Antelope Valley Union High School District (PERB 2631E)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EUGENE SMITH,
Charging Party, 	Case No. LA-CE-6094-E
v. 	PERB Decision No. 2631
ANTELOPE VALLEY UNION HIGH SCHOOL
DISTRICT,
March 5, 2019
Respondent.
Appearance: Eugene Smith, on his own behalf.
Before Banks, Shiners, and Krantz, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Charging Party Eugene Smith (Smith) to the attached
proposed decision of an administrative law judge (ALJ). The complaint alleged that
Respondent Antelope Valley Union High School District (District) violated the Educational
Employment Relations Act (EERA)1 by removing courses from Smith’s schedule and refusing
to assign him extra-duty assignments because of his participation in protected activity. The
ALJ dismissed the complaint and underlying unfair practice charge, finding that although the
District knew of Smith’s protected conduct and took adverse employment action against him,
there was no evidence that the adverse action was motivated by Smith’s protected conduct.
The Board has reviewed the entire record in this matter. Based on this review, we
conclude that the ALJ’s findings of fact are adequately supported by the record and, except
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

where noted below, his conclusions of law are well-reasoned and in accordance with applicable
law. We therefore adopt the proposed decision as the decision of the Board itself as modified
and supplemented by the discussion below.
BACKGROUND
The ALJ’s procedural history and factual findings can be found in the attached
proposed decision. We briefly summarize those findings to provide context for our discussion
of Smith’s exceptions.
At all times relevant, the District was a party to a collective bargaining agreement
(CBA) with Smith’s exclusive representative, the Antelope Valley Teachers Association
(AVTA). Pursuant to the CBA, a “regular” teaching schedule consisted of five teaching
periods and one conference/preparation period. The CBA permitted teachers to earn additional
compensation by working beyond their regular load. The CBA provided for such extra work to
be paid hourly in certain circumstances, while in other circumstances it provided for teachers
to earn an extra one-sixth of their salary as their compensation for teaching an extra period.
The District distributed these “one-sixth” assignments based upon program needs, master
schedule considerations, credential authorization, and other factors enumerated in the CBA,
including seniority and recency of experience in teaching relevant content.
In November 1997, the District hired Smith to teach math at Littlerock High School. In
2003, the District transferred Smith to Knight High School, where he taught math for two years
before becoming the school’s Work Experience Coordinator. Smith was one of the District’s
six Work Experience Coordinators. Work Experience Coordinators’ duties included issuing
work permits to students, monitoring their employment activities, meeting with employers and
students at job sites, checking working conditions, and teaching Work Experience classes.
2

Work Experience Coordinators were typically assigned to oversee students at multiple schools,
and a large part of their duties were conducted off-campus at job sites. Work Experience
Coordinators received a six percent pay differential plus extra salary for working 13 more days
per year than a classroom teacher.
On August 19, 2011, Smith e-mailed District Assistant Superintendent of Personnel
Mark Bryant (Bryant). Smith stated that the Work Experience Program had low enrollment,
which he attributed to the economic recession. He offered to teach two math classes to get a
full workload and ostensibly save the District the funds it was paying other math teachers he
alleged were receiving additional one-sixth pay increments.
During departmental meetings in 2013, Smith objected to what he viewed as “unethical
practices” by his colleagues. He suggested, without presenting details, that some of his
colleagues manipulated their class enrollment numbers to keep their jobs and their one-sixth
assignments. There were no administrators present in these meetings.
In Fall 2015, Smith had the following class schedule:
Period 0 – Opportunity Class
Period 2 – Work Experience Coordinator
Period 4 – Work Experience Coordinator
Period 5 – Work Experience
Period 6 – Work Experience
Period 7 – Work Experience
As part of Smith’s Work Experience Coordinator duties, he worked with students at Desert
Winds High School and Knight High School. Of Smith’s two free periods, one was designated
his preparation period and the other was a vacant period.
Smith’s zero period Opportunity Class was a class in which seniors could make up
credits. Brett Neal (Neal), who replaced Bryant as Assistant Superintendent of Personnel in
2013, testified that some Opportunity Classes are paid hourly while others are treated as one-
3

sixth assignments, but he did not testify as to what distinguishes these two types of
Opportunity Classes from each other. In this instance, Smith e-mailed Knight High School
Assistant Vice Principal Aaron Ritter (Ritter) on August 28, 2015, agreeing with Neal that his
zero period Opportunity Class should be an hourly position and not a one-sixth assignment.
On November 6, 2015, Smith filed a grievance based on what he alleged was the
District’s refusal to provide him “equitable access to income opportunities over many years.”
He claimed the District’s actions were retaliation for his protected activities. On
November 13, 2015, Smith and Neal met to discuss the grievance. Neal denied the grievance
at this meeting.
On November 16, 2015, Smith and AVTA President Daniel Shy met with Neal. At the
meeting, Neal offered Smith two one-sixth assignments in exchange for his agreement to leave
the District in June 2016. Smith rejected the offer.
On December 4, 2015, Smith submitted a written complaint to the District’s Board of
Trustees alleging hostile treatment by Neal. Specifically, Smith asserted that Neal refused to
provide Smith with one-sixth assignments, and Smith complained about his interactions with
Neal during discussions about Smith’s possible mutual separation from the District. Smith
believed he was being retaliated against for having approached the District about alleged
unethical practices in the Work Experience department. Neal was aware of Smith’s complaint.
On December 18, 2015, Ritter e-mailed Smith his Spring 2016 schedule, which was as
follows:
Period 1 – Preparation period
Period 2 – Work Experience Coordinator
Period 3 – Algebra 1
Period 4 – Algebra 2
Period 5 – Work Experience Coordinator
Period 6 – Work Experience Coordinator
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As part of the schedule change, Smith no longer served as a Work Experience Coordinator for
Desert Winds High School. Neal testified that Smith’s Work Experience classes were
collapsed due to low enrollment. Desert Winds students were given the option of taking
another elective or taking Work Experience at Palmdale High School or Lancaster High
School. Smith did not lose any pay as a result of the schedule change.
On January 11, 2016, Ritter e-mailed Smith to ask whether he wanted to continue to
teach the zero period Opportunity Class he had taught in the Fall of 2015, which would
continue to be paid at the hourly rate. Smith declined. Smith testified that on the same date he
filed a complaint against Neal regarding “all this stuff, what [Neal] was doing, changing [his]
schedule.” However, Smith was unable to recall with whom he filed the complaint and
whether he sent it to Neal. There is no such complaint in the record.
Smith ultimately retired from the District in June 2016.
DISCUSSION
I. 	Credibility Issues
Smith excepts to certain credibility determinations in the proposed decision. The Board
defers to an ALJ’s findings of fact involving credibility determinations “unless they are
unsupported by the record as a whole.” (Anaheim Union High School District (2016) PERB
Decision No. 2504, p. 14.) This is particularly true where the ALJ’s credibility assessment is
based upon firsthand observation of witness testimony. (Los Angeles Unified School District
(2014) PERB Decision No. 2390, p. 12.) As the ultimate finder of fact, however, the Board is
free to draw contrary inferences from the evidence presented, and to form its own conclusions.
(Los Angeles Unified School District (2016) PERB Decision No. 2479, p. 13.)
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Where Neal’s and Smith’s testimony conflicted, the ALJ credited Neal’s testimony over
Smith’s based largely on Neal’s clear and consistent responses during direct and cross-
examination. Smith urges us to reach contrary credibility determinations for a number of
reasons, including on the basis that Neal allegedly did not testify accurately about the inclusion
of a credit retrieval class in Smith’s Fall 2015 schedule. Our review of the record, however,
does not reveal evidence that Neal testified inaccurately.
On the other hand, the ALJ found Smith’s testimony was at times contradicted by
documentary evidence. As an example, the ALJ questioned Smith’s insistence that his zero
period Opportunity Class was not an hourly assignment, despite the fact that the District
introduced into evidence Smith’s own e-mail agreeing that it should be an hourly assignment.
Smith’s testimony regarding his zero period class also appears to have been internally
contradictory, as he testified that the Opportunity Class served as “an opportunity to retrieve
credits,” yet he denied that it was a credit retrieval class. Smith later confirmed that his zero
period Opportunity Class was, in fact, a credit retrieval class. Although there may be a
reasonable explanation for Smith’s confusing testimony, no explanation has been provided,
and we do not find that the record favors Smith’s testimony over Neal’s. In these
circumstances, we decline to disturb the ALJ’s credibility determinations.
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II. 	The District’s Removal of Certain Assignments from Smith2
For the reasons discussed below, we also agree with the ALJ that Smith did not prove
by a preponderance of the evidence that the District retaliated against him for protected
activity. EERA prohibits employers from retaliating or discriminating against employees
because of their exercise of protected rights under the Act. (EERA, § 3453.5, subd. (a).) To
demonstrate that an employer has discriminated or retaliated against an employee in violation
of EERA section 3543.5, subdivision (a), the charging party must show that: (1) the employee
exercised rights under EERA; (2) the employer had knowledge of the 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,.) In this case, Smith has established the first three elements but has not
established the fourth element.
A. 	Protected Activity & Employer Knowledge Thereof
There is no dispute that Smith engaged in protected activity by filing a grievance on
November 6, 2015, and by requesting and having union representation at the November 16,
2015 meeting with Neal. There is similarly no dispute that the District had knowledge of these
protected activities.
The ALJ declined to find that Smith engaged in protected activity by filing a
January 11, 2016 complaint against Neal due to insufficient evidence that Smith actually filed
2 Although neither party excepted to the ALJ’s legal conclusions regarding Smith’s
2011 letter to Bryant, 2013 statements in department meetings, 2015 written complaint to the
Board of Trustees, or the adverse consequences caused by the District’s removal of three Work
Experience classes from his work schedule, we address them sua sponte to prevent the ALJ’s
analysis of those issues from becoming Board precedent. (State Employees Trades Council
United (Ventura, et al.) (2009) PERB Decision No. 2069-H, pp. 6-7; ABC Unified School
District (1990) PERB Decision No. 831b, p. 4.)
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such a complaint. Smith has not pointed to any reason why we should disturb this finding, and
we find nothing in the record to support doing so.
We disagree, however, with the proposed decision’s conclusions that Smith did not
engage in protected activity in his 2011 letter to Bryant, his 2013 statements in department
meetings about alleged unethical workplace practices, and his 2015 written complaint to the
Board of Trustees alleging hostile treatment by Neal. In reaching these conclusions, the ALJ
relied on three Board decisions holding that, to be protected under our statutes, an employee’s
complaints to management must relate to group activity.3 But in Walnut Valley Unified School
District (2016) PERB Decision No. 2495 (Walnut Valley), we disavowed those same decisions
to the extent they suggested that an employee’s complaint to management about his or her own
working conditions would not be protected activity under EERA’s right of self-representation.
(Id. at pp. 17-19.) Applying Walnut Valley, we find that Smith’s 2011 letter to Bryant, his
2013 statements in department meetings, and his 2015 written complaint to the Board of
Trustees constituted exercises of his right to self-representation because each concerned his
working conditions. Further, the District had knowledge of the 2011 letter and 2015 written
complaint. Conversely, there is no evidence that any of the management representatives
involved in establishing Smith’s Spring 2016 class schedule knew he had raised allegations of
unethical behavior in 2013 department meetings.
B. 	Adverse Action
In determining whether an employer’s action is adverse, the Board uses an objective
test and will not rely upon the subjective reactions of the employee. (Chula Vista Elementary
3 San Joaquin Delta Community College District (2010) PERB Decision No. 2091;
County of Riverside (2009) PERB Decision No. 2090-M; Los Angeles Unified School District
(2003) PERB Decision No. 1552.
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School District (2018) PERB Decision No. 2586, pp. 24-25.) “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.” (Id. at p. 25, quoting Newark Unified School District
(1991) PERB Decision No. 864, pp. 11-12 (Newark).)
We agree the District took actions against Smith that were adverse under the Newark
standard. On December 18, 2015, the District sent Smith a Spring 2016 schedule that did not
include the zero period Opportunity Class he had been teaching, a change that would reduce
Smith’s compensation.4 The ALJ also properly found the District took adverse action by
refusing to offer Smith one-sixth assignments that he desired in math and Work Experience.5
We disagree, however, with the ALJ’s conclusion that the removal of three Work
Experience classes from Smith’s schedule was not an adverse action. The ALJ correctly noted
that Smith did not lose compensation when the District removed these classes. However, that
does not end our inquiry because a charging party need not prove a loss of compensation to
show that an action was objectively adverse. (E.g., Fresno County Office of Education (2004)
PERB Decision No. 1674, pp. 13-14 [involuntary reassignment to less favorable working
conditions found adverse despite no loss in pay]; Pleasant Valley School District (1988) PERB
4 The ALJ properly found that the District’s removal of Smith’s zero period
Opportunity Class via Ritter’s December 18, 2015 e-mail constituted an adverse action as of
that date, as the District apparently took this action without Smith’s consent. If the ALJ had
found the action to have been retaliatory or otherwise unlawful, then he would have had to
consider, at least as a remedial matter, that the District offered Smith the zero period
Opportunity Class on January 11, 2016, and he turned it down.
5 To the extent Smith argued that the District took adverse action against him by
refusing to pay him at the one-sixth rate for his zero period Opportunity Class, we reject this
argument. As noted ante, Smith conceded in his August 28, 2015 e-mail to Ritter that the class
was appropriately paid at the hourly rate.
9

Decision No. 708, at pp. 4-5, 11-12 [same].) In the present circumstances, a reasonable person
might perceive Smith’s revised schedule—without the Work Experience courses—to be less
prestigious, to be a step down on the career ladder, or to feature lesser working conditions.
(Regents of the University of California (Irvine) (2016) PERB Decision No. 2493-H, p. 35.)
For instance, removing all of Smith’s Work Experience classes could have jeopardized his
future career prospects as a Work Experience teacher. We thus find the District also took
adverse action against Smith by removing his three Work Experience classes.
C. 	Nexus Between Protected Activity and Adverse Action
Although we find additional protected activity and adverse action beyond that found in
the proposed decision, these additional findings do not change the outcome of this case. Like
the ALJ, we find insufficient evidence establishing that the District took any adverse action
against Smith because of his protected activity. Indeed, to the contrary, the District provided
credible non-discriminatory reasons for all the actions it took, and Smith did not carry his
burden of proving these reasons to be pretext or that the District had a discriminatory motive.
In sum, while Smith engaged in protected activity, the District knew of the activity, and
Smith suffered adverse action, we agree with the ALJ that Smith failed to prove retaliation.
We therefore affirm the proposed decision.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-6094-E are
DISMISSED.
Members Banks and Shiners joined in this Decision.
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________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
EUGENE SMITH,
UNFAIR PRACTICE
Charging Party, 	CASE NO. LA-CE-6094-E
v. 	PROPOSED DECISION
(May 24, 2017)
ANTELOPE VALLEY UNION HIGH SCHOOL
DISTRICT,
Respondent.
Appearances: Eugene Smith on his own behalf; Bridget L. Cook, General Counsel, for the
Antelope Valley Union High School District.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
INTRODUCTION
In this case, a public school employee alleges that a public school employer violated the
Educational Employment Relations Act (EERA)1 by removing classes from his work schedule
and refusing to assign him a full schedule of classes and/or extra-duty assignments. The
employer denies committing any unfair practices.
PROCEDURAL HISTORY
On December 21, 2015, Eugene Smith (Smith) filed an unfair practice charge against
the Antelope Valley Union High School District (District). On January 14, 2016, Smith filed
first and second amended charges. On January 29, 2016, Smith filed a third amended charge.
On August 9, 2016, the Office of the General Counsel of the Public Employment
Relations Board (PERB or Board) issued a complaint alleging the District violated EERA
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

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section 3543.5, subdivision (a), by: (1) removing work experience courses and a credit
retrieval course from Smith’s work schedule; and (2) refusing to assign Smith a full schedule
of classes and/or any extra-duty assignments. All other allegations were dismissed.2 No
timely appeal of the partial dismissal was filed.
On September 6, 2016, the District filed its answer to the complaint denying any
violation of EERA and setting forth its affirmative defenses.
On September 22, 2016, an informal settlement conference was held, but the matter was
not resolved.
On November 17, 2016, Smith filed a fourth amended charge, which was considered as
a request to amend the complaint. The fourth amended charge alleged the District placed
Smith on paid administrative leave in February 2016 and that Smith retired under duress in
April 2016.
On November 21, 2016, the request to amend the complaint was denied because the
new allegations in the fourth amended charge were untimely.3
Formal hearing was held on December 14 and 15, 2016. Smith testified on his own
behalf. Brett Neal (Neal), the District’s Assistant Superintendent of Personnel, testified on
behalf of the District.
On January 3, 2017, Smith filed a document titled, “separate charge to challenge sworn
testimony of Brett Neal: case LA-CE-6094-E, December 15, 2015.”
2 The dismissed allegations concerned allegations regarding the District’s conduct that
occurred outside the applicable statute of limitations and allegations that the District colluded
with the exclusive representative against Smith.
3 Although evidence was presented at the hearing concerning Smith’s placement on
administrative leave and subsequent retirement, whether those actions constituted retaliation
under EERA will not be considered.
2

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The matter was submitted for proposed decision with the submission of post-hearing
briefs on February 17, 2017.
Motion to Reopen the Record
Smith’s January 3, 2017 filing will be considered as a motion to reopen the record since
it seeks to introduce new documents into evidence. When considering a motion to reopen the
record to admit new evidence, the Board applies the standard set forth in PERB Regulation
32410, subdivision (a),4 for a request for reconsideration based on the discovery of new
evidence.5 (State of California (Department of Corrections & Rehabilitation) (2010) PERB
Decision No. 2136-S, pp. 2-3, citing State of California (Department of Parks and Recreation)
(1995) PERB Decision No. 1125-S.) The regulation provides in relevant part:
A request for reconsideration based upon the discovery of new
evidence must be supported by a declaration under penalty of
perjury which establishes that the evidence: (1) was not
previously available; (2) could not have been discovered prior to
the hearing with the exercise of reasonable diligence; (3) was
submitted within a reasonable time of its discovery; (4) is
relevant to the issue sought to be reconsidered; and (5) impacts or
alters the decision of the previously decided case.
Smith’s motion to reopen the record includes what Smith states are portions of
“personnel schedules” presented to the District’s Board of Trustees on August 19, 2015,
4 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
5 PERB Regulations governing the conduct of unfair practice proceedings (PERB
Regulations 32165 through 32230) do not have a similar regulation for reopening an
evidentiary hearing record once the formal hearing has been closed. However, PERB
Regulations 32190 and 32170, subdivisions (a), (d), and (f), taken together arguably authorize
the ALJ to reopen the hearing to take new evidence. Regardless, it seems unlikely that the ALJ
could reopen the hearing under a procedure which is less restrictive than that outlined by the
Board for itself in PERB Regulation 32410, subdivision (a). The Board’s own procedure,
moreover, provides a useful framework form which ALJs may evaluate requests to consider
new evidence, in the absence of more specific guidance from PERB’s Regulations or from the
Legislature.
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September 2, 2015, October 7, 2015, November 4, 2015, and December 9, 2015. Smith’s
motion states that he obtained these documents from the District’s website, and Smith seeks to
introduce these documents to impeach Neal’s testimony regarding his knowledge of Smith and
other employees’ schedules.
To begin with, Smith’s motion does not include the required declaration under penalty
of perjury, and the motion can be denied on that basis alone. Additionally, the documents
Smith seeks to enter into the record were generated prior to the hearing and available for
examination on the District’s website. There is nothing to indicate Smith did not have access
to these documents prior to the hearing. In fact, Smith’s testimony makes multiple references
to his review of personnel records, which he used to form the belief that he was being
inappropriately denied One-Sixth assignments and the corresponding extra-duty pay attached
to those assignments. Based on these reasons, Smith’s motion to reopen the record is denied.
FINDINGS OF FACT
Jurisdiction
Smith was a public school employee within the meaning of EERA section 3540.1,
subdivision (j), and was employed by the District as a Work Experience Coordinator. He
possesses a teaching credential that authorizes him to teach math at the secondary level.
The District is a public school employer pursuant to EERA section 3540.1,
subdivision (k). There are roughly 22,000 students in the District spread across 14 school
sites.
4

The Collective Bargaining Agreement
Neal became the District’s Assistant Superintendent of Personnel in 2013. Since that
time, he has served as the District’s chief negotiator. All grievances also go through his office,
and he participates in grievance meetings himself.
The Antelope Valley Teachers Association (AVTA) is an exclusive representative
within the meaning of EERA section 3540.1, subdivision (e), and represents a unit of
certificated employees within the District that includes Smith.
At all relevant times, AVTA and the District were parties to a collective bargaining
agreement (CBA) whose term was July 1, 2013 through June 30, 2016. Relevant provisions
are as follows:
Article 4.1
An individual unit member’s daily starting and/or ending time
may be adjusted after the commencement of the regular school
year (to allow for 0 and 7th period offerings) provided the
number of school-based hours are in accordance with this article
and the change is agreed to by the unit member. The Association
shall be notified ten (10) days in advance of any such change in
the unit member’s workday. Notification shall be sent to the
current Association President at his/her District e-mail address.
Article 4.2.2
School Work Experience teachers will receive a regular
preparation period, plus one (1) period for processing work
experience permits of students enrolled in their Work Experience
classes. Additionally, School Work Experience teachers will
receive a release period(s) to evaluate job sites of students for
whom they have issued work permits, exclusive of permits issued
to students enrolled in their Work Experience classes, according
to the following schedule.
1 to 100 students: one (1) release period
101 to 200 students: two (2) release periods
More than 200 students: three (3) release periods
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Article 4.5
Unit members who are assigned or who volunteer to serve as
period substitutes during conference/preparation period shall
receive compensation according to the following:
First five (5) periods per month at the hourly rate of
$33.18
Any additional periods per month at the hourly rate of
$38.99
Article 4.6
There shall be a ratio of five teaching periods to one
conference/preparation period for each two-week time period for
unit members. Where a teacher agrees to undertake an
assignment of an additional period of teaching beyond the regular
five (5) periods of teaching, such unit member shall receive
additional compensation at the prorate salary which is 0.1667
times the salary for five teaching periods for each day he/she
actually teaches the additional period and for each day he/she is
scheduled to teach the additional period but is absent on paid
leave. All regular assignments shall include at least one
conference/preparation period during each regular school day. If
the District determines that there is a need for an overall increase
in the number of semester class sections, the District will give
notice thereof to the Association.
Article 4.7
One-Sixth assignments shall be distributed according to the
following priorities:
a) 	Program Needs.
b) 	Master Schedule considerations may limit the period in
which a section is offered and/or the manner in which
sections may be moved or rearranged.
c) 	Credential authorization.
d) 	The District shall, where possible, give priority to teachers
who are already teaching within a department which is
adding sections.
e) 	Seniority of unit members.
f) 	Recency of experience in teaching the content of the
section.
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Article 6.0.4
Reassignment means a change in discipline (e.g., [e]nglish, math,
science) a unit member is assigned to teach within the same
school upon the completion of the master schedule each semester.
The provisions of this Article do not apply to changes of actual
courses taught by unit members that are within the same
discipline.
Article 6.0.4.2
Involuntary reassignments are those initiated by the District and
may be the result of, but are not limited to, enrollment changes,
program changes, school closures, changes in curriculum or
course offerings, educational needs of the pupils, or staff
vacancies.
Article 6.1.3
Before involuntary reassignments are made during the school
year, the site administrator shall post for three (3) days the site
opening for unit member consideration. During the summer,
however, the administration shall attempt to contact only those
unit members who have provided a written expression of interest
in a particular area of the curriculum or a particular job
classification.
Article 6.1.6
Mid-year reassignments of unit members to meet unanticipated
needs as a result of changes in enrollment, changes in graduation
requirements, or changes in the composition of the bargaining
unit due to retirements, resignations, dismissals or leaves, may be
made by the site administrator for the balance of the school year
after consultation with the site specialists and affected unit
member(s).
Background
On November 3, 1997, the District hired Smith to teach math at Littlerock High School
(LHS). In 2003, Smith was transferred to Knight High School (KHS) where he taught math for
two years before becoming the Work Experience Coordinator at the site. Neal, who was the
7

principal of KHS at the time, thought Smith would be a good fit for the Work Experience
Coordinator position because of his positive interactions with students.
There are six Work Experience Coordinators in the District. Work Experience
Coordinators are typically assigned to oversee students at more than one school site. They are
responsible for issuing work permits to students and monitoring their employment activities.
Work Experience Coordinators teach a Work Experience class where they meet with students
at least once a week to check up on them. Work Experience Coordinators write work permits
for students in their Work Experience classes as well as any other students on campus who
need a work permit, but have elected not to take the Work Experience class. Work Experience
Coordinators receive a six percent pay differential in addition to extra salary for working
13 more days than a classroom teacher.
A large part of a Work Experience Coordinator’s duties are conducted off campus,
including meeting with employers at the job site, checking working conditions, and visiting
students at their work site. They are also responsible for ensuring that students progress in
school while fulfilling their obligations at work. As a Work Experience Coordinator, Smith
spent a considerable amount of time in the community interfacing with employers and
checking up on students at their workplace. This would sometimes require him to work odd
hours, such as very early in the morning or very late at night.
Neal oversees the Work Experience department’s budget. Although he monitors the
program in terms of its overall performance in the District, he does not manage its day-to-day
operations.
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The Current Dispute
On August 19, 2011, Smith e-mailed a letter to Mark Bryant (Bryant), the District’s
then Assistant Superintendent of Personnel. Smith’s letter stated the Work Experience
program had low enrollment, which he attributed to the economic recession. As a result, Smith
believed his workload did not justify his salary. He offered to teach two math classes to get a
“full load,” which he believed would relieve the District of having to pay other teachers One-
Sixth extra-duty pay to teach those classes.
On September 7, 2012, Smith mailed a letter to all teachers on campus regarding the
issue of student tardiness on campus. Smith urged the union to demand more supervision in
the hallways from classified staff so teachers would not be required to divert their attention
from their classes to do so.
Smith testified that during department meetings in 2013, he raised objections to what he
viewed as “unethical practices” where some of his colleagues devised ways to manipulate their
numbers to keep their jobs and their One-Sixth assignments. Smith did not articulate specifics
regarding how his colleagues were manipulating their numbers. There were no administrators
present in these meetings.
In Fall 2015, Smith’s class schedule was as follows:
Period 0 – Opportunity Class
Period 2 – Work Experience Coordinator
Period 4 – Work Experience Coordinator
Period 5 – Work Experience
Period 6 – Work Experience
Period 7 – Work Experience
Smith was also assigned to be the Work Experience Coordinator for students at Desert Winds
High School (DWHS) in addition to KHS. Of Smith’s two free periods, one was designated
his preparation period and the other was a vacant period.
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Smith’s zero period Opportunity Class was a class where high school seniors could
make up credits. Neal testified that he plays a predominant role in determining staffing needs
for sites. He stated the Opportunity Class Smith taught was not eligible for One-Sixth extra-
duty pay because it was deemed part of the supplemental instruction program, which is
assigned on an hourly basis per Article 4.5. However, he also testified there are Opportunity
Classes that are treated like subject matter classes instead of as part of the supplemental
instruction program. Some of these classes are also taught during zero period. Neal did not
testify as to what distinguishes the two types of Opportunity Classes from each another, but
Smith admitted to sending an e-mail to KHS Assistant Vice-Principal Aaron Ritter (Ritter) on
August 28, 2015, agreeing with Neal that his zero period Opportunity Class should be an
hourly position and not a One-Sixth assignment.
There were roughly twenty students enrolled between Smith’s Work Experience classes
in Fall 2015, which Smith considered to be low enrollment. If there are low enrollment
numbers in a program, the District will work with site administrators to collapse those classes
and move funds into successful or growing programs.
On October 19, 2015, Neal received a letter from Smith where Smith offered to retire
from the District effective June 30, 2016, in exchange for being placed on paid administrative
leave or in a role that did not require regular attendance on site. Prior to this offer, Smith had
sent an e-mail to Neil on February 12, 2014, offering to resign his position in exchange for the
District “buying out” his contract ending on June 30, 2014. Neal met with Smith on
November 2, 2015, and discussed Smith’s offer. Neal testified that he never told Smith he was
going to take away his job. However, he did discuss Smith’s low enrollment in his Work
Experience classes and how that may result in the need to collapse some of his classes.
10

On November 6, 2015, Smith filed a grievance stating in part:
This complaint addresses the refusal of the district to provide
equitable access to income opportunities over many years. I have
been denied work on a regular basis while colleagues in my
department have reaped substantial benefit. I argue these actions
are retaliatory in nature due to my advocacy activities.
Smith believed that he was being inappropriately denied opportunities for One-Sixth
assignments. He testified that he reviewed documents presented to the Board of Trustees that
showed upwards of 56 One-Sixth assignments in the District. However, Smith did not know
which teaching credentials the teachers who received these assignments possessed or what
their circumstances were. None of them were teachers at KHS.
On November 13, 2015, Smith met with Neal to discuss Smith’s grievance. Neal
denied the grievance at this meeting. He also discussed the type of assignment Smith would
have if his Work Experience classes needed to be collapsed. Since Smith was credentialed to
teach math, the District wanted Smith to teach math to supplement his assignment as a Work
Experience Coordinator.
On November 16, 2015, Smith and Daniel Shy (Shy), the AVTA President, met with
Neal. Neal offered to give Smith two One-Sixth assignments in exchange for his agreement to
leave the District in June 2016. Smith rejected the offer. At the hearing, Smith testified Neal
stated he would not receive any One-Sixth assignments unless he agreed to leave the District.
Neal denied making these statements.
On November 18, 2015, Smith e-mailed Neal restating his willingness to retire from the
District on June 30, 2016, if certain terms were met. In addition to his retirement, Smith stated
he would drop his grievance. Later that day, Smith e-mailed David Vierra, the District’s
11

Superintendent, and stated he made an offer to Neal where he would teach four Algebra 1
classes and write work permits for two One-Sixth assignments until June 2017 then retire.
On November 30, 2015, the District sent Smith a proposal where he would retire on
June 30, 2016, in exchange for being placed on paid administrative leave and withdrawing all
claims against the District. On December 1, 2015, Smith rejected the District’s proposal
because he did not want to waive his right to pursue his grievance or charges filed with the
Equal Employment Opportunity Commission (EEOC).
In December 2015, Smith sent Neal a letter asserting that Smith had been the target of
retaliation in the work place and had filed a complaint with the EEOC. He also stated he had
been ostracized when he reported alleged corruption in his department to Neal. Smith’s letter
also offers a proposal that he would retire in June 2017 in exchange for teaching four periods
of Algebra 1 and three periods of handling work permits at his school site with payment for
two One-Sixth assignments.
On December 14, 2015, Smith submitted a letter to the District’s Board of Trustees
complaining of hostile treatment from Neal. Specifically, Smith complained of Neal’s refusal
to provide Smith with One-Sixth assignments and his interactions with Smith during
discussions about Smith’s possible mutual separation from the District. The letter expressed
Smith’s belief that he was being retaliated against for having approached the District about
alleged unethical practices in the Work Experience department. Smith sought to negotiate
directly with the Board of Trustees regarding his mutual separation from the District. Neal
testified that he had seen Smith’s complaint and recalled it being presented to the Board of
Trustees.
12

On December 18, 2015, Ritter e-mailed Smith with his new Spring 2016 schedule,
which was as follows:
Period 1 – Preparation period
Period 2 – Work Experience Coordinator
Period 3 – Algebra 1
Period 4 – Algebra 2
Period 5 – Work Experience Coordinator
Period 6 – Work Experience coordinator
In addition to the new schedule, the District told Smith he no longer had to perform Work
Experience Coordinator duties for DWHS. Neal testified that Smith’s Work Experience
classes were collapsed due to low enrollment. The students were given the option of taking
another elective or taking Work Experience at Palmdale High School or LHS. Three students
went to LHS and took Work Experience from Robin Stump-Whetzel (Stump-Whetzel), another
Work Experience Coordinator. She did not receive any additional pay for taking on those
students. Neal testified he reviewed Smith’s enrollment numbers because Smith specifically
mentioned his low enrollment. He did not review the enrollment numbers of other Work
Experience Coordinators. Neal testified that he was aware that the Spring 2016 schedule gave
Smith one more Work Experience Coordinator period than he was entitled to under the CBA,
but it was Neal’s hope that Smith could use that time to grow the program. Smith did not
suffer any loss of pay as a result of the schedule change.
On December 28, 2015, Smith e-mailed Neal stating that he had filed a complaint
against Neal with the California Commission on Teacher Credentialing (CCTC). Neal testified
that apart from Smith’s e-mail, he did not receive any notice of a complaint being filed against
him with the CCTC. A copy of the complaint was not submitted into the hearing record.
13

In January 2016, Smith submitted a proposal to the District stating that he would retire
from the District effective December 31, 2016, and withdraw all claims against the District in
exchange for the following schedule:
Period 0 – Senior Opportunity
Period 1 – Coordinator
Period 2 – Coordinator
Period 3 – Algebra
Period 4 – Algebra
Period 5 – Work Experience
Period 6 – Coordinator
The District responded by presenting Smith with a settlement agreement resolving all claims
that he had against the District in exchange for the following class schedule up to his
retirement on December 31, 2016:
Period 0 – Senior Opportunity
Period 1 – Coordinator
Period 2 – Coordinator
Period 3 – Algebra
Period 4 – Algebra
Period 5 – Work Experience
Period 6 – Coordinator
Neal testified that this configuration of classes would entitle Smith to two One-Sixth
assignments because he would be teaching seven full periods of classes, with his zero period
Opportunity Class constituting a full class and not a part of the supplemental instruction
program. Smith rejected the offer because it did not explicitly grant him two One-Sixth
assignments and did not adequately resolve his grievance, which he believed to be worth
$135,000.
On January 11, 2016, Ritter e-mailed Smith asking if he wanted to continue to teach his
zero period Opportunity Class, which would be at the hourly rate. Smith replied that he did not
wish to do so. Smith testified that on the same date he filed a complaint against Neal regarding
14

“all this stuff, what [Neal] was doing, changing [his] schedule.” However, he was unable to
state who he filed the complaint with or whether it was sent to Neal.
On January 21, 2016, Smith e-mailed Patricia Beane (Beane), another Work Experience
Coordinator, stating:
pat [sic], someone told me they were suspicious about your
immigration status when you were hired by the district.
I have known this for a long time, but I never knew what the deal
was. I just wanted to share this with you.
Smith testified at some point in time he heard a rumor that Beane did not have proper
immigration status. However, apart from the rumor, Smith had no independent knowledge of
Beane’s immigration status. Beane forwarded Smith’s e-mail to Shy, who then forwarded it on
to Neal.
On February 5, 2016, Smith e-mailed Stump-Whetzel stating:
i [sic] have filed a grievance on the placement of KHS work
experience students at LHS[.] in [sic] the grievance, i [sic] cite
the rumored illegal immigration status of one coordinator and the
lack of certification of half the staff.
regrettably [sic], i [sic] do not feel like i [sic] have any other
choices at this time.
as [sic] department chair, I feel obligated to advise you of this
action.
Stump-Whetzel forwarded Smith’s e-mail to Neal.
On February 8, 2016, Smith sent a text message to Beane stating:
Pat. [Neal] is trying to take my job. I am fighting with
everything I have to stop this threat. Everything.
On February 9, 2016, Smith sent two more text messages to Beane stating:
15

Immigration info came from [Stump-Whetzel]. She was talking
trash about u [sic] and brought it up. [Neal] is trying to take my
job. And so it goes.
Ask yourself how else I would know.
On February 11, 2016, Smith sent an e-mail to members of the California Association
of Work Experience Educators questioning Stump-Whetzel’s character, stating that she took
students away from him and was putting his job in jeopardy. The e-mail also stated the
District’s Work Experience Coordinators lacked appropriate certification, had plotted to
“scam” the District, and at least one of them had unresolved immigration issues. Stump-
Whetzel forwarded Smith’s e-mail to Neal.
On February 14, 2016, Stump-Whetzel filed a formal complaint against Smith based on
what she described to be “erratic behavior” and expressed concern over the safety of all female
Work Experience Coordinators. Neal placed Smith on paid administrative leave and initiated
an investigation into the complaint.
On April 12, 2016, Smith submitted his retirement from the District, effective
June 30, 2016. He testified that he submitted his retirement because he feared that the District
was going to take action affecting his medical benefits. Neal testified that at the time Smith
submitted his retirement, the District had concluded its investigation, but had made no decision
as to what course of action to pursue.
ISSUES
1. 	Did the District retaliate against Smith by removing Work Experience courses
and a credit retrieval course from his work schedule in December 2015?
2. 	Did the District retaliate against Smith by refusing to assign him One-Sixth
assignments from November 2015 through February of 2016?
16

CONCLUSIONS OF LAW
To demonstrate that an employer discriminated or retaliated against an employee in
violation of EERA section 3543.5, subdivision (a), the charging party must show that: (1) the
employee exercised rights under EERA; (2) the employer had knowledge of the 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. 5-6 (Novato).)
A. 	Protected Activity
The complaint enumerates six protected acts by Smith: (1) sending a letter to Bryant in
2011 regarding the manner in which the District assigns classes; (2) notifying the District in
2011 of unethical practices in the Work Experience department at KHS; (3) filing a grievance
on October 30, 2015; (4) requesting representation from AVTA for meetings with the District
in September, October, and November 2015; (5) sending a complaint to the District’s Board of
Trustees on December 14, 2015, regarding class assignments; and (6) filing a complaint
against Neal on January 11, 2016.
During the formal hearing, Smith also presented evidence of a September 7, 2012 letter
he sent to staff at KHS regarding student tardiness on campus. Consideration of protected acts
not described in the PERB complaint is appropriate where those activities are related to the
claims in the complaint and where the parties have had the full opportunity to litigate all
issues. (Regents of the University of California (2012) PERB Decision No. 2302-H, proposed
decision at p. 15, citing Lake Elsinore Unified School District (2012) PERB Decision
No. 2241.) These conditions are not met in this case. The September 7, 2012 letter is not
mentioned in any of Smith’s unfair practice charges, nor is it related to the claims in the
17

complaint. Additionally, Smith did not adequately put the District on notice that he intended to
assert the letter constituted protected activity, which deprived the District of its ability to fully
litigate the claim. Accordingly, the September 7, 2012 letter will not be considered.
1. 	2011 Letter to Bryant
An employee can engage in protected activity when individually seeking to enforce
rights stated in a collective bargaining agreement or when employees jointly prosecute alleged
violations of workplace rights. (Coachella Valley Unified School District (2013) PERB
Decision No. 2342, p. 13 (Coachella), citing Jurupa Unified School District (2012) PERB
Decision No. 2283). PERB has held that individual complaints related to employment matters
made by an employee to his superior are protected under an employee’s right to self-
representation. (San Joaquin Delta Community College District (2010) PERB Decision
No. 2091, p. 3, citing Pleasant Valley School District (1988) PERB Decision No. 708.)
However, the right to self-representation is not unlimited. (Ibid.) Employee complaints are
only protected when those complaints “are a logical continuation of group activity.” (Ibid.,
citing County of Riverside (2009) PERB Decision No. 2090-M and Los Angeles Unified
School District (2003) PERB Decision No. 1552.) Where, however, an employee’s complaint
is undertaken alone and for his sole benefit, that individual’s conduct is not protected. (Ibid.,
citing County of Riverside, supra, PERB Decision No. 2090-M, Los Angeles Unified School
District, supra, PERB Decision No. 1552, and Oakdale Union Elementary School District
(1998) PERB Decision No. 1246.)
Smith’s letter to Bryant is simply a request for a “full load” for himself so he can be
eligible for a One-Sixth assignment with the corresponding extra-duty pay. It is not a
continuation of group activity. There is no indication the letter was the result of any
18

________________________
conversations with his colleagues about their schedules or that it was generated as part of any
negotiated dispute resolution procedure. It also does not seek to enforce any particular
provisions of the CBA. Therefore, the letter does not constitute protected activity.6
2. 	2013 Notice to the District of Unethical Practices
The Board’s jurisdiction is limited to the determination of unfair practices arising under
EERA and the other public sector labor statutes that it administers. (Coachella, supra, PERB
Decision No. 2342, p. 12.) Whistleblowing in California K-12 public school is protected under
Education Code section 44100 et seq. (Ibid.) It is well established under PERB precedent that
the Board does not have jurisdiction to enforce a whistleblower statute or pure Education Code
violations. (Ibid., citing Union of American Physicians & Dentists (Menaster) (2007) PERB
Decision No. 1918-S; Alvord Educator’s Association (Bussman) (2009) PERB Decision
No. 2046; American Federation of State, County and Municipal Employees, Council 36
(Moore) (2011) PERB Decision No. 2165-M; San Francisco Unified School District (2009)
PERB Decision No. 2040; Wygant v. Victor Valley Joint Union High School Dist. (1985) 168
Cal.App.3d 319, 323.)
While the specifics are unclear, the gravamen of Smith’s complaints to his coworkers in
2013 were that some of them were misrepresenting enrollment numbers to maintain their
positions and avoid layoff. Student enrollment and certificated employee layoffs are governed
by the Education Code, and Smith’s complaints are whistleblower complaints under the
6 Even if Smith’s letter to Bryant in 2011 was protected activity, it could not support a
prima facie case of retaliation because it is unclear if Neal knew that Smith sent the letter to
Bryant and a four-year gap between the letter and the adverse actions in 2015 and 2016 is too
remote to support a finding of nexus based on temporal proximity.
19

________________________
Education Code. They do not seek to enforce workplace rights or other rights stated in the
CBA. Therefore, Smith’s complaints do not constitute protected activity.7
3. 	October 30, 2015 Grievance
Filing a grievance constitutes protected activity. (Los Angeles Unified School District
(2012) PERB Decision No. 2244, p. 7, citing San Bernardino City Unified School District
(1998) PERB Decision No. 1270.) Therefore, Smith engaged in protected activity when he
filed a grievance on November 6, 2015.8
4. 	Requesting AVTA Representation
Requesting union representation for a meeting with a supervisor constitutes protected
activity. (Los Angeles Unified School District (1991) PERB Decision No. 874, p. 5.)
Therefore, Smith engaged in protected activity when he asked Shy to accompany him to a
meeting with Neal on November 16, 2015. However, the record does not support the
allegations in the complaint that Smith also asked for AVTA representation in September and
October 2015. There is no evidence of Smith meeting with administrators in September 2015,
and while Smith met with Neal in October 2015, there is no evidence that he asked for AVTA
representation at that meeting.
5. 	December 14, 2015 Complaint to the Board of Trustees
Smith’s complaint to the Board is essentially a complaint against Neal for not agreeing
to Smith’s terms for a mutually agreed separation from the District and is an attempt to
7 Similar to Smith’s letter to Bryant in 2011, even if his complaints of “unethical
practice” in 2013 were protected activity, they could not support a prima facie case for
retaliation because there is no evidence Neal knew about the complaints and a two-year gap
between the complaints in 2013 and the adverse actions in 2015 and 2016 are too remote to
support a finding of nexus based on temporal proximity.
8 There is no evidence of Smith filing a grievance on October 30, 2015.
20

________________________
negotiate directly with the Board of Trustees. It is not a continuation of group activity. The
complaint deals only with Smith’s specific situation and does not seek to improve the terms
and conditions of employment for any other employee or otherwise advocate on their behalf.
Therefore, the complaint does not constitute protected activity.
6. 	January 11, 2016 Complaint against Neal
There is insufficient evidence to support a finding that Smith filed a complaint against
Neal on January 11, 2016. A copy of the complaint is not in the record, and Smith’s testimony
alone is insufficient to corroborate the contents of the complaint. (See Cal. Evid. Code
§ 1523.) In addition, it is unclear with whom Smith filed the complaint. Accordingly, it has
not been established that Smith engaged in protected activity by filing a complaint against Neal
on January 11, 2016.9
B. 	Knowledge of Protected Activities
The charging party must prove that those responsible for the adverse acts knew of the
protected activity. (Los Angeles Unified School District (2014) PERB Decision No. 2390,
proposed decision p. 12; Oakland Unified School District (2009) PERB Decision No. 2061,
pp. 8-9; Morgan Hill Unified School District (1985) PERB Decision No. 554, pp. 5-6.)
Of the protected activities established in the record, Neal was aware Smith filed the
grievance on November 6, 2015, because he met with Smith about the grievance on
November 13, 2015. Neal was also aware Smith asked Shy to attend the meeting on
November 16, 2015, because he was present at the meeting.
9 Although Smith stated he filed a complaint against Neal with the CCTC on
December 28, 2015, this complaint is also not in the record, and Smith’s testimony alone is
again insufficient to corroborate the contents of the complaint.
21

C. 	Adverse Action
In determining whether evidence of adverse action is established, the Board uses an
objective test and will not rely upon the subjective reactions of the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689, p. 12.) 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, pp. 11-12; emphasis added;
footnote omitted.)
1. 	Removal of Work Experience and Opportunity Classes
The removal of Smith’s three Work Experience classes did not have an adverse impact
on his salary or benefits. He continued to receive the same pay as he did before those classes
were removed from his schedule, including the six percent salary differential and the extra pay
associated with him working 13 extra days each school year. Although his Work Experience
classes were removed from his schedule, he remained a Work Experience Coordinator and had
the same duties as he did before. Where an assignment does not result in any change in pay or
benefits, the Charging Party must show that the assignment was objectively adverse in some
other way. (Compton Unified School District (2003) PERB Decision No. 1518, proposed
decision pp. 30-31.) Here, Smith made no such showing. Accordingly, the removal of his
Work Experience classes from his schedule was not an adverse action.
The removal of the Opportunity Class impacted Smith’s salary. The CBA entitled
Smith to receive additional pay at an hourly rate for teaching the Opportunity Class. By
removing this class from his schedule, he was deprived of the opportunity to receive extra
22

income. Accordingly, the removal of the Opportunity Class from Smith’s schedule constituted
an adverse action.
2. 	Refusal to Provide One-Sixth Assignments
The CBA entitles teachers who perform One-Sixth assignments to a pay differential
equal to one-sixth of their salary. The refusal to provide Smith with One-Sixth assignments
deprived him of the opportunity for this extra pay and constituted an adverse action.
D. 	Nexus
The adverse actions above occurred in close temporal proximity to Smith’s protected
activity. However, while the timing of the employer’s adverse action in close temporal
proximity to the employee’s protected conduct is an important factor (North Sacramento
School District (1982) PERB Decision No. 264, p. 23.), it does not, without more, demonstrate
the necessary connection or “nexus” between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227, p. 13.) Facts
establishing one or more of the following additional factors must also be present: (1) the
employer’s disparate treatment of the employee (State of California (Department of
Transportation) (1984) PERB Decision No. 459-S, p. 6.); (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, p. 20.); (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, p. 13.); (4) the employer’s cursory investigation
of the employee’s misconduct (City of Torrance (2008) PERB Decision No. 1971-M, p. 17,
citing 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
23

Unified School District (2003) PERB Decision No. 1529, p. 10.) or the offering of
exaggerated, vague, or ambiguous reasons (McFarland Unified School District (1990) PERB
Decision No. 786, p. 12.); (6) employer animosity towards union activists (Jurupa Community
Services District (2007) PERB Decision No. 1920-M, pp. 15-16.); or (7) any other facts that
might demonstrate the employer’s unlawful motive (Novato, supra, PERB Decision No. 210,
pp. 6-7).
1. 	Removal of Opportunity Class
The record does not contain any circumstantial evidence besides timing to suggest the
District removed Smith’s Opportunity Class because of his protected activities. Smith did not
establish which procedures the District must follow (if any) when removing classes that are
part of the supplemental instructional program. Smith argues the Opportunity Class was never
an hourly assignment and always part of his regular assignment. However, he admitted to
sending an e-mail to Ritter on August 28, 2015, agreeing that the class was properly
characterized as an hourly assignment. Therefore, it is found to have been part of the
supplemental instructional program.
Smith argues the District failed to follow Article 4.1 of the CBA when it removed the
Opportunity Class from his schedule because he never agreed to the removal of the
Opportunity Class. However, on January 11, 2016, Smith explicitly told Ritter that he did not
wish to teach the Opportunity Class. Therefore, the change to Smith’s start time caused by the
removal of the Opportunity Class was done with Smith’s agreement.
Based on the above, Smith did not establish a nexus between his protected activity and
the removal of his Opportunity Class. Accordingly, he did not establish a prima facie case for
retaliation, and that allegation is dismissed.
24

2. 	Refusal to Provide One-Sixth Assignments
The record also does not contain any circumstantial evidence besides timing to suggest
the District refused to assign Smith One-Sixth assignments because of his protected activities.
Smith argues that he was treated differently than other employees who received One-Sixth
assignments, but he does not states how he was treated differently apart from the fact that other
employees received One-Sixth assignments and he did not. Smith admitted he did not work
with any of those teachers and was unaware of those employees’ circumstances, such as what
their teaching credential authorized them to teach. Without any information about the teachers
who received the One-Sixth assignments, it is not possible to determine whether Smith was
qualified to teach those positions and was denied the opportunity to do so.
Smith asserts that Neal told him he would never receive a One-Sixth assignment unless
he mutually agreed to separate from the District. Neal denied making any such statement.
Neal’s testimony is credited over Smith’s where they conflict. The record includes statements
from Smith that were later contradicted by evidence, such as his insistence that his Opportunity
Class was not an hourly assignment. On the other hand, Neal’s testimony was always clear
and consistent throughout direct and cross-examination.
Based on the above, Smith did not establish a nexus between his protected activity and
the District’s failure to assign him One-Sixth assignments. Accordingly, he did not establish a
prima facie case for retaliation, and that allegation is dismissed.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-6094-E,
Eugene Smith v. Antelope Valley Union High School District, are hereby DISMISSED.
25

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 received by 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 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, 32091 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
26

on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
27