and rejected her
version
of
the events regarding the incident where two students allegedly attempted to set her
on fire. It is well-established that the Board will defer to ALJ credibility determinations absent
evidence to support overturning such determinations. (County
of
Santa Clara (2012) PERB
Decision No. 2267-M.) We find no basis to overturn the ALJ's determination regarding Davis'
credibility or his finding regarding the December 6, 2010, fire-lighting incident. We conclude
that Davis' third exception lacks merit.
12

Davis' fourth exception challenges the ALJ's determination that Davis was warned at
the December 8, 2010, meeting that her conduct could result in discipline. On April
7,
2012, a
hearing officer recommended that the District's personnel commission rescind Davis'
dismissal and, instead, impose a ninety (90)-day suspension without pay. 	The basis for the
hearing officer's recommendation was the conclusion that the District had not met its burden
of
proving that "the consequences
of
disobedience were known to the employee."
(Respondent's Exh. 28, pp. 31-32, 34-35 [enumerating conditions for reversing penalties for
insubordination and District's failure to meet burden
of
proof].)
However, the relevant inquiry in a nexus analysis is whether the District deviated from
an established policy or treated the charging party differently from other similarly situated
employees. Davis has failed to establish what the District's policy was regarding notice to
employees at pre-disciplinary meetings and has failed to establish that she was treated
differently from other employees at pre-disciplinary meetings. Therefore, we conclude that
Davis' fourth exception lacks merit.
Davis' fifth exception is that the testimony
of
one
of
her witnesses corroborates her
version
of
how she injured herself when she fell off a chair. It is unclear what the purpose
of
this exception is. Davis mentions that Givens was present in the room when she injured
herself. 	Given that Givens testified that he did not know the details
of
how Davis injured
herself, the exception may be intended to discredit Givens. We do not conclude that
corroboration
of
Davis' version
of
how she injured herself contradicts Givens' testimony that
he was unaware
of
the details
of
the injury or otherwise impugns Givens' testimony.
Regardless, even
if
Davis' account
of
her injuries from the broken chair is accepted, it is
unclear how this supports her allegation that the District retaliated against her for exercising
BERA-protected rights. We conclude that Davis' fifth exception lacks merit.
13

Davis' sixth exception again raises the District personnel commission hearing officer's
finding in the dismissal hearing that she was never warned that her conduct could lead to
discipline and that she was never given expectations to improve her performance. Again, we
conclude that there was sufficient evidence for the ALJ to determine that Davis knew that
failure to correct her performance would lead to discipline. In addition to the December 8,
2010, meeting, Seary testified that a "pre-disciplinary" meeting was held with Davis and a
union representative on December 17, 2010. Seary testified that "pre-disciplinary'' meetings
were held to insure that the employee understood what the concerns are about his or her
performance and to let the employee know the District was contemplating some sort
of
discipline. We conclude that Davis' sixth exception lacks merit.
Lastly, we briefly address a section Davis entitled "Additional Offer
of
Proof." Davis
maintains that Seary's record testimony was inconsistent, that Davis had never been
disciplined prior to the 2010-2011 school year and that the ALJ did not address the testimony
of
one
of
Davis' witnesses. We do not find the alleged discrepancies in Seary's testimony to
be significant. None
of
the alleged discrepancies suggests that there is a nexus between the
District's adverse actions and Davis' protected activity. 	One "discrepancy" involves a matter
that occurred long before Davis engaged in protected activity. 	Another "discrepancy" provides
support for Davis' version
of
her workplace injury which, as we have noted above, is not
relevant to the nexus inquiry.
Davis also urges us to construe the District's "Notice
of
Unsatisfactory Service" as
evidence
of
"treachery." The March 3, 2011, notice indicates that it is being mailed to Davis
because she had been absent from work since February 9, 2011. We do not infer from this that
the District's dismissal was due to Davis' absence, but infer instead merely that the notice was
mailed, instead of served personally, because Davis was not on campus. We find the bare fact
14

that Davis had not been disciplined prior to the 2010-2011 school year relevant, but not
sufficiently persuasive to conclude that the District's actions during the 2010-2011 school year
were motivated by animus. For these reasons we conclude that Davis' "Offer
of
Proof'
also
lacks merit.
CONCLUSION
Based upon the foregoing findings
of
fact and conclusions
of
law, and the entire record
in the case, we conclude that the Los Angeles Unified School District did not violate BERA
when it imposed discipline and sought to dismiss Davis during the 2010-2011 school year.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5557-E is
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chair Martinez and Member Banks joined in this Decision.
15

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SONDRA DAVIS,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5557-E
PROPOSED DECISION
(February 28, 2013)
Appearances: Jimmie Laverne Thompson, Consultant, for Sondra Davis; Richard Ettensohn,
Assistant General Counsel, for Los Angeles Unified School District.
Before Eric J. Cu, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a former public school employee alleges that a public school employer
violated the Educational Employment Relations Act (EERA)1 by terminating her employment
and taking other adverse employment actions against her in retaliation for engaging in
protected activity. The employer denies any violation.
Sondra Davis filed the instant unfair practice charge with the Public Employment
Relations Board (PERB or Board) against the Los Angeles Unified School District (District)
on April 29, 2011, alleging multiple violations
of
BERA and the Americans with Disabilities
Act
of
1990 (ADA) (42 U.S.C. § 12101 et seq.). On April 6, 2012, the PERB Office .of the
General Counsel dismissed all claims that LAU SD violated the ADA for lack of jurisdiction
over those laws. That same day, the General Counsel's Office issued a complaint alleging that
LAUSD called Davis into an investigatory meeting, issued her a notice of unsatisfactory
service and terminated her employment in retaliation for reporting safety concerns at her
workplace and requesting union assistance. 	On April 18, 2012, LAUSD filed an answer to the
1 BERA is codified at Government Code section 3540 et seq.

PERB complaint denying the substantive allegations and asserting multiple affirmative
defenses.
Informal settlement conferences were held on May 29, July 24, and August 23, 2012,
but the matter was not settled. Thereafter, the case was set for formal hearing on
October 22-24, 2012. On August 29, 2012, LAUSD filed a motion to amend its answer to add
additional affirmative defenses. The formal hearing was held on October 22-24, 2012 as
scheduled. On the first day
of
hearing, LAUSD's motion was granted over Davis's objection.
On January 18, 2013, LA USD filed its closing brief. Davis filed her closing brief on
January 28, 2013. At that point, the record was closed and the matter was submitted for
decision.
FINDINGS
OFF
ACT
The Parties
LAUSD is a public school employer within the meaning
ofEERA
section 3540.l(k).
Prior to her termination on May 11, 2011, Davis was a public school employee
of
LAUSD
within the meaning ofEERA section 3540.lG). At the time
of
her employment, Davis was
part
of
a bargaining unit whose interests were represented by Service Employees International
Union, Local 99 (Local 99).
The Sojourner Truth School Site
The Sojourner Truth school site is part
of
LAU SD, The site is physically composed
of
a two-story house and an adjacent driveway in a Los Angeles neighborhood. Apparently,
LAU SD leases the property from a private land-owner. The first story of the house is a
classroom for Central High School, which is a continuation school. At all times relevant to
this case, Kevin Stricke was the teacher assigned to this classroom. 	On the second floor, there
is a classroom .for the Tri-C Community Day School (Tri-C CDS), which is a school for special
2

education students. The outside area is used for a nutrition period, lunch, recess, and physical
education classes.
Central High School and Tri-C CDS share a central administrative office separate from
the Sojourner Truth campus. At all times relevant to this case Janet Seary was the principal
of
both Central High School and Tri-C CDS. Janine Antoine was an assistant principal who
worked for Seary and oversaw the Sojourner Truth campus.
Most Tri-C CDS students have mild to moderate special education needs. Oftentimes,
students at Tri-C CDS are considered "at risk," meaning there was something in their
background, e.g., abuse or criminal history, making it di_fficult for them to integrate into a more
traditional classroom environment. Students were variously described as "violent" or "hyper"
by different witnesses. 	Students commonly used profanity, which is grounds for discipline
under LAUSD policy. At any given time, there were between 12 and
15
students assigned to
the Tri-C CDS Sojourner Truth class, mostly boys.
Davis's Employment at Tri-C CDS
Davis began working as a special education assistant for Tri-C CDS in 2004. Her
primary job was to assist the special education teacher. Davis described her job as "doing
whatever the teacher and the principal asked me to do." At some point, Davis was assigned to
the Sojourner Truth campus. Davis initially worked with special education teacher Dr. Flynn
(first name not provided), with whom she had a good working relationship. When Dr. Flynn,
left Sojourner Truth, in or around June 2010, Davis requested to transfer with him to his next
assignment. Davis never received a response to her request.
In July 2010, special education teacher Hiawatha Givens was assigned to replace
Dr. Flynn at Sojourner Truth for the 2010-2011 school year. During that year, Davis, Givens,
and Stricke were the only LAUSD personnel working on site daily.
3

Davis took personal leave from late July until August 4, 2010. While Davis was away,
Givens decided to use a spare room in the upstairs area as a computer lab. Up until that point,
Davis had used that room as an office and kept some
of
her personal belongings there. Givens
boxed up Davis's belongings, breaking a picture frame in the process. At some point, some
food Davis kept in the room went missing. In addition, while Davis was away, some
unauthorized people went onto the Sojourner Truth campus.
The August 5, 2010 Directive
Principal Seary called Davis into a meeting on August 5, 2010. Davis brought a
Local 99 representative to the meeting, but Seary was not there. The Local 99 representative
left a note for Seary to contact him. Later that day, Seary contacted Davis by telephone. It is
unclear whether the Local 99 representative was part
of
the conversation. Seary explained
about the unauthorized visitors during her absence and directed Davis to watch the front door
from 7:45 a.m. to 8:30 a.m. each day to make sure only students, staff, and parents enter the
campus. Davis complained this directive "was putting my life in danger" due to the location
of
the campus. The Sojourner Truth campus has no security personnel. Seary replied that Davis
could perform this job duty from inside the locked door. According to Seary, Davis was
satisfied with this modification to the order. Davis testified that she was still concerned for her
safety because
of
the condition
of
the door, but it is unclear whether she expressed those
concerns to anyone at LAUSD
..
Davis's Working Relationship With Givens
Davis and Givens did not have a good working relationship. Givens testified that he
was concerned about Davis's work performance "immediately," as early as the first week
of
the 2010-2011 school year. According to Givens, Davis refused to follow his instructions and
was argumentative with Givens in front of his class when he assigned her work. Givens felt
that this conduct undermined his authority in front of a class that was already difficult to
4

manage. 	Givens also observed that Davis shouted at students and did not interact with them
effectively. Givens felt this only provoked the students to misbehave more often. Davis, on
the other hand, felt that Givens was rude to her. According to documentary evidence, Davis
felt that Givens "barked orders" at her. Davis also did not feel that Givens supported her when
students confronted her.
In early August 2010, Antoine set up the first
of
what would become multiple meetings
with Givens and Davis.2 The three discussed ways that they could resolve their differences as
well as Davis's schedule and
job
duties. 	Givens apologized to Davis during the meeting.
After the meeting, Givens still felt that Davis was not responsive to his directives. For
example, Givens instructed Davis not to plug a portable room heater into a particular power
outlet because he thought it would cause problems due to the old wiring in the building. Davis
did so anyway and it caused a power outage.
At Antoine's suggestion, starting on August 24, 2010 Givens gave Davis a list
of
"daily assignments." On Givens's initial list
of
duties, he requested that Davis (1) clear out the
boxes
of
her personal belongings that were in the room she previously used as an office;
(2) inventory the supplies; (3) inventory the First Aid kit; and (4) count the number
of
student
absences for the periodic progress reports. Davis never completed the first three tasks on the
list. 	In one instance, Davis crumpled Givens's written instructions up in front
of
the class.
Givens also began documenting his interactions with Davis and sending them to Antoine. This
was a common practice among teachers that had concerns or problems with a teacher's aide.
In or around August 27,2010, Davis left the Sojourner Truth campus without informing
Givens or anyone in the administrative office. Davis later explained that she went to the
2 The precise date of the meeting was unclear. 	Some accounts list the meeting date as
August 5, 2010.
5

LAUSD office to get supplies. Antoine reminded Davis that she needs permission from either
a teacher or an administrator before leaving her assigned school site.
On November
9,
2010, Davis directed a student to pick up a piece
of
paper he dropped
on the floor but the student began yelling at Davis and using profanity. The student then
threatened to slap Davis
..
Antoine was visiting the Sojourner Truth campus that day and
observed at least some
of
the incident. Antoine recalls Davis loudly stating to the student
"well do it then, go ahead and hit me, do it!" From Davis's perspective, Givens and Antoine
"just let the student rant and rave" until some point, Antoine directed Davis to go upstairs.
Davis felt threatened and called the LAUSD campus police.
On November 19, 2010, special education coordinator Veronica Njoku arrived at
Sojourner Truth for a scheduled parent conference for one
of
Givens's students. Davis
scheduled the meeting and notified Njoku. When Njoku arrived, Givens was unaware
of
the
conference and had not prepared to be away from his class to meet with the parent. 	When
asked about the incident, Davis said she thought Givens had overheard her when she was
scheduling the conference.· On a separate occasion around that time, Njoku overheard
Davis and a student yelling at each other from another room. 	She recalled Davis shouting
"Yo mama!" to the student.
December 6, 2010
On December 6, 2010, Givens directed Davis to go downstairs and locate some students
who had not yet returned from lunch. When Davis went downstairs, she was confronted by
two students, who cursed at her loudly. One
of
the two students was the same person that
Antoine and Njoku had observed Davis yelling at previously. That student said he would "beat
[Davis's] big black B." The students were later suspended for their actions. The other events
that occurred that day are in dispute.
6

According to Davis, one
of
the two students sprayed flammable liquid at her feet while
the other held a lit lighter to the liquid. The liquid did not ignite. Davis called the LAUSD
campus police, despite being told by Stricke not to. LAUSD police officer Alex Bello
responded to the call. Davis asked Officer Bello to speak with the student who threatened her,
but he had been sent home by Givens. A referral for discipline was written up for the student
and Davis faxed it to the central office. Antoine would later state that the student was
suspended until a parent conference was completed.
No other witness would confirm the alleged fire incident. Officer Bello did not recall
. responding to a call on December
6,
2010 and his review
of
his police dispatch records
indicated that no call for assistance was placed that day. In addition, Officer Bello did not
recall ever responding to a call at the Sojourner Truth campus about any students' attempt to
set an individual on fire. 	Davis offered no explanation for why she did not ask Officer Bello to
speak with the other student involved in the alleged fire incident. At first, Davis said she
completed the referral form about the incident, but she later said Stricke filled out the form.
The referral form stated that the students had threated Davis, but it made no mention
of
an
attempt to set Davis on fire, or the other student allegedly involved.
December
8,
2010
On December 8, 2010, Seary called Davis into a meeting. Antoine was also present, as
was a Local 99 representative on Davis's behalf. At the meeting, Seary and Antoine discussed
the multiple memoranda that Givens had been sending to them about Davis's failure to follow
his directives and other concerns he had about her work. 	They also discussed their belief that
Davis's conduct provoked students to further misbehave. Although not entirely clear, it is also
possible that they discussed a parent's complaint that Davis called her repeatedly about the
7

student's behavior at school.3 Seary informed Davis that failure to correct her behavior could
lead to discipline. Davis asked for written proof
of
the accusations made against her. At some
point, LAUSD provided her with a copy
of
the parent's written complaint. No discipline was
issued at the December 8, 2010 meeting.
According to Davis, the group also discussed whether Davis had a role in provoking the
students over the fire incident. However, no other witness recalled that discussion. In
addition, none
of
the documentary evidence about the meeting, including the Local 99
representative's notes and Seary' s written summary, mentioned such a discussion.
The Broken Chair Incident
On or around January 20, 2011, Davis was sitting on a wheeled chair in the classroom
when it broke causing her to fall on her knee. 	At some point later, Davis's injury made it very
painful for her to stand for long periods
of
time or to walk up or down stairs. On February 7,
2011, Givens directed Davis to go down the stairs multiple times for different job duties. After
a while, Davis complained that she was unable to go down the stairs because
of
pain in her
knee.	
It
is unclear whether, up to that point, Davis ever told Givens about the extent
of
her
injury.· Davis then contacted Local .99, who instructed her to go to the doctor.
It
is unclear
whether Davis told anyone about her conversation
~th
Local 99. Davis visited the doctor that
day, and limitations were placed on Davis's ability to walk and climb stairs.4
3 It is possible that this. part
of
the discussion occurred at a later meeting about Davis's
work performance on or around December 17, 2010.
4 Davis was very argumentative when testifying about this subject on cross-
examination. When asked why she waited until February 7, 2011, to see the doctor, Davis first
claimed that the February 7, 2011, visit was for headaches, even though the doctor's work
restrictions bore no clear relationship to headache symptoms. Davis later recanted that
testimony and suggested that she saw the doctor prior to February 7, 2011, for her knee injury
but could not remember when. This testimony was suspicious because it was inconsistent with
her testimony on direct examination. In addition, on direct examination, Davis was readily
able to recall specific details about the incidents of January and February 2011. Davis's claim
that she would forget about an important detail as her first doctor's visit lacks credibility.
8

When Davis returned to work on February
9,
2011, she informed Seary
of
her
workplace restrictions. 	Seary contacted LAUSD's accommodations office who said they
would not be able to accommodate Davis's work place restrictions. 	Seary told Davis that the
LAUSD accommodations office was unable to accommodate her injury and that Davis was
therefore considered completely disabled.
The Notice
of
Unsatisfactory Service and Termination From Employment
On or around March 3, 2011, Seary sent Davis a "Notice
of
Unsatisfactory Service with
a recommendation for dismissal." The charges levied against Davis were failing to comply
with Givens's directives and being non-responsive, contradictory, disrespectful or
argumentative with Givens in front
of
students.
The notice provided multiple examples
of
this misconduct, including several
of
the
incidents described above, as well as other events not independently described during the
hearing. 	On March 30, 2011, Davis filed a statement disputing the allegations in the notice.
LAUSD dismissed Davis from employment, effective May 11, 2011. Davis filed an appeal
of
the dismissal to the LAUSD Personnel Commission.
The Personnel Commission Hearing
No witness testified in detail about the proceedings before the Personnel Commission.
According to documentary evidence, a disciplinary hearing was held and a hearing officer
issued a decision on April 7, 2012, recommending rescission
of
the dismissal and imposition
of
a suspension without pay. 	Documentary evidence also suggests that the Personnel
Commission decided to adopt the hearing officer's conclusions on March 23, 2012, two weeks
before the hearing officer's decision issued. 5
5 The content of this documentary evidence is hearsay and is therefore "not sufficient in
itself to support a finding" according to PERB Regulation 32176. (PERB Regulations are
codified at Cal. Code Regs., tit. 8, § 31001 et seq.) The record of the Personnel Commission's
actions is very unclear, including whether the documents reflected the actual disposition of
9

ISSUES
Did LAUSD (1) conduct an investigatory meeting about Davis's workplace conduct;
(2) issue Davis a notice
of
unsatisfactory conduct; and/or (3) dismiss Davis from employment
in retaliation for her protected activities?
CONCLUSIONS OF LAW
To demonstrate that an employer discriminated or retaliated against an employee in
. violation
of
EERA section 3543.5(a), the charging party must show that: (1) the employee
exercised rights under EERA; (2) the employer had knowledge
of
the exercise
of
those rights;
(3) the employer took adverse action against the employee; and (4) the employer took the
action because
of
the exercise
of
those rights. (Novato Unified School District (1982) PERB
Decision No. 210 (Novato USD).)
1.
	Protected Activities
The first element
of
a prima facie case is whether the charging party engaged in activity
protected under EERA. PERB has held that "EERA section 3543 recognizes a protected right
of
self-representation that includes the right
of
individuals to present complaints to the
employer about unsafe working conditions." (Garden Grove Unified School District (2009)
PERB Decision No. 2086 (Garden Grove USD).) For example, in Los Angeles Unified School
District (1995) PERB Decision No. 1129 (Los Angeles USD), PERB held that an employee's
report
of
concerns for her safety in dealing with individuals who might be under the influence
of
alcohol or drugs constituted protected activity. (See also Los Angeles Unified School
District (1992) PERB Decision No. 957.)
Davis's Personnel Commission appeal and how the Personnel Commission could have adopted
the hearing officer's decision before the hearing officer rendered his decision. Irrespective of
these discrepancies, Davis did clearly testify that her employment was terminated on May 11,
2011, and that she has not returned to work.

According to the PERB complaint in this case, on August
5,
2010, Davis complained to
Seary that the assignment to guard the front door
of
the Sojourner Truth campus was unsafe
due to the location
of
the campus. As in Los Angeles USD, supra, PERB Decision No. 1129,
Davis's expressed safety concerns were protected under EERA.
The PERB complaint also alleges that Davis made a second safety complaint on
December 6, 2010, regarding the alleged attempt to set her on fire and other student threats.
As explained above, the evidence presented about the fire incident was not credible. No one
else corroborated her story. 	Likewise, no documentary evidence, including the referral form
about the incident and the police dispatch report, supported Davis's claim. Davis's own
testimony about the incident was inconsistent, particularly with respect to the referral fonri.
Based on these facts, Davis has not met her burden
of
proving that this incident occurred or,
more importantly, that she reported the incident to someone at LAUSD.
Nevertheless, the record did show that Davis complained that a student had threatened
her that day. Those comments were reflected on the referral form and both Antoine and Seary
acknowledged knowing about the threats. This report is sufficiently related to workplace
safety to constitute protected activity.
In addition, the PERB complaint also alleges that Davis engaged in protected activity
on February 7, 2011, by contacting Local 99 regarding her knee injury. An employee's request
for union assistance over working conditions is protected activity. (County
of
Riverside (2011)
PERB Decision No. 2184-M, citing City
of
Modesto (2009) PERB Decision No. 2022-M;
Barstow Unified School District ( 1996) PERB Decision No. 1164 (Barstow USD).)
There is also evidence that Davis engaged in other protected activities not specifically
enumerated in the PERB complaint. Namely, on November 9, 2010, Davis reported other
threats by a student against her. In addition, Davis brought a Local 99 representative to the
December 8, 2010 meeting. As explained above, safety complaints and requests for union
11

representation are protected under EERA. (Los Angeles USD, supra, PERB Decision
No. 1129; Barstow USD, supra, PERB Decision No. 1164.) PERB has considered unalleged
protected activities where the following elements are met:
(
1)
adequate notice and opportunity to defend has been provided
the respondent; (2) the acts are intimately related to the subject
matter
of
the complaint and are part
of
the same course
of
conduct; (3) the unalleged [issue] has been fully litigated; and
(
4)
the parties have had the opportunity to examine and be cross-
examined on the issue.
(Lake Elsinore Unified School District (2012) PERB Decision No. 2241.) These elements
are
met in this case. LAUSD had ample notice about Davis's other activities, given that both were
discussed during the Personnel Commission proceedings prior to the hearing. LAUSD's own
documentary evidence referenced both instances as well. The additional acts are related to the
claims at issue in this case because they merely represent additional acts
of
similar protected
activity by Davis. Moreover, LAUSD's counsel questioned Davis and all other witnesses with
any first-hand knowledge
of
Davis's activities. Based on these facts, it is appropriate to
consider this conduct as protected activity.
2. 	Knowledge
of
Protected Activity
The second element
of
a prima facie case is whether the employer was aware
of
the
employee's protected activities. To establish this element, at least one
of
the individuals
responsible for taking the adverse action must be aware
of
the protected conduct. ( Oakland
Unified School District (2009) PERB Decision No. 2061; California State University
(San Francisco) (1986) PERB Decision No. 559-f(.)
Seary and Antoine acknowledged being were aware of Davis's various safety
complaints. Likewise, both recalled a Local 99 agent present during the December 8, 2010
meeting with Davis. This is sufficient to satisfy this element of the prima facie case.
12

On the other hand, Davis has not shown that anyone at LAUSD was aware
of
her
February 7, 2011 request for Local 99 assistance. 	Davis testified that she contacted Local 99
and then informed both Givens and the Tri-C CDS administrative office that she was leaving to
see the doctor. No evidence showed that she ever told anyone that she had contacted Local 99
or that she was seeing the doctor at Local 99's request. Thus, Davis has not proven that
LAU SD representatives were aware
of
this activity.
3. 	Adverse Actions
The third element
of
a prima facie case is whether the employer took an adverse
employment action against the employee. The Board uses an objective test to determine
whether an employer's conduct is adverse to employme?t. (Palo Verde Unified School District
(1988) PERB Decision No. 689.) In a later decision, the Board further explained that:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864, emphasis supplied, fn.
omitted.)
In this case, the PERB complaint lists three adverse actions. First, it is alleged that, on
December 8, 2010, Seary called Davis into an investigatory meeting where the possibility of
discipline was raised. In State
of
California (Department
of
Youth Authority) (2000) PERB
Decision No. 1403~S, the Board held that "any teacher being investigated for [alleged
misconduct] of assigned students, would reasonably consider such action as having an adverse
impact on his/her employment."
Second, the PERB complaint states that, on March 3, 2011, LAUSD issued Davis a
notice of unsatisfactory service. PERB has found similar disciplinary documents to be adverse
actions. (Los Angeles Unified School District (2007) PERB Decision No. 1930.)
13

Third, the PERB complaint alleges that the District terminated Davis's employment,
effective May 11, 2011. PERB has held, in no uncertain terms
that"[
d]ismissal
of
an
employee is an adverse action." (City & County
of
San Francisco (2011) PERB Decision
No. 2207-M, citing Rainbow Municipal Water District (2004) PERB Decision
~o.
1676-M.)
In this case, documentary evidence would seem to suggest that Davis's termination was
rescinded by the Personnel Commission, but no evidence was presented elaborating on those
documents. The documents, by themselves, are not sufficient to establish the disposition
of
Davis's employment at LAUSD. (See PERB Reg. 32176; County
of
Riverside (2009) PERB
Decision No. 2090-M.) Davis unequivocally testified that she was terminated effective
May 11, 2011, and has not been back to work since then. LAUSD presented no evidence
disputing that statement. This is sufficient to prove that her employment was terminated.
4. 	Nexus
The final element
of
a prima facie case for retaliation is whether there is a causal
connection, or nexus, between the protected conduct and the adverse action. (Novato USD,
supra, PERB Decision No. 210.) Davis's primary theory of nexus is based on timing; she
asserts that adverse actions followed clo.se in time to Davis's protected activities. The
closeness in time between the charging party's protected activities and the adverse action is an
important circumstantial factor in determining the employer's motive. (North Sacramento
School District (1982) PERB Decision No. 264.)
Here, the record shows that LAUSD took each
of
the adverse actions in this case
shortly after protected activity by Davis. 	Seary ordered the December 8, 2010 meeting just
days after Davis made the December 6, 2010 safety complaint. Likewise, LAUSD issued the
notice of unsatisfactory service on March 3, 2011, less than three months after Davis requested
Local 99 assistance during the December 8, 2010 meeting. That notice became the basis for
Davis's eventual termination from employment. PERB has found this closeness in time to be
14

circumstantial evidence
of
nexus. (Los Angeles Unified School District (2012) PERB Decision
No. 2244; Calaveras County Water District (2009) PERB Decision
No. 2039-M.)
Howeve_r,
timing alone is not sufficient to demonstrate the necessary connection
between the adverse action and the protected conduct. (Moreland Elementary School District
(1982) PERB Decision No. 227.) Davis asserts a myriad
of
other theories to suggest LAUSD
had an unlawful motive for its actions. Each will be discussed below.
a.
	Inadequate Investigation
Davis maintains that LAUSD did not adequately investigate Givens's complaints about
her work performance. An employer's cursory or otherwise inadequate investigation into
alleged misconduct may be circumstantial evidence
of
nexus. (City
of
Torrance (2008) PERB
Decision No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560.)
However, a supervisor's reliance on reports from subordinates does notamount to an
inadequate investigation where there is no reason to doubt the accuracy
of
the reports.
(County
of
Riverside, supra, PERB Decision No. 2184-M.)
In this case, both Seary and Antoine were aware that Davis and Givens had a
problematic working relationship. This could provide some basis for them to doubt the claims
made in Givens's reports to Antoine. However Davis's assertion that LAUSD did not attempt
to verify the claims in Givens's reports is simply false. 	Seary and/or Antoine met with both
Givens and Davis multiple times to discuss their relationship in August 2010. Seary and
Antoine also met with Davis multiple times in December 2010. In addition, both Antoine and
Njoku personally witnessed Davis inappropriately shouting at students. Njoku also observed
Davis scheduling appointments without informing Givens. Davis offered no evidence at the
hearing disputing any of these facts. 	Based on this evidence, Davis failed to prove that
LAUSD conducted an inadequate investigation.
15

b.
	Failure to Follow Procedures
Davis also alleges that LAUSD did not give proper notice
of
the December
8,
2010,
investigatory meeting. An employer's failure to follow existing procedure or policies may be
evidence
of
nexus. (Santa Clara Unified School District ( 1979) PERB Decision No. 104.) To
establish that an employer departed from existing procedures, the charging party must show.
what the procedure was and how the employer deviated from that process. (Garden Grove
USD, supra, PERB Decision No. 2086.)
In this case, no evidence was presented about what procedures LAUSD was required to
follow when scheduling the December 8, 20
IO
meeting or otherwise informing her
of
possible
discipline. Thus, Davis has not met her burden
of
proving that LAUSD deviated from existing
procedures and policies.
c.
	Assigning Davis Job Duties Outside
of
Her Job Classification
Davis also asserts that Givens's assignment
of
duties outside
of
her job classification
was evidence
of
animus towards her protected activities. This argument is unpersuasive under
the facts in this case. The job description for Davis's position lists assisting teacher in a
variety
of
capacities such as implementing lessons, directing activities, maintaining records,
and supervising students. This is generally consistent with the clerical and student supervision
duties Givens assigned to her. Furthermore, the job duties assigned to Davis appears to have
been borne more out
of
necessity than animus for her protected activity. The record
indisputably shows that the Sojourner Truth campus was a difficult work assignment and that
the three staff members there, Davis, Givens, and Stricke, needed to be flexible and work
together. Davis herself described her job as "doing whatever the teacher and the principal
· asked me to do" since 2004, long before any of the protected activities alleged in this case.
This further undermines Davis's assertion that the job duties were assigned to her somehow
evidenced a retaliatory motive.
16

d.
	Failure to Inform Davis
of
its Intent to Discipline Her
Davis also asserts that LAUSD did not ever inform her that her conduct could result in
discipline. This position is factually untrue. The purpose
of
the December
8,
2010 meeting
was specifically to inform Davis that failure to improve her performance would result in
discipline. In addition,
as
explained above, Davis did not demonstrate whether LAUSD was
required by policy or past practice to inform her
of
the discipline beforehand.
Moreover, Davis's argument, even
if
true,
is
unpersuasive. PERB has consistently
found no retaliation where employees are disciplined for refusing to comply with a direct
order. (San Bernardino County Public Defender (2009) PERB Decision No. 2058-M;
Los Angeles Unified School District (2005) .PERB Decision No. 1791, citing The Regents
of
the University
of
California (1996) PERB Decision No. 1158-H.) In this case, Davis did not
dispute at the hearing either that she refused to perform several
of
the job duties Givens
assigned her, or that she shouted at students. Davis engaged in this misconduct at her peril.
Although not clear, Davis may be contending that dismissal was unusually harsh
discipline in light
of
her misconduct. In San Joaquin Delta Community College District (1982)
PERB Decision No. 261, the Board found evidence
of
nexus where the employer's discipline
was severe in comparison to the employee's relatively benign misconduct. In contrast, in State
of
California (Department
of
Developmental Services, Napa State Hospital) (1984) PERB
Decision No. 378-S, PERB found no nexus between an employee's protected activities and his
dismissal where there was no evidence that progressive discipline was the standard practice.
In this case, Davis presented no evidence about LAUSD's policies concerning
discipline and whether LAUSD typically employed progressive discipline in cases similar to
hers. Likewise, Davis has not shown that she was treated differently from other similarly
situated employees. (Sacramento City Unified School District (20 I 0) PERB Decision
17

No. 2129 [finding no nexus where the employee did not show that he was treated differently
from other employees guilty
of
similar misconduct].)
e. 	Witness Credibility
Davis also asserts that all
of
the witnesses that testified about her misconduct lacked
credibility and should not be trusted. In support
of
this position, Davis claims that Njoku; s
testimony in particular contradicted earlier testimony she gave during the Personnel
Commission hearing. 	This claim is not supported by the record. According to the hearing
officer's findings, Njoku testified
that
she overheard "an angry and loud argument between
[Davis] and a Facility student, in which the student repeatedly referred to [Davis] as a
'bitch/
to which [Davis] repeatedly'responded 'Yo momma [sic]'." This is consistent with Njoku's
testimony during the instant hearing.6
To the contrary, it is concluded that Davis lacked credibility as a witness. Davis was
very argumentative during testimony, at one point denying assertions she wrote in her own
unfair practice charge form as well denying statements contained in transcripts
of
her
testimony ·before the Personnel Commission. 7 Davis also denied ever seeing her own job
description even though that document was referred to frequently throughout the Personnel
Commission proceedings. As noted above, Davis also contradicted herself when testifying
about key issues including the events of December 6, 2010 and her January 2011 injury. Thus,
to the extent that Davis's testimony conflicts with that of other witnesses, Davis's testimony is
not credited.
18
It is also noteworthy that the hearing officer in the Personnel Commission matter
expressly credited Njoku's testimony over Davis's on this issue.
7 Davis later acknowledged that the Personnel Commission transcripts were accurate
and did not object to the admission of those transcripts as exhibits in this case.

f.
	School Site Funding
Davis also asserts that her termination was part
of
an effort by LAUSD to prevent her
from suspending more students from school, which Davis contends adversely affects the
funding for the Sojourner Truth school site. No evidence supporting this contention was
presented. Even
if
there was such evidence, it would only suggest that LAUSD's motive for
dismissal was something other than retaliation for BERA-protected activity, something PERB
lacks jurisdiction to address.
Upon examining the record as a whole, it is concluded that Davis failed to meet her
burden
of
proving a nexus between her protected activities and LAUSD's adverse actions.
5. 	LAUSD's Burden
Assuming for the purposes
of
discussion that Davjs proved all the elements
of
a prima
facie case, LAUSD would have met its burden
of
showing that retaliation was not its true
motive for either the December 8, 2010 meeting, the March 3, 2011 notice
of
unsatisfactory
service, or the May 11, 2011 dismissal from employment.
If
the charging party establishes all
the elements
of
a prima facie case, the burden then shifts
to
the respondent to prove by a
preponderance
of
the evidence that it would have taken the same course
of
action even
if
the
charging party did not engage in any protected activity. (Santa Ana Unified School District
(2012) PERB Decision No. 2235, citing Novato USD, supra, PERB Decision No. 210, Martori
Brothers Distributors
v.
Agricultural Labor Relations Board. ( 1981) 29 Cal.3d 721, 729-730
(Martori Bros.).) In other words, the issue is whether the adverse action would have occurred
"but for" the protected acts. (Ibid.) However, the focus
of
this analysis "is not whether the
employer had a lawful reason for the action but whether it took the action for an unlawful
reason." (Baker Valley Unified School District (2008) PERB Decision No. 1993, citing
McFarland Unified School Dist.
v.
PERB (1991) 228 Cal.App.3d 166, 169.)
19

In City
of
Santa Monica (2011) PERB Decision No. 2211-M, the Board held an
employee's long record
of
unacceptable performance demonstrated that he was not terminated
for his grievance activity.
	In
Martori Bros., supra, 29 Cal.3d at p. 730-731, the court found
that an employee's protected activity was not the true cause for his termination given the
"ample evidence"
of
misconduct, such as making threatening, obscene, and insubordinate
statements. In California State University, Long Beach (1987) PERS Decision No. 641-H,
PERB found that an employee's deteriorating relationship with his supervisor was justification
for adverse actions. In contrast, in Jurupa Community Services District (2007) PERB Decision
No. 1920-M (Jurupa CSD), the Board found that an employer's asserted justifications for
taking adverse actions were pre-textual because they were either overblown, trivial, or based
entirely on·hearsay.
In this case, as in Martori Bros., supra, 29 Cal.3d at pp
..
730-731, the record showed
that Davis had a history
of
inappropriate confrontations with both Givens and with students.
And similar to City
of
Santa Monica, supra, PERB Decision No. 2211-M, there was evidence
that LAUSD was not satisfied with Davis's work performance and with her failure to follow
directions since at least August 20 I 0. Unlike in Jurupa CSD, supra, PERB Decision
No. 1920-M, the accusations that Davis failed to perform assigned job duties and
inappropriately provoked students was quite serious and was based on testimony from Antoine,
Givens, and Njoku. Notably, during the hearing, Davis never denied that she failed to follow
several
of
Givens' s directives, nor did she deny making inappropriate statements to students.
Based on these facts, it is concluded that Davis's protected activity was not the true cause for
the adverse actions taken against her.
PROPOSED ORDER
Sondra Davis has not established that the Los Angeles Unified School District
retaliated against her for engaging in protected activities. Therefore, the Public Employment
20

Relations Board (PERB or Board) complaint and the underlying unfair practice charge
in
Case
No. LA-CE-5557-E are hereby dismissed.
Right to Appeal
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
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 95811-4124
(916) 322-8231
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, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. 	(Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
PERB Regulation 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, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 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,
§§
32300, 32305, 32140,
and 32135, subd. (c).)
21