Los Angeles Unified School District (PERB 2447E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CARMEN FRITSCH-GARCIA,
Charging Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5779-E
PERB Decision No. 2447
August 10, 2015
Appearances: Carmen Fritsch-Garcia, on her own behalf; Office
of
the General Counsel by
Marcos F. Hernandez, Assistant General Counsel, for Los Angeles Unified School District.
Before Martinez, Chair; Winslow and Gregersen, Members.
DECISION
GREGERSEN, Member: This case comes before the Public Employment Relations
Board (PERB or Board) on exceptions filed on November 17, 2014, by Carmen Fritsch-Garcia
(Fritsch-Garcia) to a proposed decision (attached) by an administrative law judge (ALJ),
dismissing Fritsch-Garcia's unfair practice charge against the Los Angeles Unified School
District (District). The charge, as amended, alleged that Fritsch-Garcia was laid off from
employment in retaliation for her pursuit
of
an unfair practice charge against the District.
Specifically, Fritsch-Garcia alleged that the District violated the Educational Employment
Relations Act (EERA)1 section 3543.5(a) by including Fritsch-Garcia on a list
of
employees
EERA is codified at Government Code section 3540 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.
1

who were subject to a reduction in force (RIF), and by ultimately laying her off because she
filed and pursued an earlier unfair practice charge with PERB against the District.2
PERB Regulation 323003 requires the party filing exceptions to a proposed decision to
include: ( 1) a statement of 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 the portions of the record relied upon; and (4) state the grounds for each
exception. (PERB Reg. 32300, subd. (a)(l)-(4).) Additionally, an exception not specifically
urged shall be waived, pursuant to subdivision (c) of the same regulation.
Although the Board's review of exceptions to a proposed decision is de novo, it need
not address arguments that have already been adequately addressed in the same case or that
would not affect the result (Trustees of the California State University (Culwell) (2014) PERB
Decision No. 2400-H, pp. 2-3 (CSU (Culwell)); Los Angeles Superior Court (2010) PERB
Decision No. 2112-1, pp. 4-5; Morgan Hill Unified School District (1995) PERB Decision
No. 1120, p. 3), particularly where the party seeking relief has simply reasserted its claims
without identifying a specific error of fact, law or procedure to justify reversal. (Los Rios
College Federation of Teachers (Sander, et al.) (1995) PERB Decision No. 1111, pp. 6-7;
State of California (Department of Youth Authority) (1995) PERB Decision No. 1080-S,
pp. 2-3; San Bernardino City Unified School District (2012) PERB Decision No. 2278, pp. 2-3;
County of San Diego (2012) PERB Decision No. 2258-M, pp. 2-3.)
Fritsch-Garcia's earlier unfair practice charge against the District, PERB Case
Number LA-CE-5516-E, was filed on December 1, 2010, and dismissed by PERB on April 24,
2012. Fritsch-Garcia did not appeal the dismissal. The ALJ took administrative notice of
PERB's records regarding that case during the formal hearing in this matter without objection.
2
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3
2

Compliance with the regulation is required to afford the respondent and the Board an
adequate opportunity to address the issues raised. (Temecula Valley Unified School District
(1990) PERB Decision No. 836, pp. 2-3; see also San Diego Community College District
(1983) PERB Decision No. 368.) Failure to comply with Regulation 32300 may result in
dismissal
of
the matter without review
of
the merits
of
excepting party's claims. (See
California State Employees Association (O'Connell) (1989) PERB Decision No. 726-H at
p.
3;
Los Angeles Unified School District (Mindel) (1989) PERB Decision No. 785.) We choose to
do so here.
On November 17, 2014, within the time period for filing a statement
of
exceptions to an
ALJ proposed decision, Fritsch-Garcia filed a six-page document with PERB titled
"Appeal/Extension," which we construe as her statement
of
exceptions. In the document,
Fritsch-Garcia made a fourth request for an extension
of
time to file her "appeal," requested a
transcript
of
the formal hearing to use in filing a statement
of
exceptions,
4
and provided six
pages
of
"fundamental flaws" with the proposed decision. On November 25, 2014, the District
filed a response to Fritch-Garcia's November 17, 2014 filing.
5
Fritsch-Garcia characterizes her November 17, 2014 document as a response to the
"fundamental flaws" found in the proposed decision. The "fundamental flaws" mentioned in
the document identify numerous factual distinctions between the proposed decision and
Fritsch-Garcia's understanding
of
what testimony was presented at hearing. For example,
Because the document containing Fritsch-Garcia's fourth request for an extension of
time also includes substantive content taking issue with the proposed decision, which the
District responded to on November 25, the Appeals Assistant notified the parties that the
filings were complete.
4
Fritch-Garcia had the opportunity to request a transcript at the hearing, but elected not
to do so. After the hearing, she was informed by the ALJ how to go about requesting a
transcript. However, Fritsch-Garcia failed to properly request a transcript at any point prior to
the filing of her November 17, 2014 document.
5
3

Fritsch-Garcia states that the ALJ misstated the facts in finding that displacement occurred
because Fritsch-Garcia was no longer authorized to teach science. In support
of
her
contention, Fritsch-Garcia provides seven paragraphs
of
factual background with no citation to
a record or evidence presented during hearing. Fritsch-Garcia also alleges that evidence was
produced showing that the District did not comply with contract language, again without
citation to a record or evidence presented.
While the majority
of
Fritsch-Garcia's exceptions identify the part
of
the proposed
decision to which each exception is taken, none designate the portions
of
the record relied
upon for her exception. As previously stated, Fritsch-Garcia failed to requested a transcript
of
the formal hearing. As such, the formal hearing was not transcribed. Without a transcript to
designate portions
of
the record Fritsch-Garcia relies upon, there is no basis to question the
ALJ's findings
of
fact. Therefore, by virtue
of
PERB Regulation 32300(a)(3), Fritsch-Garcia's
exceptions to the ALJ's factual findings are deficient.
The majority
of
Fritsch-Garcia's exceptions also fail to identify grounds for the
exceptions raised pursuant to PERB Regulation 32300(a)(4), and instead merely express
disagreement with the ALJ' s conclusions and repeat arguments made in the original charge
documents. For instance, Fritsch-Garcia cites to the ALJ's finding that "the record showed
that out
of
a total
of
165 health teachers, 67 least senior were subjected to layoff, regardless
of
whether they were roster-carrying or in a contract pool." Such a finding, according to Fritsch-
Garcia, verifies the inconsistencies, discrimination and favoritism showed by the District, but
she does not explain how.
The Board need not address arguments that have already been adequately addressed by
the ALJ, particularly where the excepting party has simply reasserted its claims without
identifying a specific error of fact, law or procedure that would justify reversal. (Salinas
4

Valley Memorial Healthcare System (2015) PERB Decision No. 2433-M; Los Angeles
Superior Court (2010) PERB Decision No. 2112-I; Morgan Hill Unified School District (1995)
PERB Decision No. 1120, p.
3;
State
of
California (Department
of
Youth Authority) (1995)
PERB.)
Because Fritsch-Garcia raised no issues
of
fact, law or procedure warranting further
Board review and failed to othePNise comply with PERB's regulation governing exceptions to
a proposed decision, we find that the ALJ's findings
of
fact are adequately supported by the
record and her conclusions
oflaw
are well-reasoned and in accordance with applicable law. We
hereby adopt the proposed decision as the decision
of
the Board itself.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5779-E are
hereby DISMISSED.
Chair Martinez and Member Winslow joined in this Decision. ·
5

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CARMEN FRITSCH-GARCIA,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5779-E
PROPOSED DECISION
(09/09/2014)
Appearances: Carmen Fritsch-Garcia, on her own behalf; Office of the General Counsel by
Marcos F. Hernandez, Assistant General Counsel, for Los Angeles Unified School District.
Before Valerie Pike Racho, Administrative Law Judge.
In this case, a teacher alleges that she was laid off from employment in retaliation for
her pursuit of an unfair practice charge against the employer. The employer maintains that its
decision was not motivated by the teacher's protected conduct, as she was one of several
thousand employees in total, and of 67 Health teachers in particular, who were laid off in 2012
due to a necessary reduction in force (RIF) for reasons of declining budget and student
enrollment.
PROCEDURAL HISTORY
On December 28, 2012, Carmen Fritsch-Garcia filed an unfair practice charge with the
Public Employment Relations Board (PERB or Board) against the Los Angeles Unified School
District (LAUSD or District). On September 11, 2013, Fritsch-Garcia filed a First Amended
Charge, and on October 14, 2013, she filed a Second Amended Charge. On February 4, 2013,
October 4, 2013, and November 4, 2013, the District filed position statements responding to
the original and amended charges.

On January 16, 2014, the PERB Office
of
the General Counsel issued a complaint
alleging that the District violated the Educational Employment Relations Act (EERA) 	section
3543.5(a) by including Fritsch-Garcia on a list
of
employees who were to be subjected to RIF,
and by ultimately laying off her employment because she filed and pursued an unfair practice
charge with PERB against the District.
1
2
On February
5,
2014, the District filed its answer to the complaint, admitting certain
facts, denying any violation
of
the law, and asserting various affirmative defenses.
On March 12, 2014, PERB conducted an informal settlement conference with the
parties, but the issues were not resolved and the matter was then scheduled for formal hearing.
On June 23, 24, and 25, 2014, the hearing was held. The District made a verbal motion
to dismiss the charge and PERB complaint at the conclusion
of
Fritsch-Garcia's case-in-chief.
The District's motion was denied without prejudice by the Administrative Law Judge (ALJ) at
that point, and the District then presented its own case-in-chief. After the conclusion
of
Fritsch-Garcia's case-in-rebuttal, the District again verbally moved to dismiss the
ch&rge
and
PERB complaint. After hearing argument from both parties, the ALJ granted the District's
motion on the record and stated that she would issue a proposed decision on the matter under
PERB Regulation 32215.3
EERA is codified at Government Code section 3540 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.
1
Fritsch-Garcia's earlier unfair practice charge against the District, PERB Case
Number LA-CE-5516-E, was filed on December 1, 2010, and dismissed by PERB on April 24,
2012. Fritsch-Garcia did not appeal the dismissal. Administrative notice was taken of PERB 's
records regarding that case during the hearing in this matter without objection.
2
PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3
2

FINDINGS OF FACT4
The Parties
The District is a public school employer within the meaning of EERA section
3540.1 (k). At all times relevant to this case, Fritsch-Garcia was an employee within the
meaning ofEERA section 3540.lG), and included within a bargainii1g unit exclusively
represented by United Teachers Los Angeles (UTLA or Union). 	UTLA and the District were
and are parties to an operative collective bargaining agreement (CBA).
5
6
Fritsch-Garcia's Teaching Credentials and Employment Hist01y
Fritsch-Garcia began her employment with LAUSD in July 2004 working as an intern
teacher in special education at the Elizabeth Learning Center. In 2005, the District offered
Fritsch-Garcia a probationary contract to teach health. At that time, she had a preliminary
single-subject teaching credential in health science. 	Such a credential allows her to teach the
subject of health at any school district in the state. She also obtained that year a Middle School
Authorization (MSA) from the District that allowed her to teach outside of her credential area
in biology.
7
The MSA must be approved and renewed yearly by the District in order to be
valid, and authorizes a teacher to teach that subject only in the school district that issued it.
8
This proposed decision omits discussion of certain facts in the record deemed
immaterial to deciding the issues presented.
4
5 UTLA was not a party to the case and did not represent Fritsch-Garcia.
6 The CBA was not introduced into evidence.
Health science is a distinct subject area from physical and biological sciences. The
California Commission on Teacher Credentialing (CTC) maintains credential records for
teachers.
7
The record does not demonstrate, however, that Fritsch-Garcia ever taught biology. It
appears that she taught life science after receiving the MSA.
8
3

Fritsch-Garcia does not currently, and has never, possessed a single-subject teaching
credential in biology or any other category
of
sciences. 	It is undisputed that Fritsch-Garcia
could, without the assistance
of
the District, apply for a supplemental authorization from the
state to teach science classes, but has never done so. Fritsch-Garcia taught both health and life
science for several years at Elizabeth Learning Center. In 2010, Fritsch-Garcia learned that her
MSA had not been renewed and was therefore no longer valid.
9
Issues Surrounding Fritsch-Garcia's Displacement From Elizabeth Learning Center
In or around April 2010, Fritsch-Garcia was "displaced" from Elizabeth Leaming
Center. Displacement occurs when the number
of
teachers at a particular school site exceeds
the number
of
teaching positions needed based on student enrollment. Teacher Bruce Mclver
was also displaced from Elizabeth Learning Center in or around April 2010. It is undisputed
that Mel ver possesses a credential or authorization under records maintained by the CTC that
allows him to teach science courses at any school district within the state. Fritsch-Garcia
questioned how Mclver obtained that credential because she overheard him saying during
science department meetings that his undergraduate degree was in political science.10
According to Garcia, she had greater seniority than Mciver.
Displaced teachers retain their level
of
salary and benefits and remain employed by the
District. They are either transferred to another school site in a regular assignment as a teacher
with a "roster," meaning that they have a class with assigned students, or they may be assigned
to a "contract pool" at a particular school site or sites. A contract pool teacher fills in for
The record also does not reflect that Fritsch-Garcia ever completed the process
of
obtaining a credential to teach in special education.
9
10
Mclver did not testify at the PERB hearing.
4

absent teachers at a school site in the manner of a substitute teacher. After displacement in
2010, Fritsch-Garcia was assigned to the contract pool at South Gate High School.
According to Fritsch-Garcia, Mciver returned to Elizabeth Learning Center after
receiving an authorization from the District that allowed him to teach health sometime in or
around July 2011. According to the CTC records introduced in evidence in the PERB hearing,
Mciver does not appear to possess a preliminary or clear health science credential. Fritsch-
Garcia admitted that she was unaware if Mclver also taught science classes at the time he
returned to the school, or whether he does so currently. The District introduced evidence of
records from Elizabeth Learning Center that. were collected in October 2011 showing that
Mciver taught science-geology at that time. It is Fritsch-Garcia's belief, but it was not
conclusively established in the record, that Mciver currently teaches health at Elizabeth
Learning Center. Sometime after June 30, 2012, Fritsch-Garcia was called to substitute for
him in a health class at the school. 11
Fritsch-Garcia believed that her displacement violated the CBA. She also believed that
the principal of Elizabeth Learning Center, Sharon Sweet, selected her for displacement to get
rid ofher. 	During her testimony, Fritsch-Garcia expressed the belief that one of the reasons
she was displaced was because Sweet did not renew the MSA that would have allowed her to
teach science courses. There was no evidence in the record showing that the MSA renewal
would have prevented, or was even related to, Fritsch-Garcia's displacement, however.
Fritsch-Garcia testified to her belief that Sweet manipulated the displacement process in order
12
After her layoff, Fritsch-Garcia worked as a substitute teacher for the District through
September 2013.
11
12 Sweet did not testify at the PERB hearing.
5

to favor certain teachers over others. However, there was no evidence presented that Sweet
\
actually decided who was to be displaced. Earlier, in 2009, Fritsch-Garcia filed a grievance
with UTLA's assistance, alleging that Sweet violated the CBA by reprimanding Fritsch-Garcia
in front
of
her peers. The outcome
of
that grievance was not explained in the record. There
'
was no evidence introduced that Sweet ever negatively evaluated Fritsch-Garcia's performance
or took any disciplinary action against Fritsch-Garcia.
13
Fritsch-Garcia requested that Sweet provide her with a seniority list
of
teachers
assigned to the school site. Fritsch-Garcia and Sweet exchanged a number
of
emails and Sweet
offered to meet with Fritsch-Garcia to explain the seniority list. Fritsch-Garcia cancelled that·
meeting because she was ill. The record does not indicate that Fritsch-Garcia ever attempted
to reschedule the meeting with Sweet to go over the list. At some point, Fritsch-Garcia
received a document entitled "Middle School Single Subject Seniority List by Department" for
teachers at Elizabeth Leaming Center. The list did not include the teachers' dates
of
hire with
the District.
The seniority list placed Fritsch-Garcia as the third and final teacher under both the .
departments
of
7th grade health and moderate/severe disabilities. Fritsch-Garcia's name was
not listed under the science department. The science department section
of
the list placed
teachers in the following order: Ted Gebhart, George Sperry, Nicholas Castrillon, Mclver,
Arnold Brent, and Lila James. Gebhart and Sperry were also included in the list under the
heading for the 7th grade health department, above Fritsch-Garcia.
Fritsch-Garcia did receive overall meets-standards performance evaluations, as well
as conference memoranda regarding alleged student and parent complaints about her, from
other District administrators between 2005 and 2009. There was no evidence that Sweet was
involved in any of those circumstances.
13
6

Fritsch-Garcia complained to Timothy Faulkner, a District certificated personnel
specialist, and to UTLA about her displacement. 	Fritsch-Garcia also complained
to
Faulkner
that UTLA was not adequately addressing her concerns. Fritsch-Garcia was informed by
UTLA representative Cami George that UTLA did not believe the displacement violated the
CBA and therefore it would not pursue a grievance over the issue.
14
Fritsch-Garcia con:finned
this understanding in email exchanges with UTLA representatives. Fritsch-Garcia was also
informed that she could file a grievance, or pursue some other dispute resolution procedure, on
her own.
15
The thrust
of
Fritsch-Garcia's dispute over displacement was that she did not
receive reliable seniority information because the list that she was provided did not contain
hire dates, so she had no way to independently verify its accuracy. She also questioned the
reason that she was placed in the department
of
7th grade health, rather than science, since she
also taught life science.
16
On December
1,
2010, Fritsch-Garcia filed an unfair practice charge with PERB, Case
No. LA-CE-5516-E, regarding the displacement issues.
On or around August
1,
2011, over one year after displacement, Fritsch-Garcia believed
there was an opening to teach 9th grade health atElizabeth Learning Center and emailed Sweet
requesting to exercise her "return rights'' under the CBA. Fritsch-Garcia believed there was an
open position because
of
information she received from UTLA representative Megan Boyd.
17
14 Faulkner did not testify at the PERB hearing.
15
George did not testify at the PERB hearing.
Although Fritsch-Garcia maintained during the hearing that she "challenged" the
displacement, the record did not demonstrate that she filed a grievance or pursued any other
formal dispute resolution process over that issue.
16
17 Boyd did not testify at the PERB hearing.
7

However, Sweet responded to Fritsch-Garcia that there was no current vacancy for a health
teacher at Elizabeth Learning Center.
Fritsch-Garcia then exchanged a number
of
emails with Faulkner in August and
September 2011. Faulkner informed Fritsch-Garcia that under the CBA, any right to return to
Elizabeth Leai-ning Center had expired after "Non11 Day" the previous year. 	Fritsch-Garcia
complained to Faulkner that Elizabeth Leaming Center teachers Sperry, Mary Gomez, and
Christopher Kyaw were each teaching one section
of
health, while she had been unfairly
displaced by Sweet. She took issue with Gomez's and Kyaw's ability to teach health under
their credentials. Fritsch-Garcia acknowledged during her testimony that Sperry,Gomez, and
Kyaw are all credentialed to teach science courses. Fritsch-Garcia expressed her belief during
the hearing that the District was contractually obligated to post an opening for a health teacher
at Elizabeth Learning Center rather than use existing science teachers to cover sections
of
health classes. Fritsch-Garcia did not introduce into evidence the CBA provision that would
support that theory. She took issue with the District requesting permits/authorizations for
science teachers to teach health when she is fully credentialed and ready to teach health.
Fritsch-Garcia also believes that Mciver's return to Elizabeth Learning Center sometime in the
2011-2012 school year was to take over the health classes that Sperry, Gomez, and Kyaw had
been covering and that this position should have gone to her instead.
18
Norm Day was described in the record as a day shortly after the start
of
the school
year where projected student enrollment figures are compared to actual student attendance
records. The District uses student attendance on Norm Day to ascertain its baseline staffing
requirements for the following school year.
18
8

Fritsch-Garcia's Extended Disability Leave of Absence
Prior to displacement, sometime on or about January 29, 2010, Fritsch-Garcia sustained
a workplace injury that was not specifically described in the record. As previously discussed,
after displacement, Fritsch-Garcia was assigned to the contract pool at South Gate High
School. She held that assignment from August 2010 through November 2010. Sometime in
November 2010, Fritsch-Garcia took disability leave presumably related to her injury earlier
that year.
Fritsch-Garcia was on leave from November 2010 until March 2012. Under District
policy, whenever an employee is on leave for more than one year, the employee's previous
assignment is not reserved. The District contacted Fritsch-Garcia at some point shortly before
her anticipated return to duty to inform her that she was to be assigned to Huntington Park
High School. Fritsch-Garcia attended a meeting with the principal of Huntington Park High
School, Lupe Hernandez, where Fritsch-Garcia was informed that the school could not
accommodate Fritsch-Garcia's request to periodically sit while teaching because of a recently
enacted school policy requiring teachers to stand during instruction. 	Fritsch-Garcia
interpreted this refusal to accommodate her medical condition as a sign that the District was
trying to keep her away. However, Fritsch-Garcia admitted that the District increased her
disability compensation because it did not offer modified work within a required timeframe.
Fritsch-Garcia never reported to Huntington Park High School. Instead, she was reassigned to
the contract pool at Maywood Academy upon her return to work in early March 2012.
19
19 Hernandez did not testify at the PERB hearing.
9

Layoff Notification
In the 2009-2010, 2010-2011, and 2011-2012 school years, the District determined the
need to reduce its workforce due to declining budget and student enrollment, which resulted in
several thousand employees being laid off in each of those years. Leanne Hannah, assistant
director of certificated human resources, testified that her office is responsible for compiling
and analyzing data regarding teacher seniority and assignments that are used to·determine the
particular kinds of services that need to be reduced. At the secondary ( as opposed to
elementary) teaching level, the need to reduce teachers by distinct classroom subject area is
determined.
Specifically, Hannah's office looks at budget reports and then meets with various
departments to evaluate how many teachers are on active duty, will return from leave, and are
retiring from employment. Hannah's office annually sends staffing verification rosters to each
school site in October, wherein teachers and principals confinn teachers' assignment and
seniority information and report back to the District. Contract pool teachers' staffing
verification rosters are compiled and maintained separately from school sites' rosters in human
resources. 	Based on student enrollment projections and its budget, the District determines
how many total teachers, and also within each department or subject area, for which it does not
have a position. For the particular kinds of services determined to be reduced, teachers are
selected for layoff eligibility in order of inverse seniority within their subject area, District-
wide. Some subject areas, such as, physics, are considered to be in shortage. In shortage
areas, even during RIF periods resulting in the layoff of other teachers, a properly credentialed
teacher could be newly hired by the District. Health is not a shortage area.
20
Fritsch-Garcia maintains that she was unable to verify the accuracy of her seniority
placement since she was in a contract pool.
2°
10

The Education Code requires that certificated employees be sent written notification by
the employer no later than March
15
if
their services will not be needed for the following
school year, and therefore will be eligible to be laid
off
at the end
of
the current school year.
(See Ed. Code,§§ 44949, 44955.)
Health was a particular kind
of
service that needed to be reduced in the 20l0-2011
layoffs. That year,
53
health teachers were notified that they would be laid off for the
following school year. Fritsch-Garcia, however, did not receive any notification from-the
District that she would be eligible for layoff during the 2010-2011 school year, and was not
laid off at that time.
Health was also determined to be a particular kind
of
service in need
of
reduction
during the 2011-2012 layoff cycle. On February 14, 2012, the District's governing board took
action to approve the issuance
of
layoff notices to 4,105 permanent certificated employees,
including 67 health teachers. These 67 health teachers included both roster-carrying teachers
and contract pool teachers. Prior to the March 15, 2012 deadline, Fritsch-Garcia received
written notifications via regular and certified mail from the District that she was to be laid off
from employment for the following school year.
21
Upon returning to work at Maywood
Academy in early March 2012 after her disability leave, she was also verbally informed by a
school administrator and a UTLA representative that she was going to be laid off.
Fritsch-Garcia received more than one notice, which she argued was evidence
of
a
departure from established procedures. One
of
these notices stated that she was assigned to
Huntington Park High School, one
of
the 45 specified schools wherein roster-carrying teachers
were protected from RIF regardless
of
seniority level under the order
of
a superior court judge
in the case of Sharai! Reed et al.
v.
State
of
California (Los Angeles Superior Court, Case No.
BC432420 (Reed).) 	Fritsch-Garcia did not carry a roster at Huntington Park High School or
Maywood Academy. Both notices informed Fritsch-Garcia that she was eligible to be laid off.
All teachers at Reed-protected schools who were otherwise eligible for layoff still received a
notice. Whether they were actually to be skipped was determined at the layoff hearing.
21
11

Fritsch-Garcia timely submitted in writing to the District a Request for Hearing to
determine whether cause existed to lay off her employment. In response, the District mailed to
Fritsch-Garcia what was referred to as an "Accusation Packet" dated March 30, 2012. 	The
packet included relevant sections
of
the Education and Government Codes pertaining to the
layoff process and informed Fritsch-Garcia that she must submit a Notice
of
Defense in writing
or the District could effectuate the layoff without holding a hearing. Fritsch-Garcia was further
informed that she could inspect and copy witness lists and documents in control
of
the District
by contacting attorneys in the LAUSD Office
of
the General Counsel. She was also informed
of
her right to conduct discovery upon filing the Notice
of
Defense. Fritsch-Garcia timely
submitted to the District her Notice
of
Defense. She then received notification from the
District about the date, time, and location
of
the hearing. She never requested discovery or to
inspect and/or copy District records regarding the layoff process.
22
The Layoff Hearing and Decision
The layoff hearing was conducted by ALJ Eric Sawyer from the state Office
of
Administrative Hearings (OAH) over approximately 20 days between April and June 2012.
Fritsch-Garcia appeared and was present as a respondent in the case on only the first day
of
that hearing. She did not testify. Some employee respondents, including Fritsch-Garcia,
elected to be represented by UTLA legal counsel at the layoff hearing. Seniority lists per
individual subjects, including the "Main Seniority List for Health," and other exhibits
introduced in evidence in the layoff hearing were available for viewing by parties and
observers in the main hearing rnom as well as in a room reserved for use by UTLA. There
The term "accusation," as used in the context of the layoff process simply means that
an employee is "accused" of not having enough seniority to survive the RIF, and therefore
cause exists for the employee to be laid off.
22
12

were.165.teachers
on
the
main
health seniority list, which represented
the
total number
of
health teachers employed by the District at that time. The first teacher on the list was the least
senior, and the 165th was
the
most senior. Fritsch-Garcia's name appeared
on
the list at
number 42. Thus, Fritsch-Garcia fell within the range
of
67 health teachers selected for layoff
by
inverse seniority.
Fritsch;.Garcia testified at the PERB hearing that she wanted to testify at the layoff
hearing, but was informed
by
UTLA counsel that her testimony was not needed. She testified
that she did not really understand that the layoff hearing represented her opportunity to
challenge the grounds for her own layoff. She also did
not
realize that she had the opportunity
to view seniority lists at the layoff hearing.
At
the PERB hearing, Fritsch-Garcia testified to her
belief
that
if
she had never been
displaced from Elizabeth Learning Center in 201 0, she would not have been subjected to layoff
in 2012, and that Sweet had engaged
in
a retaliatory campaign to end her employment with the
District. However, Fritsch-Garcia produced no evidence showing that Sweet was involved
in
the general decision to lay
off
several thousand employees in 2011-2012, to select health as
particular kind
of
service to be reduced that year, or to specifically include Fritsch-Garcia
within the seniority range
of
health teachers to be laid off.
ALJ Sawyer issued his proposed decision regarding the 2012 layoff process
on or about
June 6, 2012. Relevant to this matter, ALJ Sawyer found that the District's method
of
determining seniority for RIF purposes was valid and that its seniority lists were accurate,
except as specifically noted in his proposed decision. RIF seniority was defined by the District
as an employee's first date
of
service under a contract for employment. No inaccuracies as to
Fritsch-Garcia's seniority were noted in ALJ Sawyer's proposed decision.
13

ALJ Sawyer also found reasonable and upheld the District's competency criteria, which
determined bumping rights for teachers subjected to layoff. In order for an employee currently
assigned to a position subject to layoff to bump a less senior employee holding a position that
was not subject to layoff, the employee was considered "competent" to render service
if
(1) she
was fully credentialed in the other subject area, and (2) had worked one year within the last
five years in the other subject area. ALJ Sawyer also deemed correct and upheld the District's
contention that it had no duty to execute MSAs so that employees could bump into other
positions to avoid layoff under California law. Thus, an employee otherwise subject to layoff
but teaching in another subject area pursuant to a MSA was not found to have met the
District's competency criteria, which required a full credential, and had no right to be retained.
Finally, ALJ Sawyer concluded that the District was entitled under the Education Code
to reduce the particular kinds
of
service it had identified for RIF, including health, and that its
decision was not arbitrary, but a proper exercise
of
discretion. Thus, the accusation against
Fritsch-Garcia was sustained and her services were not required by the District for the 2012-
2013 school year. (See ALJ Sawyer's proposed decision, p. 42, para. 9.)
Fritsch-Garcia admitted that she received both a copy
of
ALJ Sawyer's proposed
decision and notification that it had been adopted by the District's governing board. Fritsch-
Garcia did not challenge or appeal the District's adoption
of
the proposed decision in superior
court. Accordingly, that decision is now final. Fritsch~Garcia was laid off as
of
June 30,
2012.23
After the layoff was final, in July 2012, Fritsch-Garcia exchanged a number of emails
with Faulkner and another certificated human resources administrator, Marjorie Josephat,
complaining that she should be able to bump less senior and allegedly less competent·
employees, like Mclver. Josephat did not testify at the PERB hearing. Fritsch-Garcia
continued to allege that Sweet had acted improperly and requested information regarding
23
14

ISSUE
Did the District retaliate against Fritsch-Garcia by selecting her for layoff eligibility in
March 2012 and laying off her employment in June 2012 because she filed and pursued an
unfair practice charge against the District?
CONCLUSIONS OF LAW
To prevail in an unfair practice case, the burden
of
proof at hearing rests on the
charging party to prove all
of
the elements
of
a prima facie case. (PERB Regulation 32178;
Oakland Unified School District (2009) PERBDecision No. 2061.) The party having the
burden
of
proof must offer evidence so that the trier may have a basis for finding in his favor.
(9 Wigmore, Evidence (Chadbourne ed. 1981) § 2487, p. 293.)
To demonstrate that an employer discriminated or retaliated against an employee in
violation
ofEERA
section 3543.S(a), the charging party must show by a preponderance
of
evidence 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, pp. 6-8 (Novato).) In determining whether an
employer's action is objectively adverse, the Board considers whether a reasonable person in
the same circumstances would find the action adverse to the employee's employment interests.
(Newark Unified School District (1991) PERB Decision No. 864.)
bmnping. In response, Faulkner and Josephat reiterated that Fritsch-Garcia's concerns
regarding displacement issues had been previously addressed by the District, but noted that
Fritsch~Garcia continued to disagree. They also responded that the proposed decision by the
ALJ regarding layoffs spoke to her other concerns and was final.
15

The final, critical element of a prima facie case is whether there is a causal connection,
or nexus, between adverse action and the protected activity. Because direct evidence of
unlawful motivation is rare, the existence or absence of nexus is usually established
circumstantially after considering the record as a whole. (San Bernardino City Unified School
District (2012) PERB Decision No. 2278; Moreland Elementary School District (1982) PERB
Decision No. 227.)
In order to assist in assessing circumstantial evidence of unlawful motive, PERB has
developed a set of nexus "factors." In addition to close timing between protected conduct and
adverse action, one or more other factors demonstrating unlawful motivation must be present
to adequately show nexus: (1) the employer's disparate treatment of the employee (State of
California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer's
cursory investigation of the employee's misconduct (City of Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action (Oakland
Unified School District (2003) PERB Decision No. 1529) or the offering of exaggerated,
vague, or ambiguous reasons (McFarland Unified School District (1990) PERB Decision No.
786); (6) employer animosity towards union activists (Jurupa Community Services District
(2007) PERB Decision No. 1920-M; Cupertino Union Elementary School District (1986)
PERB Decision No. 572); or (7) any other facts that might demonstrate the employer's
16

unlawful motive (North Sacramento School District (1982) PERB Decision No. 264; Novato,
supra, PERE Decision No. 210).
Protected Activities and Adverse Action
As to the threshold requirement
of
protected activity, filing and pursuing to resolution
an unfair practice charge, as Fritsch-Garcia did here, is protected by EERA. (Los Angeles
Unified School District (2012) PERE Decision No. 2244.) It was also revealed during the
hearing, but was not included in the PERE complaint, that !ritsch-Garcia had previously filed
a grievance against Sweet, complained about Sweet to District administration, and enlisted the
assistance
of
UTLA in those matters. Such activities are also protected by EERA. (Ibid;
California State University, Long Beach (1987) PERB Decision No. 641-H24
.)
It is appropriate to consider additional protected activities not specifically alleged in the
complaint when (1) adequate notice and opportunity to defend has been provided to 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. (Lake Elsinore
Un{fied School District, supra, PERB Decision No. 2241, p. 8.) The District had the full
opportunity to, and did, cross-examine Fritsch-Garcia regarding the additional instances
of
protected conduct. The District had the opportunity to address these instances in its argument
supporting its motion to dismiss. For these reasons, I conclude that the issues have been fully
litigated. Additionally, these issues were among the underlying subject matter
of
Case No.
LA-CE-5516-E, the protected conduct alleged in the PERE complaint. For this reason, there
When interpreting EERA, it is appropriate to rely upon decisional authority
interpreting parallel provisions of state and federal labor relations law. (Temple City Unified
School District (1990) PERB Decision No. 841, fn. 14, citations omitted.)
24
17

was adequate notice and opportunity to defend afforded the District. These activities are also
related to Fritsch-Garcia's theory of the case, namely, that Sweet orchestrated her ouster from
employment. Thus, they will be considered in the proposed decision.25
The District argued that layoff is not a true adverse action because no employee
wrongdoing is required or implied. That argument fails. A reasonable person would consider
the severance of the employment relationship that necessarily occurs through layoff to be
adverse to the employee's employment interests. (See Klamath-Trinity Joint Unified School
District (2005) PERB Decision No. 1778 [holding that the elimination of a position and
resulting layoff is an adverse action].) Accordingly, the first and third elements of the Novato
test for retaliation set forth above are not in serious dispute in this case and are met. However,
as discussed more fully below, Fritsch-Garcia has failed to show by a preponderance of
evidence that the relevant District decision-makers in this case had any knowledge of her
protected activities, and thus, that they could have taken any action in response to those
activities.
The Employer's Knowledge of Protected Activities and Nexus
To demonstrate the know ledge element of a prima facie case, at least one of the
individuals responsible for taking the adverse action must be aware of the protected conduct.
(Oakland Unified School District, supra, PERB Decision No. 2061.) The issue is whether "the
individual(s) who made the ultim?,te decision to take adverse action against the employee had
such knowledge." (Sacramento City Un(fied School District (2010) PERB Decision No. 2129,
p.~7, citing City of Modesto (2008) PERB Decision No. 1994-M.) Without factual support,
. The Board has also found it appropriate to consider events that fall outside of the
statutory limitations period as relevant backgrow1d information when they may shed light on
timely alleged violations. (San Diego Unified School District (1991) PERB Decision No. 885.)
25
18

knowledge of protected activity cannot simply be presumed and imputed to the employer's
decision-maker in the action at issue. (See City & County of San Francisco (2011) PERB
Decision No. 2207-M, dismissal letter, p. 5.)
Here, the record demonstrates that the decision to lay off 67 health teachers, including
Fritsch-Garcia, was made based on recommendations from Hannah's division of certificated
human resources to the District's governing board. Hannah testified that she had no
knowledge of Fritsch-Garcia's pending unfair practice charge against the District
at the time the layoff recommendation was made to the governing board in February 2012.
Hannah testified that her office does not routinely respond to unfair practice charges and only
becomes involved in such matters when asked to investigate specific issues regarding
certificated assignments by other District administrators. Likewise, there was no evidence that
the members of the District's governing board had any specific knowledge of Fritsch-Garcia's
pending PERB charge. Fritsch-Garcia also presented no evidence that Hannah or other
administrators within her office, or members of the governing board, were aware of Fritsch-:-
Garcia' s earlier grievance and other complaints against Sweet.
According to PERB's records in Case No. LA-CE-5516-E, Fritsch-Garcia specifically
complained about Sweet's and Faulkner's conduct in the unfair practice charge, so it can be
assumed that they were aware of this protected conduct despite the fact that Fritsch-Garcia
failed to call them as witnesses to testify to their knowledge of the issues in this case.26 This is
Because they were not called as wjtnesses, any written or verbal statements attributed
to Sweet and Faulkner that are offered to prove the truth of the matter asserted are hearsay.
Hearsay may not be used to fonn the basis of factual finding unless it would be admissible
over objection in civil court. (PERB Regulation 32176.) For purposes of discussion, since
Sweet and Faulkner are District administrators, it is presumed that their out of court statements
are admissible under a paiiy admission exception to the hearsay rule. Such an exception to the
26
19

also a reasonable assumption regarding Fritsch-Garcia's protected conduct that was not
included in the PERB complaint, since that conduct also specifically involved them.
In opposition to the District's motion to dismiss the complaint, Fritsch-Garcia argued
that it is widely understood among teachers that site-level administrators, like Sweet,
frequently talk to District-level administrators about specific teachers. She asserted that Sweet
is an experienced administrator who certainly would know how to get rid of someone that she
did not like, and that Sweet engaged in a retaliatory campaign against Fritsch-Garcia because
of her various complaints and protected activity. Thus, Fritsch-Garcia argues that both
knowledge of her protected conduct and animus should be imputed to the District decision-
makers here.27
Fritsch-Garcia's arguments are based on her sincerely-held beliefs, but were not
supported by any objective facts in the record. Beliefs, without factual foundation, comprise
"mere speculation, conjecture, or legal conclusions" that are insufficient to prove a prima facie
case. (Regents of the University of California (2005) PERB Decision No. 1771-H, p. 4; see
also Pleasant Valley Elementary School District (2004) PERB Order No. Ad-333, p. 10 [mere
conjecture, without evidence, does not prove wrongdoing].) There was simply no evidence
that Sweet, or Faulkner for that matter, had any input over the decision to lay off 67 health
hearsay rule does not apply to the hearsay statements of teachers, like Mciver, or union
representatives, like Boyd and George, however.
Although not applicable in this case because of a dearth of evidence to support it,
under a subordinate bias theory, a supervisor's unlawful motive may be imputed to the
decision-maker when: (1) the supervisor's recommendation, evaluation, or report was
motivated by the employee's protected activity; (2) the supervisor intended for his or her
conduct to result in an adverse action; and (3) the supervisor's conduct caused the decision-
maker to take adverse action against the employee. ( County of Riverside (2011) PERB
Decision No. 2184-M, p. 15.)
27
20

teachers, including Fritsch-Garcia, or that they communicated with the layoff decision-makers
regarding Fritsch-Garcia's protected conduct. As it has not been shown that the District
administrators who were responsible for deciding that Fritsch-Garcia was eligible for layoff
were aware of her various protected activities, it is not possible that they could have been
unlawfully motivated by them.
Moreover, even assuming that the knowledge element had been adequately
demonstrated, purely for the sake of discussion, there is no evidence of unlawful motivation by
the District.
Most of Fritsch-Garcia's arguments regarding nexus concern her claims of
inconsistencies, mistakes, and disparate treatment surrounding the layoff process. As an initial
point, these claims rest on issues that have already been fully litigated during the layoff hearing
conducted by ALJ Sawyer, and thus, Fritsch-Garcia is collaterally estopped from relitigating
those issues before PERB. Collateral estoppel is applicable to decisions of administrative
agencies, like OAR, when ( 1) the agency is acting in a judicial capacity; (2) it resolves
disputed issues of fact properly before it; and (3) the parties have had an adequate opportunity
to litigate the disputed issues. (State of California (Department of Corrections) (1995) PERB
Decision No. 1104-S, p. 4 (Department of Corrections.) The issues must also be identical,
have been actually litigated by the same parties, and the decision in the prior proceeding must
be final and decided on the merits. (Lucido v. Superior Court (1990) 51 Cal.3d. 335, 341.)
All of those elements are met here, despite rritsch-Garcia's claimed misunderstanding
regarding her rights as a respondent at the layoff hearing. The fact that Fritsch-Garcia did not
fully educate herself regarding her rights and obligations as a litigant in that matter does not
diminish that she possessed "adequate opportunity to litigate the disputed issues."
21

(Department of Corrections, supra, PERB Decision No. 1104-S, p. 4; see also People v. Sims
(1982) 32 Cal.3d 468,484 [issues actually litigated include those that are properly raised by
the pleadings or otherwise submitted for determination and determined; such detenninations
may be based on a failure of proof].) Additionally, there is no dispute that the decision is now
final and was decided on the merits, that Fritsch-Garcia was a respondent in that case, or that
the administrative agency acted in a judicial capacity. Thus, Fritsch-Garcia may not argue that
the District's (1) double notification of her eligibility for layoff, (2) calculation of her
seniority, (3) determination of her lack of competency to bump other employees not subject to
layoff, ( 4) failure to grant MSA waiver to shield her from layoff, or (5) assignment at
Maywood Academy rather than Reed-protected Huntington Park High School amount to
disparate treatment or a departure from procedures, because all of those issues were actually
litigated and conclusively decided by ALJ Sawyer. PERB may not revisit those issues now.
Most importantly, the lynchpin of Fritsch-Garcia's theory of wrongdoing in this case
rests on at least two unsupported and ultimately faulty premises, namely, that her displacement
in 2010 was designed by Sweet, who was allegedly hostile to her protected conduct (the 2009
grievance), 	and because she was displaced, she was then exposed to layoff vulnerability in
2012. None of these theories were proven by the evidence in the record.
28
29
Sweet could not have been influenced by Fritsch-Garcia's unfair practice charge,
because that was filed after displacement occurred.
28
Fritsch-Garcia also repeatedly alleged that when she requested clarification regarding
the District's displacement and layoff decisions, the District did not respond in good faith to
her questions and concerns, suggesting that the District provided her with vague and
ambiguous reasons for its actions. This was not demonstrated by the record. A review of the
various correspondence between Fritsch-Garcia and District administrators implies not that the
District failed to respond to Fritsch-Garcia's questions, but that she was dissatisfied with or did
not accept their answers.
29
22

First, other than Fritsch-Garcia's belief, there was no evidence that Sweet was actually
responsible for determining that Fritsch-Garcia was to be displaced. And even if Sweet was
involved in the decision, then it would stand to reason that she also selected Mclver for
displacement from Elizabeth Learning Center at the same time. That severely undercuts
Fritsch-Garcia's theory that Mclver was one of the teachers favored by Sweet at Fritsch-
Garcia's expense. Furthermore, although Fritsch-Garcia opined that she was displaced because
Sweet did not renew the MSA that allowed her to teach life science, that too was not supported
by any evidence. It was not shown that displacement occurred because Fritsch-Garcia was no
longer authorized to teach life science. 	Such a theory is especially dubious since it is
undisputed that, at the same time, Mciver was teaching science, was listedas a member of the
science department, and yet, was also displaced.
30
To the extent that Fritsch-Garcia attempts to demonstrate animus by claiming Sweet
allegedly blocked her from returning to Elizabeth Learning Center in 2011 by telling her there
was no opening in health, and instead hiring Mciver to teach health, this was not demonstrated
by competent evidence. The record did not clearly reflect what Mclver's complete teaching
assignments at Elizabeth Learning Center were at that time, or that there was actually an
opening in health in 2011. Fritsch-Garcia's belief on this point was based on uncorroborated
hearsay accounts by a UTLA representative. Thus, there is no basis to make a factual finding
on this point. Most importantly, even if it was shown that Sweet did mask an opening at the
Notably, none of Fritsch-Garcia's other suppositions about the propriety of the
District's or Sweet's decision to cover sections of health classes at Elizabeth Learning Center
with existing ·science teachers, or whether that actually occurred, were proven by competent
evidence in the record.
30
23

school, such a fact does nothing to prove that Sweet was connected to the layoff decision in
2012, which is the only alleged adverse action in instant PERB complaint.
Finally, the record did not show that Fritsch-Garcia's displacement, and resulting
contract pool assignments rather than a regular, roster-carrying classroom assignment, had any
causal connection to her eligibility for layoff in 2012. Rather, the record showed that out of a
total of 165 health teachers, the 67 least senior were subjected to layoff, regardless of whether
they were roster-carrying or in a contract pool. Thus, it was total District-wide seniority
among all heath teachers that determined layoff eligibility, not whether the health teacher had
regularly assigned students or seniority within particular school sites. There was no showing
that displacement had any effect whatsoever on Fritsch-Garcia's overall District-wide seniority
placement.
Moreover, if displacement had really made Fritsch-Garcia susceptible to layoff and the
District was unlawfully motivated, then it easily could have laid off Fritsch-Garcia during the
2010-2011 layoff cycle. Health was also a particular kind of service reduced in that year and
those layoffs happened after displacement and after the filing of Fritsch-Garcia's unfair
practice charge and other protected activities. The fact that the District did not select Fritsch-
Garcia to be laid off at its earliest opportunity strongly suggests that its motivation an entire
year later had nothing to do with Fritsch-Garcia's BERA-protected conduct.
For all of the reasons discussed herein, Fritsch-Garcia failed to meet her burden of
showing that relevant District decision-makers knew about, and therefore that they could have
been motivated by, her protected activities when they determined that she was one of several
thousand teachers who must be laid off in 2012. For that reason, the District's motion to
dismiss the case for failure to state a prima facie case was granted.
24

PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire record in this
case, the complaint and underlying unfair practice charge in Case No. LA-CE-5779-E, Carmen
Fritsch-Garcia v. Los Angeles Unified School District, 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 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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
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 or receivedby electronic mail before
the close of business, which meets the requirements of PERB Regulation 32135(d), provided the
filing party also places the original, together with the required numberof 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, 32091 and 32130.)
25

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).)
26